[Federal Register Volume 81, Number 76 (Wednesday, April 20, 2016)]
[Rules and Regulations]
[Pages 23180-23187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08916]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2013-0556, FRL-9945-14-Region 8]
Promulgation of State Implementation Plan Revisions;
Infrastructure Requirements for the 2008 Lead, 2008 Ozone, 2010
NO2, 2010 SO2, and 2012 PM2.5 National
Ambient Air Quality Standards; Montana
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving
elements of State Implementation Plan (SIP) revisions from the State of
Montana to demonstrate the State meets infrastructure requirements of
the Clean Air Act (CAA) for the National Ambient Air Quality Standards
(NAAQS) promulgated for ozone on March 12, 2008, lead (Pb) on October
15, 2008, nitrogen dioxide (NO2) on January 22, 2010, sulfur
dioxide (SO2) on June 2, 2010 and fine particulate matter
(PM2.5) on December 14, 2012. The EPA is also approving
110(a)(2)(D)(ii) for the 1997 and 2006 PM2.5 NAAQS. The EPA
is conditionally approving CAA section 110(a)(2)(C) and (J) with regard
to Prevention of Significant Deterioration (PSD) and element 3 of
110(a)(2)(D)(i)(II) for the 2008 ozone, 2008 Pb, 2010 NO2,
2010 SO2, and 2006 and 2012 PM2.5 NAAQS. The EPA
is disapproving element 4 of CAA section 110(a)(2)(D)(i)(II) for the
2008 ozone, 2010 NO2, 2010 SO2, and 2006 and 2012
PM2.5 NAAQS. Finally, the EPA is approving SIP revisions the
State submitted to update Montana's PSD program and provisions
regarding state boards.
DATES: This rule is effective on May 20, 2016.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R08-OAR-2013-0556. All documents in the docket are
listed on the http://www.regulations.gov Web site. 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, is not placed on the
Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available either electronically
through http://www.regulations.gov or in hard copy at the Air Program,
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129. The 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: Abby Fulton, Air Program, U.S.
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129, 303-312-6563,
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
Infrastructure requirements for SIPs are provided in section
110(a)(1) and (2) of the CAA. Section 110(a)(2) lists the specific
infrastructure elements that a SIP must contain or satisfy. The
elements that are the subject of this action are described in detail in
our proposed rulemaking (NPR) published on January 26, 2016 (81 FR
4225).
In our NPR, the EPA proposed to approve, conditionally approve,
take no action on, and disapprove infrastructure elements for the 2008
Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 1997, 2006
and 2012 PM2.5 NAAQS from the State's certifications. In
this rulemaking, we are taking final action to approve infrastructure
elements from the State's certifications. We are also conditionally
approving elements (C), D(i)(II) element 3 and (J) with respect to the
requirement to have a PSD program that meets the requirements of part C
of Title 1 of the Act. The EPA is taking final action to disapprove
(D)(i)(II) element 4 for the 2006 PM2.5, 2008 ozone, 2010
NO2, 2010 SO2, and 2012 PM2.5 NAAQS.
We are also taking final action to approve revisions to the
Administrative Rules of Montana (ARM) from the August 21, 2012
submittal and conditionally approve a revision from the March 24, 2015
submittal to bring Montana's PSD program up to date with respect to
current requirements for PM2.5. In this action, we are
taking final action to approve new ARM and sections of the Montana Code
Annotated submitted on December 17, 2015 to satisfy requirements of
element (E)(ii), state boards.
II. Response to Comments
We received two comment letters during the public comment period.
One comment letter was submitted anonymously and the other by Andrea
Issod from the Sierra Club Environmental Law Program (Sierra
[[Page 23181]]
Club) and Anne Hedges from the Montana Environmental Information Center
(MEIC). We also received a request for comment period extension from
Andrea Issod from the Sierra Club. The EPA contacted the commenter and
after a short discussion, the commenter decided not to follow through
with their extension request.
Comment 1: The EPA cannot approve the PSD portions of all these
Infrastructure SIPs until EPA has finally approved the Class I and
Class II PM2.5 increments into the Montana SIP. I appreciate
EPA's efforts to address this issue.
Response: We agree with the commenter that adoption of
PM2.5 increments is a necessary requirement when assessing a
state's PSD program for the purposes of CAA Section 110(a)(2)(C),
(D)(i)(II) element 3, and (J). In this action, we are approving the
necessary portions of Montana's August 21, 2012 submission to satisfy
the requirements of the October 20, 2010 rule, ``Prevention of
Significant Deterioration (PSD) for Particulate Matter Less Than 2.5
Micrometers (PM2.5)--Increments, Significant Impact Levels
(SILs) and Significant Monitoring Concentration (SMC)'' (75 FR 64864).
Montana adopted 40 CFR 51.166(c)(1), which includes Class I and Class
II increments, into ARM 17.8.804(1). By meeting this structural
requirement for the PSD program in its SIP, the State has also met the
relevant Infrastructure SIP elements relevant to the PSD program.
Accordingly, the EPA concludes that the issue identified by the
commenter has been properly addressed.
Comment 2: The Sierra Club and Montana Environmental Information
Center (MEIC) Comment Letter states the following on pages 2, 3, 26 and
27:
Sierra Club and Montana Environmental Information Center (MEIC)
submit to EPA that the Montana PSD program as implemented by MTDEQ
fails to require PSD permits for all modified major sources that are
required to be covered under the SIP PSD permitting program pursuant
to 40 CFR 51.166, due to MTDEQ's policy interpretations of its PSD
program that result in rules that are less stringent and thus less
inclusive than the federal PSD program. Further, because the MTDEQ's
implementation of the Montana PSD program does not cover all PSD-
subject modified major sources, MTDEQ's implementation of its PSD
program also fails to cover all regulated [New Source Review] NSR
pollutants including GHG pollutants for which the PSD permitting
requirements only apply to ``anyway sources,'' i.e., sources that
would otherwise be subject to PSD permitting for other pollutants.
MTDEQ is following policy interpretations that differ from its
EPA-approved PSD rule incorporated into the Montana SIP (which
tracks EPA's 1980 PSD regulations) and as a result, Montana's
implementation of the PSD program is less inclusive and less
stringent than the 1980 federal PSD rules because it fails to
include all physical or operational changes that would be major
modifications under the federal PSD requirements. Further, MTDEQ's
policy interpretations mean that its implementation of the PSD
program is less stringent than the 2002 NSR Reform Rules promulgated
by EPA on December 31, 2002 (67 Fed. Reg. 80186), as amended by EPA
on June 13, 2007 (72 Fed. Reg. 32526) for physical or operational
changes at existing major sources.
Although EPA has stated in the proposed approval of the Montana
infrastructure SIP approval that it ``does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies
in a state's existing SIP'' including existing provisions of the
state's PSD program that may be inconsistent with the current
federal PSD rules reflecting NSR Reform, EPA has no basis for
attempting to limit public comment and EPA review of this issue when
a state's policy interpretations of its PSD program result in a
program that is less inclusive and less stringent than the current
federal PSD program, and is therefore contrary to law.
* * * * *
EPA cannot assume that Montana's minor source permitting program
will ensure protection of these NAAQS for those modified sources
that, pursuant to MTDEQ's policy interpretations, do not trigger
applicability under the Montana PSD program as major modifications.
The Montana SIP includes an exemption from the requirement to obtain
a Montana Air Quality Permit for ``construction or changed
conditions of operation'' at a facility that does not increase the
facility's potential to emit by more than 5 tons per year. ARM
17.8.743(1), ARM 17.8.745 ``Exclusion for De Minimis Changes.'' This
rule allows a source to apply an emissions test comparing potential
to emit pre- and post-change, and if the increase in potential to
emit is less than 5 tons per year, no Montana Air Quality Permit is
required for the construction or changed operation. For those
modifications to existing major sources that do not trigger PSD
based on MTDEQ's policy interpretations allowing the source to use
an actual emissions to [an] estimated future actual emissions test,
it is likely that such a modified source could avoid the requirement
to obtain a Montana Air Quality permit under the potential-to[-
]potential comparison of the de minimis exemption in Montana's SIP.
Even if a modified major source could not initially be exempt under
the potential-to-potential test of the Montana de minimis rule, the
Montana rule also allows an existing source to revise the federally
enforceable emission limitations (thus reducing its potential to
emit) through an administrative process pursuant to ARM 17.8.764
(see ARM 17.8.745(1)(a)(5) and (2).
While the de minimis rule does not allow construction or changed
conditions that would affect the plume rise or dispersion
characteristics of emissions in a manner that would cause or
contribute to a NAAQS violation (see ARM 17.8.745(1)(a)(iii)), this
provision will not ensure protection of the NAAQS due to emissions
from the modified major sources that avoid PSD permitting due to
MTDEQ's policy interpretations. To determine if a modified source
will cause or contribute to a violation of the NAAQS, the de minimis
rule requires notification to MTDEQ if the physical or operational
change will change stack height, stack diameter, stack flow, stack
gas temperature, or source location, but it does not require ambient
air modeling. ARM 17.8.745(b). However, given that the majority of
existing sources have never been modeled for compliance with the
recent NAAQS for lead, ozone, 1-hour NO2, 1-hour
SO2, or PM2.5 NAAQS, it will be extremely
difficult for MTDEQ to determine that a change in stack parameters
or source location would cause or contribute to a violation of the
NAAQS. Further, it is not evident that MTDEQ always requires
submittal of such information to determine if construction or
changed operating conditions at an existing source would affect the
plume rise or dispersion characteristics of a modified source, given
that MTDEQ allows certain emission sources to be excluded from
notification requirements of the de minimis rule pursuant to ARM
17.8.745(c).
Response: The commenters' concerns are directed not to whether the
existing SIP for Montana meets the relevant structural requirements for
PSD programs, but rather to whether Montana is in fact faithfully
implementing the existing provisions of its EPA-approved SIP. As the
EPA has explained in other contexts, comments like these highlight an
important distinction between whether an infrastructure SIP submission
meets the applicable requirements of the CAA on its face (i.e., pertain
to the facial sufficiency of the state's SIP), and whether a state is
actually complying with the requirements of that SIP (i.e., pertain to
adequacy of the state's implementation of the SIP).\1\ These comments
implicate the question of the degree to which implementation concerns
are relevant in the context of acting on a state's infrastructure SIP.
In the context of an infrastructure SIP submission, the EPA interprets
the requirements of section 110(a)(1) and (2) to require the Agency to
focus on whether the state has a SIP that provides the requisite legal
framework for implementation, maintenance and enforcement of the NAAQS.
Generally speaking, the EPA's review of infrastructure SIP submissions
is limited to whether, pursuant to CAA section 110(a)(2), the
submission
[[Page 23182]]
facially meets the requirements of the statutory criteria outlined
therein, as applicable. In the case of section 110(a)(2)(C), for
example, the statute requires a state to have a SIP that ``include[s] a
program to provide for . . . regulation of the modification and
construction of any stationary sources . . . including a permit program
as required in parts C and D of this subchapter.'' Thus, the EPA
reviews a state's infrastructure SIP submission to assure that the
structural elements of the state's PSD permitting program meets current
CAA requirements for such programs, e.g., that it addresses GHG
emissions.
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\1\ See ``Approval and Disapproval and Promulgation of
Implementation Plans; Texas; Infrastructure and Interstate Transport
Requirements of the 1997 Ozone and the 1997 and 2006
PM2.5 NAAQS,'' 76 FR 81371 (Dec. 28, 2011).
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This is not to say that the EPA has no role in reviewing whether a
state is faithfully implementing its approved SIP, or otherwise
complying with the CAA and its implementing regulations. To the
contrary, there are multiple statutory tools that the EPA can use to
rectify problems with state implementation of its SIP, and the
existence of these tools is consistent with the EPA's interpretation of
section 110(a)(2) with respect to the Agency's role in reviewing
infrastructure SIP submissions. For example, the CAA provides the EPA
the authority to issue a SIP call, 42 U.S.C. 7410(k)(5); make a finding
of failure to implement, id. Sec. Sec. 7410(m), 7509(a)(4); and take
measures to address specific permits pursuant to the EPA's case-by-case
permitting oversight. See, e.g., Sec. 7661d(b). The appropriateness of
employing these authorities depends on the nature and extent of the
particular implementation problems at issue.
With respect to Montana's infrastructure SIP submission, the EPA
analyzed the submission itself, and evaluated the text of its
provisions for compliance with the relevant elements of section
110(a)(2). In the proposal, the EPA explicitly evaluated the State's
submission on a requirement-by-requirement basis and explained its
views on the adequacy of the State's SIP for purposes of meeting the
infrastructure SIP requirements.
The EPA appreciates and takes seriously the commenters' assertions
that Montana has adopted ``policy interpretations'' outside the context
of the SIP that may undermine the State's implementation of the SIP as
approved by the EPA. However, because this action involves a review of
the SIP itself, the EPA is not evaluating the merits of these
assertions concerning implementation of the SIP in the context of this
action. Instead, the EPA intends to evaluate the merits of these
assertions, separate from this action, at a future time. In the
meantime, the EPA is finalizing its proposed approval of the
infrastructure SIP submission that is currently before the Agency. If
the EPA later determines that there are indeed concerns with respect to
the implementation of the PSD program in Montana, the Agency intends to
take appropriate action to ensure those problems are rectified using
whatever statutory tools are appropriate to the implementation problem
identified.
With respect to the requirements related to PSD relevant to this
approval of the infrastructure SIP submission, the EPA has determined
that the State's SIP as previously approved, and as revised in this
action, meets the relevant structural requirements for purposes of PSD
in section 110(a)(2)(C), (D)(i)(II) element 3, and (J). Some examples
of these basic structural SIP requirements include having state law
authority to carry out the SIP, an overarching permitting program in
place, and a properly deployed monitoring network. As to the PSD
program in particular, these basic structural requirements include
those provisions necessary for the permitting program to address all
federally regulated pollutants and the proper sources. The EPA
considers action on the infrastructure SIP submissions required by
section 110(a)(1) and (2) to be an evaluation of a state's SIP to
assure that it meets the basic structural requirements for the new or
revised NAAQS, not a time to address all potential substantive defects
in existing SIP provisions, or alleged defects in implementation of the
SIP. [Therefore, EPA generally considers evaluations of a state's
implementation of its NSR program to be outside the scope of an
infrastructure SIP review, rather than an unambiguous requirement of
the EPA's action on an infrastructure SIP with regard to section
110(a)(2)(C).]
Comment 3: The Sierra Club and MEIC comment letter gives a history
of the Montana PSD program as well as a history of the corresponding
federal PSD program with respect to how it is determined whether a
physical or operational change at an existing major stationary source
is subject to PSD permitting requirements. The comment discusses
MTDEQ's policy interpretations recently set forth in a citizen suit
enforcement proceeding, stating that these interpretations ``make
Montana's implementation of the PSD program less stringent''. The
Sierra Club and MEIC Comment Letter states the following on pages 4 and
5:
The basic structure of Montana's PSD permitting rules has been
the same since the EPA's initial SIP approval of Montana's PSD
rules. Specifically, Montana's PSD rules define the applicability to
PSD for physical or operational changes at an existing source based
on the same regulatory language in EPA's PSD regulations as of 1980.
That is, to determine if a physical change or change in the method
of operation at an existing major source is subject to PSD as a
major modification, one evaluates changes in `actual emissions [.]
The comment evaluates the definition of ``actual emissions'' and how
Montana's SIP has defined this term over the years, and notes two
substantive revisions to the definition of ``actual emissions'' since
1980, stating on pages 6, 7, and 8:
The first revision was made in 1992, where EPA modified the
definition of ``actual emissions'' to allow electric utility steam
generating units (EGUs) to use the ``representative actual annual
emissions,'' and adopted associated definitions including of
``representative actual annual emissions'' and emissions reporting
provisions for EGUs. 57 Fed. Reg. 32314 at 32335-6 (July 21, 1992);
40 CFR 51.166(b)(21)(iv) and (v), (b)(30), and (b)(32). In addition,
although EPA did not adopt any regulatory revisions regarding the
actual emissions baseline before a physical or operational change,
EPA set forth a presumption that it considers any 2 year period in
the 5 years immediately preceding the physical or operational change
at an EGU to be representative of normal source operations for the
EGU. 57 Fed. Reg. 32325. The 1992 rulemaking is referred to as the
``WEPCO Rule'' because the rule changes came about as a result of
the 7th Circuit Court decision in Wisconsin Electric Power Co. v.
Reilly, 893 F.2d 901 (7th Cir. 1990) (``WEPCO Decision'').
A review of the current SIP-approved Montana rules show that
Montana did not revise its PSD regulations to incorporate any of the
regulatory changes of the 1992 WEPCO rulemaking.
In 2002, EPA again revised the definition of ``actual
emissions'' and adopted new terms and definitions of ``projected
actual emissions'' and ``baseline actual emissions'' along with
numerous other revisions to its PSD regulations. 67 Fed. Reg. 80186-
80289 (Dec 31, 2002, also known as ``NSR Reform'' Rule). EPA adopted
a two-step process for determining PSD applicability for physical or
operational changes. First, it must be determined if a project will
result in a significant emission increase of any regulated NSR
pollutant and, if so, then second, it must be determined if the
project will result in a significant net emissions increase of any
regulated NSR pollutant. 67 Fed. Reg. 80260; 40 CFR
51.166(a)(7)(iv)(a)-(f). EPA essentially allowed all sources (not
just EGUs as allowed in 1992) to use an actual-to-projected actual
emissions increase test to determine whether a physical or
operational change was a major modification, except in certain
circumstances such as when a new emissions unit is added. 67 Fed.
Reg. 80260-2; 40 CFR 51.166(a)(7)(iv)(a)-(f), (b)(40) and (b)(47).
In the NSR Reform rules, EPA adopted several new rules. EPA
adopted a new definition of ``baseline actual emissions'' which
codified the 2-in-5 year presumptive baseline that EPA announced in
the 1992
[[Page 23183]]
WEPCO rule for EGUs, and also promulgated a provision for non-EGUs
allowing them to look back ten years before a physical or
operational change in determining baseline emissions. 67 Fed. Reg.
80263-4; 40 CFR 51.166(b)(47). EPA also adopted a new definition of
``projected actual emissions'' which defines how modified sources
are to project actual emissions when such modifications are not
subject to the actual-to-potential to emit test pursuant to the
procedures identified in 40 CFR 51.166(a)(7)(iv)(a)-(f). 67 Fed.
Reg. 80262-3; 40 CFR 51.166(b)(40). In addition, EPA adopted
provisions for reporting to permitting authorities pre- and post-
project when there is a reasonable possibility that a project that
is not considered a major modification may result in a significant
emissions increase. 67 Fed. Reg. 80264; 40 CFR 51.166(r)(6) and
(r)(7). There were numerous other revisions to the federal
permitting rules adopted in the December 31, 2002 rulemaking, such
as requirements to establish PALs. Two other new provisions of the
2002 NSR Reform rule regarding pollutant control projects and clean
units were later eliminated from the PSD regulations, after being
vacated by the U.S. Court of Appeals for the D.C. Circuit in New
York v. EPA, 413 F. 3d 3 (D.C. Cir. 2005). 72 Fed. Reg. 32526-9
(June 13, 2007). A review of the EPA-approved SIP for Montana shows
that Montana did not adopt any of the 2002 New Source Review Reform
revisions as revisions to its PSD regulations.
Although EPA has made some revisions to its rules regarding
baseline emissions and how to project future emissions for physical
or operational changes at existing sources, it is clear that, since
1986, the Montana SIP has continued to have the same definition of
``actual emissions'' and the same applicability approach as applied
under EPA's 1980 PSD rules. On its face, Montana's PSD rules track
EPA's PSD rules as they existed in 1980, and Montana's rules do not
implement the 1992 or 2002 federal rule revisions. Given that the
1992 and 2002 federal rule revisions were intended to be less
inclusive than the 1980 PSD rule, allowing for more modifications to
not be considered as major modifications subject to PSD review,
would be less stringent than the current federal PSD rules.
Montana is implementing policy interpretations regarding the
definition of ``actual emissions,'' which pertain to both the
determination of actual emissions before a physical or operational
change and the determination of the future emissions expected after
a physical or operational change, which are less stringent than
EPA's interpretation of the same language of its 1980 PSD rules,
resulting in Montana's program as implemented being less stringent
than EPA's 1980 PSD requirements. In addition, those policy
interpretations of Montana's PSD program are less stringent than
EPA's current PSD requirements reflective of NSR Reform.''
Response: The commenter's assertion that Montana is, through policy
interpretations, implementing its PSD program in a less-stringent
manner than required by PSD rules is addressed in our response to
comment 2. We note that, while Montana's alleged ``policy
interpretations'' of its SIP are outside the scope of the EPA's review
in the context of an infrastructure SIP submission, we evaluated the
``structural'' requirements for a PSD program to fulfill the NAAQS
infrastructure requirements as required in 110(a)(2)(C), (D)(i)(II)
element 3, and (J). In the context of the specific applicability issues
raised by the commenter, we have determined that Montana's PSD program
provides for the implementation, maintenance, and enforcement of the
NAAQS requirements being approved in this rulemaking by applying the
EPA's 1980 PSD rules. In addition, EPA has evaluated the State's SIP
for compliance with other structural elements such as the Phase 2 Ozone
Implementation Rule, 2008 PM2.5 NSR, and 2010
PM2.5 Increments (a complete discussion can be found in
section VI. Program for enforcement of control measures of the proposed
rule).
While we agree with the history the commenter has provided with
regard to what Montana has and has not adopted into the State's EPA-
approved PSD program, we note that Montana was not required to adopt
any of the provisions of the 1992 WEPCO Rule. For example, the state of
Utah adopted WEPCO revisions, which we acted on in 69 FR 51368 (Aug.
19, 2004). In that rulemaking, we explained that states generally:
``were not required to adopt revisions to implement these changes,
although these changes are in effect in areas where the Federal PSD
permitting regulations apply. Utah has opted to revise its NSR program
to incorporate the changes to the EPA's NSR rules promulgated on July
21, 1992.''
We note that the commenter agrees with this premise. See, e.g.,
Sierra Club and MEIC Comment Letter at page 16 (stating that ``states
were not required to adopt that new rule language'' in reference to the
1992 WEPCO Rule). Because Montana was not required to adopt the 1992
WEPCO Rule, or to revise its SIP in response to that EPA action, the
EPA need not review the state's infrastructure SIP submission for
consistency with the requirements of the 1992 WEPCO Rule. In the
context of evaluating a state's infrastructure SIP submission with
respect to PSD permitting program requirements, the EPA evaluates only
whether the SIP meets structural requirements (e.g., having authority
to address GHG emissions in such permits). Thus, the State's decision
whether or not to revise its PSD permitting program to incorporate the
changes contemplated in the 1992 WEPCO Rule does not preclude the EPA
from approving Montana's infrastructure SIP in this action.
This is consistent with the EPA's September 13, 2013, ``Guidance on
Infrastructure State Implementation Plan (SIP) Elements Under Clean Air
Act Sections 110(a)(1) and 110(a)(2),'' \2\ (2013 Guidance, contained
within this docket), wherein we explain that: ``Structural PSD program
provisions include provisions necessary for the PSD program to address
all regulated sources and NSR pollutants, including GHG. Structural PSD
provisions do not include provisions which under 40 CFR 51.166 are at
the option of the air agency.''
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\2\ Memorandum from Stephen D. Page, Director, Office of Air
Quality Planning and Standards, Guidance on Infrastructure State
Implementation Plan (SIP) Elements Under the Clean Air Act Sections
110(a)(1) and 110(a)(2) (Sept. 13, 2013).
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In the EPA's 2013 Guidance and in several EPA rulemakings, the
Agency discussed the issue of addressing the 2002 NSR Reform Rule,
which followed the 1992 WEPCO Rule, within the context of
infrastructure SIPs. Specifically, the EPA explained in the 2013
Guidance that the issue of ``existing SIP provisions for PSD programs
that have not addressed the NSR Reform Rules may be dealt with
separately, outside of the context of acting on a state's
infrastructure SIP.'' \3\ The EPA explained its reasoning for this
approach to the NSR Reform Rules in a 2007 guidance document,\4\ which
we further explained in our July 13, 2011 rulemaking (76 FR 41078. See
page 41078, column three, first full paragraph through page 41079,
first column).
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\3\ 2013 Guidance at p. 28.
\4\ ``Guidance on SIP Elements Required Under Section 110(a)(1)
and (2) for the 1997 8-hour Ozone and PM2.5 National
Ambient Air Quality Standards,'' from William T. Harnett, Director
Air Quality Policy Division, to Air Division Directors, Regions I-X
(October 2, 2007).
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Comment 4 Sierra Club and MEIC Comment Letter
The comment asserts that Montana's ``policy interpretations'' of
the term ``actual emissions'' as set forth in amicus briefs and
appearances in a citizen suit PSD enforcement action against the
Colstrip Power Plant are inconsistent and less stringent than the EPA's
interpretation of the same language in the 1980 federal PSD regulations
and are less stringent than the current federal PSD regulations. The
comment also states that MTDEQ's interpretation of how to determine
baseline emissions is inconsistent with and less stringent than the
EPA's
[[Page 23184]]
historical and current PSD regulations. The comment states that the
MTDEQ never informed the public of its policy interpretations set forth
in the amicus briefs, and Montana does not have authority to implement
policy without going through rulemaking.
Response: In our response to comment 2, we discussed the difference
between the legal sufficiency and the structural requirements of a PSD
program within the context of evaluation of the infrastructure SIP
submission and the implementation of the EPA approved SIP. The
commenter's assertion that Montana's PSD regulations are less stringent
than the 1980 federal PSD regulations and the current federal PSD
regulations is based upon allegations concerning how Montana interprets
federal PSD regulations and the State's own ``policy interpretations.''
As mentioned in our response to comment 2, these implementation
concerns fall outside the scope of this action because the EPA is not
evaluating the issue of how the state implements its PSD program in
this context. In that same vein, the EPA does not consider this the
appropriate context in which to evaluate whether MT DEQ's
interpretations of PSD applicability tests, or how the State defines
``actual emissions'' or ``like-kind replacements,'' etc., and whether
these interpretations make Montana's PSD program less stringent than
the 1980 federal PSD regulations and the current federal PSD
regulations. As noted in our response above, the EPA has other
authorities to take appropriate action to address alleged SIP
implementation deficiencies.
III. Final Action
For reasons expressed in the proposed rule, the EPA is taking final
action to approve infrastructure elements from the State's
certifications as shown in Table 1. We are also conditionally approving
elements (C), D(i)(II) element 3 and (J) with respect to the
requirement to have a PSD program that meets the requirements of part C
of Title 1 of the Act as shown in Table 2. Elements we are taking no
action on are reflected in Table 4. The EPA is disapproving (D)(i)(II)
element 4 for the 2006 PM2.5, 2008 ozone, 2010
NO2, 2010 SO2, and 2012 PM2.5 NAAQS
(Table 3). Finalization of this disapproval does not require further
action from the State, and does not create a new FIP obligation for the
EPA. We are also approving revisions to the ARM from the August 21,
2012 submittal (Table 1) and conditionally approving a revision from
the March 24, 2015 submittal (Table 2) to bring Montana's PSD program
up to date with respect to current requirements for PM2.5.
If Montana does not submit a SIP revision to correct the language in
ARM 17.8.818(7)(a)(iii) within one year of this action, conditional
approvals will automatically revert to disapprovals for ARM
17.8.818(7)(a)(iii), and elements (C), D(i)(II) element 3 and (J) with
respect to PSD requirements. Finally, we are approving new ARM and
sections of the Montana Code Annotated submitted on December 17, 2015
to satisfy requirements of element (E)(ii), state boards.
A comprehensive summary of infrastructure elements, and revisions
and additions to the ARM organized by the EPA's final rule action are
provided in Table 1, Table 2, Table 3 and Table 4.
Table 1--List of Montana Infrastructure Elements and Revisions That the
EPA Is Approving
------------------------------------------------------------------------
Approval
-------------------------------------------------------------------------
February 10, 2010 submittal--1997 and 2006 PM2.5 NAAQS:
(D)(ii) for both the 1997 and 2006 PM2.5 NAAQS.
December 19, 2011 submittal--2008 Pb NAAQS:
(A), (B), (C) with respect to minor NSR requirements, (D)(i)(I)
elements 1 and 2, (D)(i)(II) element 4, (D)(ii), (E), (F), (G),
(H), (J) with respect to requirements of sections 121 and 127, (K),
(L) and (M).
January 3, 2013 submittal--2008 Ozone NAAQS:
(A), (B), (C) with respect to minor NSR requirements, (D)(ii), (E),
(F), (G), (H), (J) with respect to requirements of sections 121 and
127, (K), (L) and (M).
June 4, 2013 submittal--2010 NO2 NAAQS:
(A), (B), (C) with respect to minor NSR requirements, (D)(i)(I)
elements 1 and 2, (D)(ii), (F), (G), (H), (J) with respect to
requirements of sections 121 and 127, (K), (L) and (M).
July 15, 2013 submittal--2010 SO2 NAAQS:
(A), (B), (C) with respect to minor NSR requirements, (D)(ii), (F),
(G), (H), (J) with respect to requirements of sections 121 and 127,
(K), (L) and (M).
December 17, 2015 submittal--2012 PM2.5 NAAQS:
(A), (B), (C) with respect to minor NSR requirements, (D)(ii), (F),
(G), (H), (J) with respect to requirements of sections 121 and 127,
(K), (L) and (M).
August 21, 2012 submittal--Revisions to ARM, Prevention of Significant
Deterioration:
ARM 17.8.801(3), 17.8.801(21), 17.8.801(27), 17.8.804(1),
17.8.818(7)(a)(iv)-(xi), 17.8.822(9), 17.8.822(10), 17.8.822(11),
17.8.822(12) and 17.8.825(4).
December 17, 2015 submittal--New Rules to ARM, CAA Section 128
New Rule I (ARM 17.8.150), II (ARM 17.8.151), III (ARM 17.8.152),
and Montana Code Annotated 2-2-121(2)(e) and 2-2-121(8).
------------------------------------------------------------------------
Table 2--List of Montana Infrastructure Elements and Revisions That the
EPA Is Conditionally Approving
------------------------------------------------------------------------
Conditional approval
-------------------------------------------------------------------------
February 10, 2010 submittal--1997 and 2006 PM2.5 NAAQS:
(D)(i)(II) element 3 for the 2006 PM2.5 NAAQS.
December 19, 2011 submittal--2008 Pb NAAQS:
(C) and (J) with respect to PSD, and (D)(i)(II) element 3.
January 3, 2013 submittal--2008 Ozone NAAQS:
(C) and (J) with respect to PSD, and (D)(i)(II) element 3.
June 4, 2013 submittal--2010 NO2 NAAQS:
(C) and (J) with respect to PSD, and (D)(i)(II) element 3.
July 15, 2013 submittal--2010 SO2 NAAQS:
(C) and (J) with respect to PSD, and (D)(i)(II) element 3.
[[Page 23185]]
December 17, 2015 submittal--2012 PM2.5 NAAQS:
(C) and (J) with respect to PSD, and (D)(i)(II) element 3.
March 24, 2015 submittal--Revisions to ARM, Prevention of Significant
Deterioration:
ARM 17.8.818(7)(a)(iii).
------------------------------------------------------------------------
Table 3--List of Montana Infrastructure Elements That the EPA Is
Disapproving
------------------------------------------------------------------------
Disapproval
-------------------------------------------------------------------------
February 10, 2010 submittal--1997 and 2006 PM2.5 NAAQS:
(D)(i)(II) element 4 for the 2006 PM2.5 NAAQS.
January 3, 2013 submittal--2008 Ozone NAAQS:
(D)(i)(II) element 4.
June 4, 2013 submittal--2010 NO2 NAAQS:
(D)(i)(II) element 4.
July 15, 2013 submittal--2010 SO2 NAAQS:
(D)(i)(II) element 4.
December 17, 2015 submittal--2012 PM2.5 NAAQS:
(D)(i)(II) element 4.
------------------------------------------------------------------------
Table 4--List of Montana Infrastructure Elements and Revisions That the EPA Is Taking No Action On
----------------------------------------------------------------------------------------------------------------
No action
-----------------------------------------------------------------------------------------------------------------
Reason ``No Action''
-------------------------------------------------------
Revision
Revision deletes Revision
Revision to made in a section of superseded
Revised section be made in separate the ARM by revision
future rulemaking never in March 24,
rulemaking action (80 approved 2015 State
action FR 72937) into State's submittal
SIP
----------------------------------------------------------------------------------------------------------------
January 3, 2013 submittal--2008 Ozone NAAQS:
(D)(i)(I) elements 1 and 2.......................... ............ x ............ ............
July 15, 2013 submittal--2010 SO2 NAAQS:
(D)(i)(I) elements 1 and 2.......................... x ............ ............ ............
December 17, 2015 submittal--2012 PM2.5 NAAQS:
(D)(i)(I) elements 1 and 2.......................... x ............ ............ ............
August 21, 2012 submittal--Revisions to ARM, Prevention
of Significant Deterioration:
ARM 17.8.818(7)(a)(iii)............................. ............ ............ ............ x
ARM 17.8.820(2)..................................... ............ ............ ............ x
March 24, 2015 submittal--Revisions to ARM, Prevention
of Significant Deterioration:
ARM 17.8.820(2)..................................... ............ ............ x ............
----------------------------------------------------------------------------------------------------------------
IV. Incorporation by Reference
In this rule, the EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, the EPA is finalizing the incorporation by reference of the ARM
and Montana Code Annotated discussed in section III, Final Action of
this preamble. The EPA has made, and will continue to make, these
documents generally available electronically through
www.regulations.gov and/or in hard copy at the appropriate EPA office
(see the ADDRESSES section of this preamble for more information).
V. Statutory and Executive Orders Review
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, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
final action merely approves some state law as meeting federal
requirements; this final action does not impose additional requirements
beyond those imposed by state law. For that reason, this final action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, Oct. 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
[[Page 23186]]
Order 13132 (64 FR 43255, Aug. 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 the 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, Feb. 16, 1994).
The SIP is not approved to apply on any Indian reservation land or
in any other area where the EPA or an Indian tribe has demonstrated
that a tribe has jurisdiction. In those areas of Indian country, the
rule does not have tribal implications and will not impose substantial
direct costs on tribal governments or preempt tribal law as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by June 20, 2016. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See CAA section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Greenhouse
gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 30, 2016.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart BB--Montana
0
2. Section 52.1370 is amended by:
0
a. In paragraph (c) adding in numerical order, the table entries for
``17.8.150'', ``17.8.151'', and ``17.8.152''; and revising the table
entries for ``17.8.801'', ``17.8.804'', ``17.8.818'', ``17.8.822'', and
``17.8.825''; and
0
b. In paragraph (e), under ``(1) Statewide'' adding three entries at
the end of the table.
The revisions and additions read as follows:
Sec. 52.1370 Identification of plan.
* * * * *
(c) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
State EPA final rule
State citation Rule title effective date date Final rule citation Comments
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Statewide
--------------------------------------------------------------------------------------------------------------------------------------------------------
(i) Administrative Rules of Montana, Subchapter 01, General Provisions
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
17.8.150............................. Definitions.................. 10/30/2015 4/20/2016 [Insert Federal .........................
Register citation].
17.8.151............................. Board Action................. 10/30/2015 4/20/2016 [Insert Federal .........................
Register citation].
17.8.152............................. Reporting.................... 10/30/2015 4/20/2016 [Insert Federal .........................
Register citation].
--------------------------------------------------------------------------------------------------------------------------------------------------------
(vi) Administrative Rules of Montana, Subchapter 08, Prevention of Significant Deterioration of Air Quality
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
17.8.801............................. Definitions.................. 10/14/2011 4/20/2016 [Insert Federal .........................
Register citation].
17.8.804............................. Ambient Air Increments....... 10/14/2011 4/20/2016 [Insert Federal .........................
Register citation].
17.8.818............................. Review of Major Stationary 10/10/2014 4/20/2016. [Insert Federal .........................
Source and Major Register citation].
Modifications--Source
Applicability and Exemptions.
17.8.822............................. Air Quality Analysis......... 10/14/2011 4/20/2016 [Insert Federal .........................
Register citation].
17.8.825............................. Sources Impacting Federal 10/14/2011 4/20/2016 [Insert Federal .........................
Class I Areas--Additional Register citation].
Requirements.
[[Page 23187]]
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
(e) * * *
----------------------------------------------------------------------------------------------------------------
Notice of
Title/subject State final rule NFR citation
effective date date
----------------------------------------------------------------------------------------------------------------
(1) Statewide
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Infrastructure Requirements for the 2008 Lead, N/A 4/20/2016 [Insert Federal Register
2008 8-hour Ozone, 2010 NO2, 2010 SO2, and citation].
2012 PM2.5 National Ambient Air Quality
Standards.
Infrastructure Requirements, Interstate N/A 4/20/2016 [Insert Federal Register
Transport of Pollution 110(a)(2)(D)(ii) for citation].
the 1997 and 2006 PM2.5 NAAQS.
Montana Code Annotated 2-2-121(2)(e) and 2-2- N/A 4/20/2016 [Insert Federal Register
121(8). citation].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2016-08916 Filed 4-19-16; 8:45 am]
BILLING CODE 6560-50-P