[Federal Register Volume 59, Number 238 (Tuesday, December 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30512]


[[Page Unknown]]

[Federal Register: December 13, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[MT22-1-6399a, MT9-3-6561a, & MT13-2-6560a; FRL-5118-3]

 

Clean Air Act Approval and Promulgation of State Implementation 
Plan for Montana; Missoula; PM10 and CO Contingency Measures and 
Local Regulations; Disapproval of Missoula Variance Provision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA approves the State implementation plan (SIP) revisions 
submitted by the State of Montana with a letter dated March 2, 1994. 
This submittal addresses the Federal Clean Air Act requirement to 
submit contingency measures for both particulate matter with an 
aerodynamic diameter less than or equal to a nominal 10 micrometers 
(PM10) and for carbon monoxide (CO) for the areas in Missoula 
designated as nonattainment for the PM10 and CO National Ambient 
Air Quality Standards (NAAQS). Further, this submittal satisfies 
several commitments made by the State in a previous PM10 SIP 
submittal. Due to the completion of those commitments, EPA is approving 
the related rules of the Missoula City-County Air Pollution Control 
Program, as adopted by the Montana Board of Health and Environmental 
Sciences (MBHES) on June 28, 1991 and amended on March 20, 1992 and 
November 19, 1993, and submitted by the Governor in letters dated 
August 20, 1991, June 4, 1992, and March 2, 1994. These rules include 
regulations regarding inspections, emergency procedures, minor source 
construction permitting, open burning, and wood waste burners. EPA also 
approves minor revisions to the previously approved Missoula City-
County Air Pollution Control Program's Chapters VII and VIII, as 
included in the March 2, 1994 submittal. Further, EPA is declining to 
take action on Missoula's minor source operating permit regulations. 
Finally, EPA disapproves Missoula City-County Air Pollution Control 
Program's Chapter X, Variances, which was submitted on August 20, 1991.

DATES: This final rule is effective on February 13, 1995 unless notice 
is received by January 12, 1995 that someone wishes to submit adverse 
or critical comments. If the effective date is delayed, timely notice 
will be published in the Federal Register.

ADDRESSES: Copies of the State's submittal and other information are 
available for inspection during normal business hours at the following 
locations:

Air Programs Branch, Environmental Protection Agency, Region VIII, 
999 18th Street, suite 500, Denver, Colorado 80202-2405.
Montana Department of Health and Environmental Sciences, Air Quality 
Division, Cogswell Building, Helena, Montana 59620-0901.
The Air and Radiation Docket and Information Center, 401 M Street, 
SW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Amy Platt, 8ART-AP, Environmental 
Protection Agency, Region VIII, 999 18th Street, suite 500, Denver, 
Colorado, (303) 293-1769.

SUPPLEMENTARY INFORMATION:

I. Background

    The Missoula, Montana area was designated nonattainment for 
PM10 and classified as moderate under sections 107(d)(4)(B) and 
188(a) of the Clean Air Act, upon enactment of the Clean Air Act 
Amendments of 1990.1 See 56 FR 56694 (Nov. 6, 1991); 40 CFR 81.327 
(Missoula and vicinity). The air quality planning requirements for 
moderate PM10 nonattainment areas are set out in subparts 1 and 4 
of part D, title I of the Act.2 The EPA has issued a ``General 
Preamble'' describing EPA's preliminary views on how EPA intends to 
review SIPs and SIP revisions submitted under Title I of the Act, 
including those State submittals containing moderate PM10 
nonattainment area SIP requirements (see generally 57 FR 13498 (April 
16, 1992) and 57 FR 18070 (April 28, 1992)). Because EPA is describing 
its interpretations here only in broad terms, the reader should refer 
to the General Preamble for a more detailed discussion of the 
interpretations of title I advanced in this action and the supporting 
rationale.
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    \1\The 1990 Amendments to the Clean Air Act made significant 
changes to the Act. See Pub. L. No. 101-549, 104 Stat. 2399. 
References herein are to the Clean Air Act, as amended (``the 
Act''). The Clean Air Act is codified, as amended, in the U.S. Code 
at 42 U.S.C. Sections 7401, et seq.
    \2\Subpart 1 contains provisions applicable to nonattainment 
areas generally and Subpart 4 contains provisions specifically 
applicable to PM10 nonattainment areas. At times, Subpart 1 and 
Subpart 4 overlap or conflict. EPA has attempted to clarify the 
relationship among these provisions in the ``General Preamble'' and, 
as appropriate, in today's action and supporting information.
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    Those States containing initial moderate PM10 nonattainment 
areas such as Missoula were required to submit, among other things, 
several provisions by November 15, 1991. These provisions are described 
in EPA's final rulemaking on the Missoula moderate PM10 
nonattainment area SIP (59 FR 2537-2540, January 18, 1994). Such States 
were also required to submit contingency measures by November 15, 1993 
(see 57 FR 13543). These measures must become effective, without 
further action by the State or EPA, upon a determination by EPA that 
the area has failed to achieve reasonable further progress (RFP) or to 
attain the PM10 National Ambient Air Quality Standards (NAAQS) by 
the applicable statutory deadline. See section 172(c)(9) and 57 FR 
13510-13512 and 13543-13544.
    On November 15, 1990, the Missoula area was also designated 
nonattainment and classified as a moderate area for CO by operation of 
law. See section 107(d)(4)(B) of the Act; 56 FR 56694 at 56705-56706, 
56790 (November 6, 1991); 40 CFR 81.327 (Missoula and vicinity). Unlike 
PM10 nonattainment areas, moderate CO areas with a design value of 
less than or equal to 12.7 parts per million (including Missoula) are 
not required by the Act to submit a SIP demonstrating attainment of the 
NAAQS. Rather, these areas are required to submit certain SIP elements, 
including an oxygenated fuels program, an emissions inventory, and 
contingency measures. Section 172(c)(9) of the Act requires the State 
to submit contingency measures for implementation in the event that the 
area fails to reach attainment by the applicable attainment date 
(December 31, 1995). EPA has established November 15, 1993 as the 
deadline by which the contingency measures must be submitted to EPA as 
a SIP revision.

II. This Action

    Section 110(k) of the Act sets out provisions governing EPA's 
review of SIP submittals (see 57 FR 13565-13566). The Governor of 
Montana submitted revisions to the SIP for Missoula with a letter dated 
March 2, 1994. The revisions address contingency measures for PM10 
and CO, and they also amend several of the Missoula City-County Air 
Pollution Control Program regulations.
    EPA approved a large portion of the Missoula City-County Air 
Pollution Control Program on January 18, 1994 (59 FR 2537-2540). Some 
of the local regulation amendments, which are included in the March 2, 
1994 submittal, were made to satisfy commitments made by the Governor 
with the original PM10 SIP submittal. In the January 18, 1994 
rulemaking, EPA delayed action on the regulations related to the 
Governor's commitments.
    To address deficiencies identified by EPA, the State took 
commitments through the public hearing process on November 23, 1992, 
and submitted the commitments to EPA as additional tasks to be 
completed to correct the deficiencies in the Missoula and statewide SIP 
(a more detailed discussion of these commitments can be found in EPA's 
prior proposed rulemaking action on the Montana PM10 SIP revisions 
for Missoula (58 FR 48339, September 15, 1993), the Technical Support 
Document (TSD) for that action, Section II.E. below, and the TSD for 
this action).
    Due to the satisfaction of those commitments, EPA is now approving 
the following Missoula City-County Air Pollution Control Program 
regulations as adopted by the State of Montana on June 28, 1991 and 
submitted to EPA by Montana's Governor on August 20, 1991, with 
amendments adopted by the State on March 20, 1992 and November 19, 1993 
and submitted to EPA by the Governor on June 4, 1992 and March 2, 1994, 
respectively: Chapter IX--Subchapter 4, Emergency Procedures; 
Subchapter 13, Open Burning; and Subchapter 14, Rule 1407, Wood-Waste 
Burners.
    EPA is also approving the following minor revisions to two 
previously approved chapters of the Missoula City-County Air Pollution 
Control Program--revisions to Chapter VII, involving a name change for 
the advisory council, and revisions to Chapter VIII, regarding 
inspections. These revisions were also adopted by the State on November 
19, 1993 and were included in the March 2, 1994 submittal.

A. Analysis of State Submission

    The Act requires States to observe certain procedural requirements 
in developing implementation plans and plan revisions for submission to 
EPA. Section 110(a)(2) of the Act provides that each implementation 
plan submitted by a State must be adopted after reasonable notice and 
public hearing.3 Section 110(l) of the Act similarly provides that 
each revision to an implementation plan submitted by a State under the 
Act must be adopted by such State after reasonable notice and public 
hearing.
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    \3\Also section 172(c)(7) of the Act requires that plan 
provisions for nonattainment areas meet the applicable provisions of 
section 110(a)(2).
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    EPA also must determine whether a submittal is complete and 
therefore warrants further EPA review and action (see Section 110(k)(1) 
and 57 FR 13565). The EPA's completeness criteria for SIP submittals 
are set out at 40 CFR part 51, appendix V. The EPA attempts to make 
completeness determinations within 60 days of receiving a submission. 
However, a submittal is deemed complete by operation of law if a 
completeness determination is not made by EPA six months after receipt 
of the submission.
    To entertain public comment, the State of Montana, after providing 
adequate notice, held public hearings for the local air pollution 
control program on June 28, 1991 and March 2, 1992, and a hearing was 
held on November 19, 1993 to address the Missoula contingency measures 
and further revisions to the local air pollution control program 
regulations. Following the public hearings, the local air pollution 
control plan, revisions, and the Missoula contingency measures were 
adopted by the State.
    The local air pollution control program was submitted as a proposed 
revision to the SIP by the Governor with a letter dated August 20, 
1991. In a letter to the State dated December 4, 1991, EPA identified 
deficiencies with the local program. Some of these deficiencies were 
addressed in the Missoula PM10 SIP, which was submitted by the 
Governor to EPA in a letter dated June 4, 1992. Commitments to correct 
the remaining deficiencies were submitted by the Governor in a letter 
dated November 30, 1992. EPA described the commitments and approved the 
provisions of the local program that were not affected by these 
commitments on January 18, 1994 (59 FR 2537). A detailed description of 
the Missoula City-County regulations that are the subject of this 
action, the deficiencies that EPA identified in its December 4, 1991 
letter to the State, the State's commitments to address these 
deficiencies, and the current revisions is contained in the TSD for 
this action.
    The SIP revisions were reviewed by EPA to determine completeness in 
accordance with the completeness criteria set out at 40 CFR part 51, 
appendix V. The submittals were found to be complete and letters dated 
December 4, 1991, December 11, 1992, and May 12, 1994 were forwarded to 
the Governor indicating the completeness of the submittals and the next 
steps to be taken in the review process.

B. Contingency Measures

    The Clean Air Act requires State's containing PM10 
nonattainment areas to adopt contingency measures that will take effect 
without further action by the State or EPA upon a determination by EPA 
that an area failed to make reasonable further progress or to timely 
attain the applicable NAAQS, as described in section 172(c)(9). See 
generally 57 FR 13510-13512 and 13543-13544. Pursuant to section 
172(b), the Administrator has established a schedule providing that 
states containing initial moderate PM10 nonattainment areas shall 
submit SIP revisions containing contingency measures no later than 
November 15, 1993. (See 57 FR 13543, n. 3.)
    The General Preamble further explains that contingency measures for 
PM10 should consist of other available control measures, beyond 
those necessary to meet the core moderate area control requirement to 
implement reasonably available control measures (see Clean Air Act 
sections 172(c)(1) and 189(a)(1)(C)). Based on the statutory structure, 
EPA believes that contingency measures must, at a minimum, provide for 
continued progress toward the attainment goal during the interim period 
between the determination that the SIP has failed to achieve RFP/
provide for timely attainment of the NAAQS and the additional formal 
air quality planning following the determination (57 FR 13511).
    The Act similarly requires that states containing certain CO 
nonattainment areas to adopt contingency measures that will take effect 
without further action by the State or EPA upon a determination by EPA 
that an area failed to make reasonable further progress or to attain 
the standards, as described in section 172(c)(9). (``Not Classified'' 
areas, that is, areas that had a design value less than the 9.0 part 
per million CO NAAQS at the time of designation, are not required to 
submit contingency measures.) Pursuant to section 172(b), the 
Administrator has established a schedule providing that states 
containing areas not exempted from the contingency measure requirement 
shall submit SIP revisions containing contingency measures no later 
than November 15, 1993. EPA guidance (``Technical Support Document to 
Aid States with the Development of Carbon Monoxide State Implementation 
Plans,'' EPA-452/R-92-003, July 1992) recommends that implementation of 
the contingency measures provide vehicle miles travelled (VMT) 
reductions or emission reductions sufficient to counteract the effect 
of one year's growth in VMT. However, the Act does not specify how many 
contingency measures are needed or the magnitude of emissions 
reductions that must be provided by these measures. In the interim 
period (i.e., after an area fails to attain and while required 
additional measures are being adopted due to being reclassified to 
serious), EPA believes that contingency measures must provide for 
continued progress toward the attainment goal. This would be the 
minimum requirement and is consistent with the statutory scheme.
    Section 172(c)(9) of the Act specifies that contingency measures 
shall ``take effect * * * without further action by the State, or the 
[EPA] Administrator.'' EPA has interpreted this requirement (in the 
General Preamble at 57 FR 13512) to mean that no further rulemaking 
activities by the State or EPA would be needed to implement the 
contingency measures. In general, EPA expects all actions needed to 
affect full implementation of the measures to occur within 60 days 
after EPA notifies the State of its failure to attain the standard or 
make RFP.
    EPA recognizes that certain actions, such as notification of 
sources, modification of permits, etc., may be needed before some 
measures could be implemented. However, States must show that their 
contingency measures can be implemented with minimal further 
administrative action on their part and with no additional rulemaking 
action such as public hearing or legislative review.
    The PM10 and CO contingency measures for Missoula were 
developed by the Missoula City-County Health Department (MCCHD), with 
input from the Montana Department of Health and Environmental Sciences 
(MDHES). After a local public hearing on September 16, 1993, the 
Missoula City-County Air Pollution Control Board adopted the measures. 
At its November 19, 1993 MBHES public hearing, the Board adopted the 
contingency measures.
    The Governor submitted the contingency measures to EPA with a 
letter dated March 2, 1994. After reviewing the submittal for 
conformance with the completeness criteria in 40 CFR part 51, appendix 
V, EPA determined the submittal to be administratively and technically 
complete and notified the Governor of such determination in a letter 
dated May 12, 1994.
1. PM10 Contingency Measure
    Upon sixty days notification by EPA4 that Missoula has failed 
to attain the PM10 NAAQS or make RFP, MCCHD will select a 
contingency measure rule based on chemical or microscopic analysis of 
exposed PM10 filters to determine which source is the significant 
contributor to the PM10 violation. If, after analysis, the major 
contributing source is determined to be re-entrained road dust, the 
area of regulated road sanding materials will be expanded to include 
Section 1, T12N R20W; Sections 5 and 24, T13N R19W; and Sections 19, 
24, 25, 30, 31, and 36, T13N R20W (i.e., Rule 1401(7)(b) will be 
implemented). In general terms, the regulated sanding material usage 
area will be expanded to include East Missoula, Southwest Missoula near 
Buckhouse Bridge, West Missoula between the Clark Fork and Bitterroot 
Rivers, and Northwest Missoula in the Grant Creek area.
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    \4\The actual wording of Missoula's PM10 contingency 
measure regulation is ``[u]pon sixty (60) days notification by the 
Montana Department of Health and Environmental Sciences and U.S. EPA 
* * *.'' However, in a November 3, 1994 letter from Jeffrey T. 
Chaffee, MDHES, to Douglas M. Skie, EPA, the State indicated that 
the word ``and'' is not intended to imply that EPA cannot make an 
independent finding of Missoula's failure to attain the standard. 
Therefore, EPA is approving this regulation based on the expectation 
that all actions needed to affect full implementation of the 
contingency measure will occur within 60 days after EPA notifies the 
State of Missoula's failure to attain the PM10 standard or make 
RFP, i.e., the State need not provide notification as well.
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    If after analysis the major contributing source is determined to be 
residential wood burning, then the exemption for burning during an air 
pollution alert allowed for Class I permitted stoves and dealer 
demonstration permitted devices will not be allowed (i.e., Rule 
1428(5)(d) and (7)(b) will be implemented). Regardless of the results 
of the analysis, either Rule 1401(7)(b) or Rule 1428(5)(d) and (7)(b) 
will be implemented within sixty days of notification from EPA.
2. CO Contingency Measure
    Within sixty days of notification by EPA5 that the Missoula CO 
nonattainment area has failed to attain the CO NAAQS, the MCCHD will 
implement the contingency measure, Rule 1428(5)(d), immediately. This 
portion of the Missoula Solid Fuel Burning Devices regulations states 
that Rule 1428 (5)(a) and (7)(d) will be modified to delete Class I and 
Dealer Demonstrated permitted devices, and Rule 1428(5)(c) is void. In 
other words, if the area has failed to attain the CO NAAQS, then the 
exemption for burning during an air pollution alert for permitted Class 
I and dealer demonstrated woodburning devices will not be allowed.
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    \5\The actual wording of Missoula's CO contingency measure 
regulation is ``[w]ithin sixty (60) days of notification by the 
MDHES and the U.S. EPA * * *'' However, in a November 3, 1994 letter 
from Jeffrey T. Chaffee, MDHES, to Douglas M. Skie, EPA, the State 
indicated that the word ``and'' is not intended to imply that EPA 
cannot make an independent finding of Missoula's failure to attain 
the standard. Therefore, EPA is approving this regulation based on 
the expectation that all actions needed to effect full 
implementation of the contingency measure will occur within 60 days 
after EPA notifies the State of Missoula's failure to attain the CO 
standard, i.e., the State need not provide notification as well.
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C. Effectiveness of the Contingency Measures

1. Re-entrained Road Dust Contingency Measure for PM10
    If the re-entrained road dust contingency measure is implemented, 
the control efficiency of the re-entrained road dust measures will be 
76% in the 24-hour attainment demonstration (an increase of 14% over 
the control efficiency of the re-entrained road dust measures in the 
original SIP attainment demonstration). This calculation takes into 
account the expanded area for using washed sand, the existing areas for 
using washed sand and liquid de-icer, and the existing street sweeping 
measures (see the TSD for the Missoula PM10 SIP for further 
details on the existing re-entrained road dust strategies). Total 
reduction from the contingency measure is calculated to be 4073 pounds 
of PM10 per day.
2. Residential Woodburning Contingency Measure for PM10
    Since no credit was taken for the residential woodburning measures 
in the original SIP attainment demonstration, control efficiency from 
the residential woodburning contingency measure increases in the 24-
hour attainment demonstration. See the TSD for the Missoula PM10 
SIP for further details on the existing residential woodburning 
strategies (available at the EPA Region VIII address listed at the 
beginning of this notice). Total reduction from the contingency measure 
would be 12.6 pounds of PM10 per day.
    EPA believes this contingency measure is adequate for several 
reasons. First, the existing Missoula solid fuel burning device 
regulation (Rule 1428) is already a very stringent mandatory 
curtailment program. Any further emissions reductions through this 
program are very difficult to achieve. Second, the emissions inventory 
for the Missoula area indicates that re-entrained road dust contributes 
a somewhat higher portion of the PM10 emissions than residential 
woodburning. Therefore, the analysis necessary for the contingency 
measure selection process most likely will indicate that residential 
woodburning is not the major contributing source to Missoula's failure 
to attain the PM10 NAAQS or make RFP, and that the re-entrained 
road dust contingency measure should be implemented instead of the 
woodburning measure. Finally, the control measures implemented in the 
PM10 SIP achieve more emissions reductions than needed to 
demonstrate attainment of the PM1010 NAAQS, as indicated by the 
State's predicted 24-hour attainment concentration of 143.8 g/
m3 (see 58 FR 48341-48342, 59 FR 2538, and the related TSD). Since 
the 24-hour PM10 NAAQS is 150 g/m3, this established 
safety margin further supports the reasonableness of the contingency 
measure.
3. Residential Woodburning Contingency Measure for CO
    With the implementation of the residential woodburning contingency 
measure, Class I devices will not be allowed to burn during an alert. 
Assuming a conservative 60% compliance rate, 7,915 pounds of CO per day 
will be reduced. Since the estimated one-year growth of vehicle miles 
travelled (VMT) is 1%, and the CO emissions inventory report has 
determined that 140,786 pounds of CO per day are emitted from 
automobiles, approximately 1,409 pounds of CO per day are needed for a 
sufficient amount of reduction from the contingency measure. Therefore, 
emissions reductions are adequately met with the implementation of this 
contingency measure.

D. Early Implementation

    Subchapter 3, Contingency Measure Selection Process, of the 
Missoula City-County Air Pollution Control Program's Chapter IX--
Regulations, Standards, & Permits--sets out its early implementation 
policy as follows. For either the PM10 or CO contingency measures, 
early implementation of the measures will not result in the requirement 
to implement additional moderate area contingency measures if the area 
fails to attain the NAAQS or make reasonable further progress in 
reducing emissions. However, if Missoula is reclassified to a serious 
nonattainment area, additional planning requirements, including, but 
not limited to, serious area contingency measures, would be necessary. 
(See 59 FR 41998, August 16, 1994.)

E. PM10 SIP Commitments and Variance Provision

    In a letter dated August 20, 1991, the Governor of Montana 
submitted to EPA the Missoula City-County Air Pollution Control Program 
as a revision to the Montana SIP. EPA's review identified numerous 
deficiencies, including inconsistencies with the State regulations, as 
well as deficiencies similar to those EPA identified in the State 
regulations. In a December 4, 1991 letter from the EPA Region VIII 
Administrator to the Governor of Montana, the deficiencies in the 
Missoula regulations were outlined in detail (this letter is available 
for public inspection at the EPA Region VIII address listed at the 
beginning of this notice). The problem areas included rules involving 
emergency procedures, permitting, open burning, wood-waste burners, 
National standards of performance for new stationary sources (NSPS), 
National emission standards for hazardous air pollutants (NESHAPs), and 
variances.
    To address EPA's concerns, the State took commitments through the 
public hearing process on November 23, 1992 and submitted the 
commitments to EPA in a letter dated November 30, 1992, as additional 
tasks to be performed to correct the deficiencies in the Missoula and 
statewide SIP. Montana requested that EPA consider the August 20, 1991 
submittal concurrent with its June 4, 1992 PM10 SIP submittal and 
the conditions outlined in the State's commitments.
    Commitments related to the Missoula local regulations were as 
follows:

(A) Missoula shall add language in Chapter VIII of the Missoula 
regulations to include provisions for inspection of sources to 
ascertain compliance with the adopted emission control action for each 
emergency episode stage.
(B) Missoula shall review and revise the internal and external 
communication strategies contained in Missoula's emergency episode 
regulations (Subchapter 4) to ensure consistency with the state 
requirements (SIP Chapters 7 and 8).
(C) Missoula shall revise the Missoula permitting regulation to correct 
the deficiencies that EPA identified in James Scherer's December 4, 
1991 letter by:
    a. Replacing the terms ``new or altered source or stack'' and ``new 
or altered source'' with more definitive terms.
    b. Adding the terms ``demolition'' and ``modifications'' to the 
definition of construction.
    c. Eliminating the blanket exemption from permitting for emergency 
equipment installed at hospitals [Rule 1102(1)(h)].
    d. Eliminating the blanket exemption from permitting for equipment 
associated with the storage of agricultural products [1102(1)(f)].
    e. Replacing the term ``air pollution control capability'' 
contained in Rule 1103(1) with the term ``air pollution control 
equipment or techniques.''
    f. Changing the reference to the 1977 Federal Clean Air Act 
contained in Rule 1103 to the 1990 Federal Clean Air Act.
    g. Replacing the term ``expected production capacity'' contained in 
Rule 1105(1)(b)(ii) with the term ``maximum design production 
capacity.''
    h. Replacing the word ``or'' contained in Rule 1109, Sections (1), 
(2), and (3) with the word ``and.''
(D) If suggestions are made by Montana for Missoula to revise their 
open burning regulations in accordance with amendments to Montana open 
burning regulations to ensure that a state open burning permit to burn 
creosote railroad ties cannot be issued for any location in Missoula 
County, Missoula shall complete the necessary revisions.
(E) Missoula shall revise Rule 1407 to make it consistent with the 
proposed amendments to Montana Rule 16.8.1407 regarding wood waste 
burners.
(F) Missoula shall revise the Missoula NSPS and NESHAP regulations to 
incorporate all federal requirements promulgated through July 1, 1992.

    The revisions to the Missoula City-County Air Pollution Control 
Program regulations, which were submitted by the Governor with a letter 
dated March 2, 1994, fulfill four of the State's commitments (see A, B, 
C, and E above). However, EPA still has concerns with respect to the 
minor source operating permit regulations (see below).
    Additional information submitted to Doug Skie, EPA, from Jeff 
Chaffee, MDHES, in a letter dated June 9, 1994 fulfills one more 
commitment (see D above). In this letter, the State indicated that 
there is no need for Missoula to revise its open burning regulations. 
The State revised its open burning regulations to prohibit the burning 
of creosote railroad ties (revisions adopted by the Montana Board of 
Health and Environmental Sciences at its May 20, 1994 hearing), and the 
Missoula regulation already prohibits such burning. Therefore, the 
State does not believe that revisions to Missoula's open burning 
regulations are required at this time.
    Therefore, EPA is now approving the following portions of Chapter 
IX of the Missoula City-County Air Pollution Control Program, as 
submitted in a letter dated August 20, 1991, with revisions submitted 
in letters dated June 4, 1992 and March 2, 1994--Subchapters 4 and 13, 
and Subchapter 14, Rule 1407--addressing emergency procedures, open 
burning, and wood-waste burners, respectively. EPA is also approving 
all portions of Subchapter 11--Permit, Construction, and Operation of 
Air Contaminant Sources--except Rules 1102(3), 1105(2), and 1111(2). 
The portions of Subchapter 11 that EPA is approving relate to 
construction permits.
    Although EPA is approving Missoula's construction permit 
regulations of Subchapter 11 as part of the SIP, EPA's approval does 
not include Missoula's minor source operating permit regulations, which 
are found in Chapter IX: Subchapter 11, Rules 1102(3), 1105(2), and 
1111(2). EPA is declining to take action on these minor source 
operating permit regulations because they do not meet the criteria of 
the June 28, 1989 Federal Register notice, which are required in order 
for the minor source operating permits to be considered federally 
enforceable (see 54 FR 27282).
    Also included in the March 2, 1994 submittal are minor amendments 
to two previously approved chapters of the Missoula City-County Air 
Pollution Control Program. These revisions involve a name change for 
the air advisory council listed in Chapter VII, and amendments to 
Chapter VIII, to provide for emergency episode inspections of operating 
point sources, which are capable of emitting 25 tons or more per year 
of any regulated air pollutant, to ensure compliance with abatement 
plan requirements. EPA approves these revisions.
    EPA's concerns regarding Missoula City-County Air Pollution Control 
Program, Chapter X, Variances, as included with the August 20, 1991 
submittal, have not been addressed. In the December 4, 1991 letter to 
the Governor, EPA informed the State that section 110(i) of the Federal 
Clean Air Act, as amended, prohibits the suspension of any requirement 
of an applicable SIP from being taken with respect to a stationary 
source by a State or the Administrator of EPA, except by SIP revision 
under section 110(a) (and a few other exceptions). Neither the June 4, 
1992 submittal, nor the March 2, 1994 submittal, corrected this 
problem. Therefore, EPA must disapprove Missoula's Chapter X, 
Variances, at this time.
    One of the November 30, 1992 Governor's commitments regarding 
Missoula is still outstanding. That commitment addresses Missoula NSPS 
and NESHAP regulations (see (F), above). EPA will take separate action 
on those regulations, as appropriate.

F. Enforceability Issues

    All measures and other elements in the SIP must be enforceable by 
the State and EPA (see Sections 172(c)(6), 110(a)(2)(A) and 57 FR 
13556). The EPA criteria addressing the enforceability of SIPs and SIP 
revisions were stated in a September 23, 1987 memorandum (with 
attachments) from J. Craig Potter, Assistant Administrator for Air and 
Radiation, et al. (see 57 FR 13541). State implementation plan 
provisions also must contain a program to provide for enforcement of 
control measures and other elements in the SIP [see section 
110(a)(2)(C)].
    The specific measures contained in the Missoula contingency plan 
are addressed above in Section II.B. The Missoula air pollution control 
regulations, as included in the SIP, are legally enforceable by MCCHD. 
There are civil penalties, which increase with each violation, for 
noncompliance with the solid fuel burning device regulation. Violation 
of any other provision, regulation or rule enforced under the program 
results in a criminal offense punishable by a fine.
    The Missoula City-County Air Pollution Control Program regulations 
are also enforceable by the MDHES, if the MCCHD fails to administer the 
program. Since the program has been approved by the MBHES in accordance 
with Section 75-2-301 of the Montana Clean Air Act and effectuated by 
an MBHES order, and since the MDHES can enforce MBHES orders, the MDHES 
has independent enforcement powers. Enforcement provisions are found in 
the Clean Air Act of Montana, Sections 75-2-401-429, Montana Code 
Annotated.
    If a State relies on a local government for the implementation of 
any plan provision, then, according to Section 110(a)(2)(E)(iii) of the 
Act, the State must provide necessary assurances that the State has 
responsibility for ensuring adequate implementation of such plan 
provision. A State would have responsibility to ensure adequate 
implementation if, for example, the State has the authority and 
resources to implement the provision when the local entity has failed 
to do so.
    The Missoula City-County Air Pollution Control Program was 
established in accordance with the requirements of Section 75-2-301 of 
the Montana Clean Air Act, as amended (1991). A revised version of the 
air pollution control regulations was approved by the Missoula City-
County Air Pollution Control Board on April 24, 1991, and on June 28, 
1991 the MBHES issued a board order approving these regulations. A 
stipulation between the MDHES and the Missoula City-County Air 
Pollution Control Board that delineates responsibilities and 
authorities between the MDHES and the local authorities was signed 
April 29, 1991. On March 20, 1992, the MBHES issued a board order 
approving revisions to the Missoula City-County Air Pollution Control 
Program. The April 29, 1991 stipulation, the June 28, 1991 Board order, 
and the March 20, 1992 Board order were incorporated into the SIP on 
January 18, 1994 (59 FR 2540).
    On November 19, 1993, the MBHES issued a Board order approving the 
Missoula PM10 and CO contingency measures and revisions to the 
Missoula City-County regulations. These regulations and the November 
19, 1993 Board order were submitted to EPA as a modification to the 
Montana SIP.
    The Missoula City-County rules are in effect now. The State of 
Montana has a program that will ensure that the contingency measures 
contained in the Missoula SIP are adequately enforced. EPA believes 
that the State's and Missoula's existing air enforcement program will 
be adequate. The TSD for this action contains further information on 
enforceability requirements, responsibilities, and a discussion of the 
personnel and funding intended to support effective implementation of 
the control measures.

III. Final Action

    EPA is approving Montana's SIP revisions, submitted by the Governor 
with a letter dated March 2, 1994, for the Missoula, Montana 
nonattainment area. This submittal addressed PM10 and CO 
contingency measure plans that were due on November 15, 1993. These 
plans involve the incorporation of a new Subchapter 3 (Contingency 
Measure Selection Process) in Chapter IX of the Missoula City-County 
Air Pollution Control Program and revisions to Chapter IX, Subchapter 
14, Rule 1401 (regarding the contingency measure to expand the area of 
regulated road sanding materials) and Rule 1428 (regarding the 
contingency measure to void certain solid fuel burning device permits).
    The March 2, 1994 submittal also revised several Missoula City-
County Air Pollution Control Program regulations, as committed to be 
completed by the Governor of Montana to EPA in a letter dated November 
30, 1992. Due to the satisfaction of those commitments, EPA can now 
approve the following portions of Chapter IX of the Missoula City-
County Air Pollution Control Program, as submitted on August 20, 1991, 
with revisions submitted June 4, 1992, and March 2, 1994: (1) 
Subchapter 4, Emergency Procedures; (2) all portions of Subchapter 11, 
Permit, Construction, and Operation of Contaminant Sources--except 
Rules 1102(3), 1105(2), and 1111(2) (the portions of Subchapter 11 that 
EPA is approving relate to construction permits); (3) Subchapter 13, 
Open Burning; and (4) Subchapter 14, Rule 1407, Wood-Waste Burners.
    Although EPA is approving Missoula's construction permit 
regulations of Subchapter 11 as part of the SIP, EPA's approval does 
not include Missoula's minor source operating permit regulations. EPA 
is declining to take action on Missoula's minor source operating permit 
regulations, which are found in Chapter IX: Subchapter 11, Rules 
1102(3), 1105(2), and 1111(2), because they do not meet the criteria of 
the June 28, 1989 Federal Register document. These criteria must be met 
in order for the minor source operating permits to be considered 
federally enforceable (see 54 FR 27282).
    EPA also approves minor revisions to previously approved Missoula 
City-County Air Pollution Control Program Chapter VII and Chapter VIII, 
as included in the March 2, 1994 submittal.
    Finally, EPA is disapproving Missoula City-County Air Pollution 
Control Program, Chapter X, Variances, as adopted by the MBHES on June 
28, 1991, and submitted by the Governor of Montana in a letter dated 
August 20, 1991. This chapter is not consistent with section 110(i) of 
the Clean Air Act, which prohibits any State or EPA from granting a 
variance from any requirement of an applicable implementation plan with 
respect to a stationary source.
    EPA is publishing this action without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in a separate document in this Federal 
Register publication, EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed. Under the procedures 
established in the May 10, 1994 Federal Register (59 FR 24054), this 
action will be effective February 13, 1995 unless, by January 12, 1995, 
adverse or critical comments are received.
    If such comments are received, this action will be withdrawn before 
the effective date by publishing a subsequent final rule based on this 
action serving as a proposed rule. EPA will not institute a second 
comment period on this action. Any parties interested in commenting on 
this action should do so at this time. If no such comments are 
received, the public is advised that this action will be effective on 
February 13, 1995.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to a SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
enterprises, and government entities with jurisdiction over populations 
of less than 50,000.
    Approvals of SIP submittals under section 110 and subchapter I, 
part D of the Clean Air Act do not create any new requirements, but 
simply approve requirements that the State is already imposing. 
Therefore, because the Federal SIP-approval does not impose any new 
requirements, I certify that it does not have a significant impact on 
small entities affected. Moreover, due to the nature of the Federal-
state relationship under the Clean Air Act, preparation of a regulatory 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The Clean Air Act forbids EPA to base 
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. 
E.P.A., 427 U.S. 246, 256-66 (1976); 42 U.S.C. 7410(a)(2).
    EPA's disapproval--of the portion of the submittal containing 
Missoula's variance rule--under section 110 and subchapter I, part D of 
the Clean Air Act does not affect any existing requirements applicable 
to small entities. Any pre-existing Federal requirements remain in 
place after this disapproval. Federal disapproval of the state 
submittal does not affect its state-enforceability. Moreover, EPA's 
disapproval of the submittal does not impose any new Federal 
requirements. Therefore, EPA certifies that this disapproval action 
does not have a significant impact on a substantial number of small 
entities because it does not remove existing requirements nor does it 
impose any new Federal requirements.
    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 February 13, 1995. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review must be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements (see section 307(b)(2)).
    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Nitrogen dioxide, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur dioxide, Volatile organic compounds.

    Dated: November 29, 1994.
William P. Yellowtail,
Regional Administrator.

    Chapter I, title 40 of the Code of Federal Regulations is amended 
as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart BB--Montana

    2. Section 52.1370 is amended by adding paragraph (c)(35) to read 
as follows:


Sec. 52.1370  Identification of plan.

* * * * *
    (c) * * *
    (35) The Governor of Montana submitted PM10 and CO contingency 
measures for Missoula, Montana in a letter dated March 2, 1994. The 
Governor of Montana also submitted the Missoula City-County Air 
Pollution Control Program in a letter dated August 20, 1991, with 
amendments submitted in letters dated June 4, 1992 and March 2, 1994. 
The March 2, 1994 submittal satisfies several commitments made by the 
State in its original PM10 moderate nonattainment area SIP.
    (i) Incorporation by reference.
    (A) Board order issued on November 19, 1993 by the Montana Board of 
Health and Environmental Sciences approving the amendments to Missoula 
City-County Air Pollution Control Program Chapter VII, VIII, and IX, 
regarding, among other things, the PM10 and CO contingency 
measures, inspections, emergency procedures, permitting, and wood-waste 
burners.
    (B) Missoula City-County Chapter IX, Subchapter 3, effective 
November 19, 1993, which addresses the PM10 and CO contingency 
measure selection process.
    (C) Missoula  City-County  Rule 1401(7), effective November 19, 
1993, which addresses PM10 contingency measure requirements for an 
expanded area of regulated road sanding materials.
    (D) Missoula City-County Rule 1428(5) and 1428(7), effective 
November 19, 1993, which addresses PM10 and CO contingency measure 
requirements for solid fuel burning devices.
    (E) Missoula City-County Air Pollution Control Program Chapter IX, 
Subchapter 13, Open Burning, effective June 28, 1991.
    (F) Other Missoula City-County Air Pollution Control Program 
regulations effective June 28, 1991, with amendments effective on March 
20, 1992 and November 19, 1993, as follows: all portions of Chapter IX, 
Subchapter 11, Permit, Construction and Operation of Air Contaminant 
Sources, except, Rules 1102(3), 1105(2), and 1111(2).
    (G) Other Missoula City-County Air Pollution Control Program 
regulations effective June 28, 1991, with amendments effective on 
November 19, 1993, as follows: Chapter IX, Subchapter 4, Emergency 
Procedures and Chapter IX, Subchapter 14, Rule 1407, Prevention, 
Abatement and Control of Air Pollution from Wood-Waste Burners.
    (H) Minor revisions to Missoula City-County Air Pollution Control 
Program Chapter VII, Air Quality Advisory Council, and Chapter VIII, 
Inspections, effective on November 19, 1993, as follows: Chapter VII(1) 
and Chapter VIII(4).
    3. Section 52.1390 is added to read as follows:


Sec. 52.1390  Missoula Variance Provision.

    The Missoula City-County Air Pollution Control Program's Chapter X, 
Variances, which was adopted by the Montana Board of Health and 
Environmental Sciences on June 28, 1991 and submitted by the Governor 
of Montana to EPA in a letter dated August 20, 1991, is disapproved. 
This rule is inconsistent with section 110(i) of the Clean Air Act, 
which prohibits any State or EPA from granting a variance from any 
requirement of an applicable implementation plan with respect to a 
stationary source.

[FR Doc. 94-30512 Filed 12-12-94; 8:45 am]
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