[Federal Register Volume 81, Number 16 (Tuesday, January 26, 2016)]
[Proposed Rules]
[Pages 4225-4239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01403]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2013-0556, FRL-9941-54-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 (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve elements of State Implementation Plan (SIP) revisions from the
State of Montana to demonstrate the State meets infrastructure
requirements of the Clean Air Act (Act or 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. EPA is
also proposing to approve 110(a)(2)(D)(ii) for the 1997 and 2006
PM2.5 NAAQS. EPA is proposing to conditionally approve CAA
section 110(a)(2)(C) and (J) with regard to 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. EPA is
proposing to disapprove 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. EPA is proposing to approve SIP
revisions the State submitted to update Montana's PSD program and
provisions regarding state boards. Section 110(a) of the CAA requires
that each state submit a SIP for the implementation, maintenance, and
enforcement of each NAAQS promulgated by EPA.
DATES: Written comments must be received on or before February 25,
2016.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2013-0556 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e. on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
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. General Information
What should I consider as I prepare my comments for EPA?
1. Submitting Confidential Business Information (CBI). Do not
submit CBI to EPA through http://www.regulations.gov or email. Clearly
mark the part or all of the information that you claim to be CBI. For
CBI information on a disk or CD ROM that you mail to EPA, mark the
outside of the disk or CD ROM as CBI and then identify electronically
within the disk or CD ROM the specific information that is claimed as
CBI. In addition to one complete version of the comment that includes
information claimed as CBI, a copy of the comment that does not contain
the information claimed as CBI must be submitted for inclusion in the
public docket. Information so marked will not be disclosed except in
accordance with procedures set forth in 40 CFR part 2.
2. Tips for preparing your comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register volume,
date, and page number);
Follow directions and organize your comments;
Explain why you agree or disagree;
Suggest alternatives and substitute language for your
requested changes;
Describe any assumptions and provide any technical
information and/or data that you used;
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced;
Provide specific examples to illustrate your concerns, and
suggest alternatives;
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats; and,
Make sure to submit your comments by the comment period
deadline identified.
II. Background
On March 12, 2008, EPA promulgated a new NAAQS for ozone, revising
the levels of the primary and secondary 8-hour ozone standards from
0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436, March 27,
2008). Subsequently, on October 15, 2008, EPA revised the level of the
primary and secondary Pb NAAQS from 1.5 micrograms per cubic meter
([mu]g/m\3\) to 0.15 [mu]g/m\3\ (73 FR 66964, Nov. 12, 2008). On
January 22, 2010, EPA promulgated a new 1-hour primary NAAQS for
NO2 at a level of 100 parts per billion (ppb) while
[[Page 4226]]
retaining the annual standard of 53 ppb. The 2010 NO2 NAAQS
is expressed as the three-year average of the 98th percentile of the
annual distribution of daily maximum 1-hour average concentrations. The
secondary NO2 NAAQS remains unchanged at 53 ppb (75 FR 6474,
Feb. 9, 2010). On June 2, 2010, the EPA promulgated a revised primary
SO2 standard at 75 ppb, based on a three-year average of the
annual 99th percentile of one-hour daily maximum concentrations (75 FR
35520, June 22, 2010). Finally, on December 14, 2012, the EPA
promulgated a revised annual PM2.5 standard by lowering the
level to 12.0 [mu]g/m\3\ and retaining the 24-hour PM2.5
standard at a level of 35 [mu]g/m\3\ (78 FR 3086, Jan. 15, 2013).
EPA promulgated a revised NAAQS for PM2.5 on October 17,
2006, tightening the level of the 24-hour standard to 35 [micro]g/m\3\
and retaining the level of the annual PM2.5 standard at 15
[micro]g/m\3\. EPA approved the CAA section 110(a)(2)(D)(i)(I) portion
of Montana's infrastructure SIP for this NAAQS on July 30, 2013 (78 FR
45869). As discussed below, CAA section 110(a)(2)(D)(i)(I) covers
elements 1 and 2 of ``interstate transport.'' In this proposed action,
EPA is addressing only interstate transport elements 3 and 4 from CAA
section 110(a)(2)(D)(i)(II) for the 2006 PM2.5, 2008 ozone,
2010 SO2 and 2012 PM2.5 NAAQS. We are not
addressing elements 1 and 2 for the 2008 ozone, 2010 SO2 and
2012 PM2.5 NAAQS in this action. These elements will be
addressed in a later rulemaking action.\1\
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\1\ EPA proposed approval of elements 1 and 2 of Montana's SIP
for the 2008 ozone NAAQS in a notice published November 23, 2015 (80
FR 72937).
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Under sections 110(a)(1) and (2) of the CAA, states are required to
submit infrastructure SIPs to ensure their SIPs provide for
implementation, maintenance and enforcement of the
NAAQS. These submissions must contain any revisions needed for
meeting the applicable SIP requirements of section 110(a)(2), or
certifications that their existing SIPs for PM2.5, ozone,
Pb, NO2, and SO2 already meet those requirements.
EPA highlighted this statutory requirement in an October 2, 2007,
guidance document entitled ``Guidance on SIP Elements Required Under
Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and
PM2.5 National Ambient Air Quality Standards'' (2007 Memo).
On September 25, 2009, EPA issued an additional guidance document
pertaining to the 2006 PM2.5 NAAQS entitled ``Guidance on
SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) National Ambient Air Quality
Standards (NAAQS)'' (2009 Memo), followed by the October 14, 2011,
``Guidance on Infrastructure SIP Elements Required Under Sections
110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality
Standards (NAAQS)'' (2011 Memo). Most recently, EPA issued ``Guidance
on Infrastructure State Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and (2)'' on September 13, 2013 (2013 Memo).
III. What is the Scope of this Rulemaking?
EPA is acting upon the SIP submissions from Montana that address
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2)
for the 2008 ozone, 2008 Pb, 2010 NO2, 2010 SO2,
and 2012 PM2.5 NAAQS. The requirement for states to make a
SIP submission of this type arises out of CAA section 110(a)(1).
Pursuant to section 110(a)(1), states must make SIP submissions
``within three years (or such shorter period as the Administrator may
prescribe) after the promulgation of a national primary ambient air
quality standard (or any revision thereof),'' and these SIP submissions
are to provide for the ``implementation, maintenance, and enforcement''
of such NAAQS. The statute directly imposes on states the duty to make
these SIP submissions, and the requirement to make the submissions is
not conditioned upon EPA taking any action other than promulgating a
new or revised NAAQS. Section 110(a)(2) includes a list of specific
elements that ``[e]ach such plan'' submission must address.
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of CAA sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to
distinguish this particular type of SIP submission from submissions
that are intended to satisfy other SIP requirements under the CAA, such
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to
address the nonattainment planning requirements of part D of title I of
the CAA; ``regional haze SIP'' submissions required by EPA rule to
address the visibility protection requirements of CAA section 169A; and
nonattainment new source review (NSR) permit program submissions to
address the permit requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\2\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section 110(a)(2) contains ambiguities
concerning what is required for inclusion in an infrastructure SIP
submission.
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\2\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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Examples of some of these ambiguities and the context in which EPA
interprets the ambiguous portions of section 110(a)(1) and 110(a)(2)
are discussed at length in our notice of proposed rulemaking:
Promulgation of State Implementation Plan Revisions; Infrastructure
Requirements for the 1997 and 2006 PM2.5, 2008 Lead, 2008
Ozone, and 2010 NO2 National Ambient Air Quality Standards;
South Dakota (79 FR 71040 Dec. 1, 2014) under ``III. What is the Scope
of this Rulemaking?''
With respect to certain other issues, EPA 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. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction (SSM) that may be contrary to the CAA and
EPA's policies addressing such excess emissions; (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii) existing
provisions for Prevention of Significant Deterioration (PSD) programs
that may be inconsistent with current requirements of EPA's ``Final NSR
Improvement Rule,'' 67 FR 80186,
[[Page 4227]]
Dec. 31, 2002, as amended by 72 FR 32526, June 13, 2007 (``NSR
Reform'').
IV. What infrastructure elements are required under sections 110(a)(1)
and (2)?
CAA section 110(a)(1) provides the procedural and timing
requirements for SIP submissions after a new or revised NAAQS is
promulgated. Section 110(a)(2) lists specific elements the SIP must
contain or satisfy. These infrastructure elements include requirements
such as modeling, monitoring, and emissions inventories, which are
designed to assure attainment and maintenance of the NAAQS. The
elements that are the subject of this action are listed below.
110(a)(2)(A): Emission limits and other control measures.
110(a)(2)(B): Ambient air quality monitoring/data system.
110(a)(2)(C): Program for enforcement of control measures.
110(a)(2)(D): Interstate transport.
110(a)(2)(E): Adequate resources and authority, conflict
of interest, and oversight of local governments and regional agencies.
110(a)(2)(F): Stationary source monitoring and reporting.
110(a)(2)(G): Emergency powers.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(J): Consultation with government officials;
public notification; and PSD and visibility protection.
110(a)(2)(K): Air quality modeling/data.
110(a)(2)(L): Permitting fees.
110(a)(2)(M): Consultation/participation by affected local
entities.
A detailed discussion of each of these elements is contained in the
next section.
Two elements identified in section 110(a)(2) are not governed by
the three year submission deadline of section 110(a)(1) and are
therefore not addressed in this action. These elements relate to part D
of Title I of the CAA, and submissions to satisfy them are not due
within three years after promulgation of a new or revised NAAQS, but
rather are due at the same time nonattainment area plan requirements
are due under section 172. The two elements are: (1) Section
110(a)(2)(C) to the extent it refers to permit programs (known as
``nonattainment NSR'') required under part D, and (2) section
110(a)(2)(I), pertaining to the nonattainment planning requirements of
part D. As a result, this action does not address infrastructure
elements related to the nonattainment NSR portion of section
110(a)(2)(C) or related to 110(a)(2)(I). Furthermore, EPA interprets
the CAA section 110(a)(2)(J) provision on visibility as not being
triggered by a new NAAQS because the visibility requirements in part C,
title 1 of the CAA are not changed by a new NAAQS.
V. How did Montana address the infrastructure elements of sections
110(a)(1) and (2)?
The Montana Department of Environmental Quality (Department or
MDEQ) submitted certification of Montana's infrastructure SIP for the
2008 Pb NAAQS on December 19, 2011, 2008 ozone NAAQS on January 3,
2013, 2010 NO2 NAAQS on June 4, 2013, 2010 SO2
NAAQS on July 15, 2013, and 2012 PM2.5 on December 17, 2015.
Montana's infrastructure certifications demonstrate how the State,
where applicable, has plans in place that meet the requirements of
section 110 for the 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2 and 2012 PM2.5 NAAQS. These plans reference
the current Administrative Rules of Montana (ARM) and Montana Code
Annotated (MCA). These submittals are available within the electronic
docket for today's proposed action at www.regulations.gov. The ARM and
MCA referenced in the submittals are publicly available at http://www.mtrules.org/ and http://leg.mt.gov/bills/mca_toc/index.htm.
Montana's SIP, air pollution control regulations, and statutes that
have been previously approved by EPA and incorporated into the Montana
SIP can be found at 40 CFR 52.1370.
VI. Analysis of the State Submittals
1. Emission limits and other control measures: Section 110(a)(2)(A)
requires SIPs to include enforceable emission limitations and other
control measures, means, or techniques (including economic incentives
such as fees, marketable permits, and auctions of emissions rights), as
well as schedules and timetables for compliance as may be necessary or
appropriate to meet the applicable requirements of this Act.
Specific control measures adopted in Board of Environmental Review
(BER) orders and multiple SIP-approved state air quality regulations
within the ARM and cited in Montana's certifications provide
enforceable emission limitations and other control measures, means of
techniques, schedules for compliance, and other related matters
necessary to meet the requirements of the CAA section 110(a)(2)(A) for
the 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2 and 2012 PM2.5 NAAQS, subject to the
following clarifications.
First, this infrastructure element does not require the submittal
of regulations or emission limitations developed specifically for
attaining the 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2 and 2012 PM2.5 NAAQS. Montana's
certifications (contained within this docket) generally list provisions
and enforceable control measures within its SIP which regulate
pollutants through various programs, including its stationary source
permit program which requires sources to demonstrate emissions will not
cause or contribute to a violation of any NAAQS (ARM 17.8.749). This
suffices, in the case of Montana, to meet the requirements of section
110(a)(2)(A) for the 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2 and 2012 PM2.5 NAAQS.
Second, as previously discussed, EPA is not proposing to approve or
disapprove any existing state rules with regard to director's
discretion or variance provisions. A number of states, including
Montana, have such provisions which are contrary to the CAA and
existing EPA guidance (52 FR 45109, Nov. 24, 1987), and the agency
plans to take action in the future to address such state regulations.
In the meantime, EPA encourages any state having a director's
discretion or variance provision which is contrary to the CAA and EPA
guidance to take steps to correct the deficiency as soon as possible.
Finally, in this action, EPA is also not proposing to approve or
disapprove any existing state provision with regard to excess emissions
during SSM of operations at a facility. A number of states, including
Montana, have SSM provisions which are contrary to the CAA and existing
EPA guidance \3\ and the agency is addressing such state regulations
separately (80 FR 33840, June 12, 2015).
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\3\ Steven Herman, Assistant Administrator for Enforcement and
Compliance Assurance, and Robert Perciasepe, Assistant Administrator
for Air and Radiation, Memorandum to EPA Air Division Directors,
``State Implementation Plans (SIPs): Policy Regarding Emissions
During Malfunctions, Startup, and Shutdown.'' (September 20, 1999).
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Therefore, EPA is proposing to approve Montana's infrastructure SIP
for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2
and 2012 PM2.5 NAAQS with respect to the general requirement
in section 110(a)(2)(A) to include enforceable emission limitations and
other control measures, means, or techniques to meet the applicable
requirements of this element.
2. Ambient air quality monitoring/data system: Section 110(a)(2)(B)
requires SIPs to provide for establishment and operation of appropriate
devices, methods, systems, and procedures necessary to ``(i) monitor,
compile, and analyze data on
[[Page 4228]]
ambient air quality, and (ii) upon request, make such data available to
the Administrator.''
On an annual basis, the Department evaluates trends in industrial
and economic development, meteorology, and population growth, and
conducts other scientific, social, and geographic observations
regarding areas of the State which may be adversely affected by the
impact of criteria pollutants. The Department, with participation and
input from local county air pollution control program staff and other
interested persons, develops decisions regarding monitor type,
location, and schedules for monitoring air quality in these hotspots.
Montana's annual monitoring network plan (AMNP), is made available by
the Department for public review and comment prior to submission to
EPA. EPA approved 2015 network changes through an AMNP response letter
(contained within the docket) mailed to the Department on November 25,
2015.
Further, in accordance with 40 CFR 58.10, beginning in July 2008,
and every five years thereafter, Montana develops a periodic network
assessment to ensure the effective implementation of an adequate
ambient air quality surveillance system. The periodic network
assessment is made available by the Department for public review and
comment prior to submission to EPA.
Pursuant to its Quality Assurance Project Plans, the Department
makes arrangements to operate and maintain federal reference monitors
and establishes federally-approved protocols for sample collection,
handling, and analysis. Air monitoring data is submitted to EPA's
national ``AIRS'' database.
The provisions in state law for the collection and analysis of
ambient air quality data are contained in the MT CAA, 75-2-101 et seq.,
MCA, and specifically, 75-2-112, MCA, Powers and Responsibilities of
Department.
Montana's air monitoring programs and data systems meet the
requirements of CAA section 110(a)(2)(B). Therefore, EPA is proposing
to approve Montana's infrastructure SIP for the 2008 Pb, 2008 ozone,
2010 NO2, 2010 SO2 and 2012 PM2.5
NAAQS with respect to the general requirements in section 110(a)(2)(B).
3. Program for enforcement of control measures: Section
110(a)(2)(C) requires SIPs to include a program to provide for the
enforcement of the measures described in subparagraph (A), and
regulation of the modification and construction of any stationary
source within the areas covered by the plan as necessary to assure
NAAQS are achieved, including a permit program as required in parts C
and D.
To generally meet the requirements of section 110(a)(2)(C), the
State is required to have SIP-approved PSD, nonattainment NSR, and
minor NSR permitting programs adequate to implement the 2008 Pb, 2008
ozone, 2010 NO2, 2010 SO2 and 2012
PM2.5 NAAQS. As explained elsewhere in this action, EPA is
not evaluating nonattainment related provisions, such as the
nonattainment NSR program required by part D of the Act. EPA is
evaluating the State's PSD program as required by part C of the Act,
and the State's minor NSR program as required by 110(a)(2)(C).
PSD Requirements
With respect to Elements (C) and (J), the EPA interprets the CAA to
require each state to make an infrastructure SIP submission for a new
or revised NAAQS that demonstrates that the air agency has a complete
PSD permitting program meeting the current requirements for all
regulated NSR pollutants. The requirements of Element D(i)(II) may also
be satisfied by demonstrating the air agency has a complete PSD
permitting program correctly addressing all regulated NSR pollutants.
Montana has shown that it currently has a PSD program in place that
covers all regulated NSR pollutants, including greenhouse gases (GHGs).
On June 23, 2014, the United States Supreme Court issued a decision
addressing the application of PSD permitting requirements to GHG
emissions. Utility Air Regulatory Group v. Environmental Protection
Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not
treat GHGs as an air pollutant for purposes of determining whether a
source is a major source required to obtain a PSD permit. The Court
also said that the EPA could continue to require that PSD permits,
otherwise required based on emissions of pollutants other than GHGs
(anyway sources) contain limitations on GHG emissions based on the
application of Best Available Control Technology (BACT).
In accordance with the Supreme Court decision, on April 10, 2015,
the U.S. Court of Appeals for the District of Columbia Circuit (the
D.C. Circuit) issued an amended judgment vacating the regulations that
implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas
Tailoring Rule, but not the regulations that implement Step 1 of that
rule. Step 1 of the Tailoring Rule covers sources that are required to
obtain a PSD permit based on emissions of pollutants other than GHGs.
Step 2 applied to sources that emitted only GHGs above the thresholds
triggering the requirement to obtain a PSD permit. The amended judgment
preserves, without the need for additional rulemaking by the EPA, the
application of the BACT requirement to GHG emissions from Step 1 or
``anyway'' sources. With respect to Step 2 sources, the D.C. Circuit's
amended judgment vacated the regulations at issue in the litigation,
including 40 CFR 51.166(b)(48)(v), ``to the extent they require a
stationary source to obtain a PSD permit if greenhouse gases are the
only pollutant (i) that the source emits or has the potential to emit
above the applicable major source thresholds, or (ii) for which there
is a significant emission increase from a modification.''
The EPA is planning to take additional steps to revise federal PSD
rules in light of the Supreme Court opinion and subsequent D.C. Circuit
judgment. Some states have begun to revise their existing SIP-approved
PSD programs in light of these court decisions, and some states may
prefer not to initiate this process until they have more information
about the planned revisions to EPA's PSD regulations. The EPA is not
expecting states to have revised their PSD programs in anticipation of
the EPA's planned actions to revise its PSD program rules in response
to the court decisions.
At present, the EPA has determined the State's SIP is sufficient to
satisfy Elements (C), (D)(i)(II) element 3, and (J) with respect to
GHGs. This is because the PSD permitting program previously approved by
the EPA into the SIP continues to require that PSD permits issued to
``anyway sources'' contain limitations on GHG emissions based on the
application of BACT. The SIP contains the PSD requirements for applying
the BACT requirement to greenhouse gas emissions from ``anyway
sources'' that are necessary at this time. The application of those
requirements is not impeded by the presence of other previously-
approved provisions regarding the permitting of Step 2 sources.
Accordingly, the Supreme Court decision and subsequent D.C. Circuit
judgment do not prevent the EPA's approval of Montana's infrastructure
SIP as to the requirements of Elements (C), (D)(i)(II) element 3 and
(J).
In our July 22, 2011 rulemaking titled ``Implementation Plan
Revisions; Infrastructure Requirements for the 1997 8-Hour Ozone
National Ambient Air Quality Standard; Montana'' (76 FR 43918) we
disapproved the Montana infrastructure SIP for the 1997 ozone
[[Page 4229]]
NAAQS for elements (C) and (J) on the basis that Montana's SIP-approved
PSD program did not properly regulate nitrogen oxides as an ozone
precursor. For the same reason, we later disapproved Montana's
infrastructure SIP for the 1997 and 2006 PM2.5 NAAQS for
elements (C) and (J) in our July 30, 2013 rulemaking titled
``Promulgation of State Implementation Plan Revisions; Infrastructure
requirements for the 1997 and 2006 P.M.2.5 National Ambient
Air Quality Standards; Montana'' (78 FR 45864). On January 29, 2015,
(80 FR 4793), we approved a Montana SIP revision that addressed the PSD
requirements of the Phase 2 Ozone Implementation Rule promulgated in
2005 (70 FR 71612). As a result, the approved Montana PSD program meets
current requirements for ozone.
Finally, we evaluate the PSD program with respect to current
requirements for PM2.5. In particular, on May 16, 2008, EPA
promulgated the rule, ``Implementation of the New Source Review Program
for Particulate Matter Less Than 2.5 Micrometers (PM2.5)''
(73 FR 28321) and on October 20, 2010 EPA promulgated the 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). EPA regards adoption of these PM2.5 rules as
a necessary requirement when assessing a PSD program for the purposes
of element (C).
On January 4, 2013, the U.S. Court of Appeals, in Natural Resources
Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), issued a judgment
that remanded EPA's 2007 and 2008 rules implementing the 1997
PM2.5 NAAQS. The court ordered EPA to ``repromulgate these
rules pursuant to Subpart 4 consistent with this opinion.'' Id. at 437.
Subpart 4 of part D, Title 1 of the CAA establishes additional
provisions for particulate matter nonattainment areas.
The 2008 implementation rule addressed by the court decision,
``Implementation of New Source Review (NSR) Program for Particulate
Matter Less Than 2.5 Micrometers (PM2.5),'' (73 FR 28321,
May 16, 2008), promulgated NSR requirements for implementation of
PM2.5 in nonattainment areas (nonattainment NSR) and
attainment/unclassifiable areas (PSD). As the requirements of Subpart 4
only pertain to nonattainment areas, EPA does not consider the portions
of the 2008 Implementation rule that address requirements for
PM2.5 attainment and unclassifiable areas to be affected by
the court's opinion. Moreover, EPA does not anticipate the need to
revise any PSD requirements promulgated in the 2008 Implementation rule
in order to comply with the court's decision. Accordingly, EPA's
proposed approval of Montana's infrastructure SIP as to elements C or J
with respect to the PSD requirements promulgated by the 2008
Implementation rule does not conflict with the court's opinion.
The court's decision with respect to the nonattainment NSR
requirements promulgated by the 2008 Implementation rule also does not
affect EPA's action on the present infrastructure action. EPA
interprets the Act to exclude nonattainment area requirements,
including requirements associated with a nonattainment NSR program,
from infrastructure SIP submissions due three years after adoption or
revision of a NAAQS. Instead, these elements are typically referred to
as nonattainment SIP or attainment plan elements, which would be due by
the dates statutorily prescribed under subpart 2 through 5 under part
D, extending as far as 10 years following designations for some
elements.
The second PSD requirement for PM2.5 is contained in
EPA's 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). EPA regards
adoption of the PM2.5 increments as a necessary requirement
when assessing a PSD program for the purposes of element (C).
On August 21, 2012, Montana submitted revisions to EPA which
addressed the requirements of the 2008 PM2.5 NSR
Implementation Rule and the 2010 Increment Rule. Portions of the 2010
Increment rule were vacated by the Federal Courts (Sierra Club v. EPA).
EPA subsequently revised the affected NSR-PSD rules accordingly (78 FR
73698, Dec. 9, 2013). On March 24, 2015, Montana submitted revisions
which addressed the Court's decision and supersedes and replaces these
aspects of the August 21, 2012 submittal. These submittals are
available within this docket.
In this action, we propose to approve the necessary portions of
Montana's August 21, 2012 and March 24, 2015 submittals to reflect the
2008 PM2.5 Implementation Rule and the 2010 PM2.5
Increment Rule; specifically 40 CFR part 166, paragraphs (b)(14)(i),
(ii), (iii), (b)(15)(i), (ii), (b)(23)(i), (b)(49)(i), (vi), and
paragraph (c)(1). EPA is proposing to approve revisions to: ARM
17.8.801(3), 17.8.801(21), 17.8.801(27), 17.8.804(1), ARM
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) from the August 21, 2012 submittal. We
propose no action on revisions to ARM 17.8.818(7)(a)(iii) and
17.8.820(2) because they were superseded by the March 24, 2015
submittal. We are not proposing to act on any other portions of the
August 21, 2012 submittal.
EPA is proposing to approve revisions from the March 24, 2015
submittal to ARM 17.8.818(7)(a)(iii) on the condition that the State
adopts and submits specific revisions within one year of EPA's final
action on these infrastructure submittals; specifically to remove the
phrase ``24-hour average'' in ARM 17.8.818(7)(a)(iii) .\4\ We propose
no action on ARM 17.8.820(2) because it deletes a section of the ARM
which was never approved into the State's SIP. The submitted revisions
make Montana's PSD program up to date with respect to current
requirements for PM2.5.
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\4\ See ``Section 128 and 2012 PM2.5 Cover Letter and
PSD Commitment Letter'' submitted to EPA on December 17, 2015,
contained within this docket.
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EPA is proposing to approve Montana's SIP for the 2008 Pb, 2008
ozone, 2010 NO2, 2010 SO2 and 2012
PM2.5 NAAQS with respect to the requirement in section
110(a)(2)(C) to include a PSD permit program in the SIP as required by
part C of the Act on the condition that the State adopts and submits
revisions to ARM 17.8.818(7)(a)(iii) as previously described.
Minor NSR
The State has a SIP-approved minor NSR program, adopted under
section 110(a)(2)(C) of the Act. The minor NSR program was originally
approved by EPA on March 22, 1972. Since approval of the minor NSR
program, the State and EPA have relied on the program to assure that
new and modified sources not captured by the major NSR permitting
programs do not interfere with attainment and maintenance of the NAAQS.
EPA is proposing to approve Montana's infrastructure SIP for the
2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012
PM2.5 NAAQS with respect to the general requirement in
section 110(a)(2)(C) to include a program in the SIP that regulates the
enforcement, modification, and construction of any stationary source as
necessary to assure that the NAAQS are achieved.
4. Interstate Transport: The interstate transport provisions in CAA
section 110(a)(2)(D)(i) (also called ``good neighbor'' provisions)
require each state
[[Page 4230]]
to submit a SIP that prohibits emissions that will have certain adverse
air quality effects in other states. CAA section 110(a)(2)(D)(i)
identifies four distinct elements related to the impacts of air
pollutants transported across state lines. The two elements under
110(a)(2)(D)(i)(I) require SIPs to contain adequate provisions to
prohibit any source or other type of emissions activity within the
state from emitting air pollutants that will (element 1) contribute
significantly to nonattainment in any other state with respect to any
such national primary or secondary NAAQS, and (element 2) interfere
with maintenance by any other state with respect to the same NAAQS. The
two elements under 110(a)(2)(D)(i)(II) require SIPs to contain adequate
provisions to prohibit emissions that will interfere with measures
required to be included in the applicable implementation plan for any
other state under part C (element 3) to prevent significant
deterioration of air quality or (element 4) to protect visibility. In
this action, EPA is addressing all four elements of CAA section
110(a)(2)(D)(i) with regard to the 2008 Pb and 2010 NO2
NAAQS. EPA is addressing only elements 3 and 4 of CAA section
110(a)(2)(D)(i)(II) for the 2008 ozone, 2010 SO2 and 2012
PM2.5 NAAQS. We will also address elements 3 and 4 for the
2006 PM2.5 NAAQS, because EPA did not address these elements
as part of the July 30, 2013 action in which we approved elements 1 and
2 for the 2006 PM2.5 NAAQS (78 FR 45869). We are not
addressing elements 1 and 2 for the 2008 ozone \5\ 2010 SO2
and 2012 PM2.5 NAAQS in this action. These elements will be
addressed in a later rulemaking.
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\5\ EPA proposed approval of elements 1 and 2 of Montana's SIP
for the 2008 ozone NAAQS in a notice published November 23, 2015 (80
FR 72937).
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A. Evaluation of Significant Contribution to Nonattainment and
Interference With Maintenance
2008 Pb NAAQS
Montana's analysis of potential interstate transport for the 2008
Pb NAAQS discussed the lack of sources with significant Pb emissions
near the State's borders. Montana's analysis is available in the docket
for this action.
As noted in our 2011 Memo, there is a sharp decrease in Pb
concentrations, at least in the coarse fraction, as the distance from a
Pb source increases. For this reason, EPA found that the ``requirements
of subsection (2)(D)(i)(I) (prongs 1 and 2) could be satisfied through
a state's assessment as to whether or not emissions from Pb sources
located in close proximity to their state borders have emissions that
impact the neighboring state such that they contribute significantly to
nonattainment or interfere with maintenance in that state.'' \6\ In
that guidance document, EPA further specified that any source appeared
unlikely to contribute significantly to nonattainment unless it was
located less than 2 miles from a state border and emitted at least 0.5
tons per year of Pb. Montana's 110(a)(2)(D)(i)(I) analysis specifically
noted that there are no sources in the State that meet both of these
criteria. EPA concurs with the State's analysis and conclusion that no
Montana sources have the combination of Pb emission levels and
proximity to nearby nonattainment or maintenance areas to contribute
significantly to nonattainment in or interfere with maintenance by
other states for this NAAQS. Montana's SIP is therefore adequate to
ensure that such impacts do not occur. We are proposing to approve
Montana's submission in that its SIP meets the requirements of section
110(a)(2)(D)(i) for the 2008 Pb NAAQS.
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\6\ 2011 Memo, at pg 8.
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2010 NO2 NAAQS
Montana's 2010 NO2 transport analysis for elements 1 and
2 of 110(a)(2)(D)(i) describes how sources in the State are subject to
various permitting requirements. Montana asserts that these
requirements prevent sources from emitting NO2 in amounts
that would contribute significantly to nonattainment or interfere with
maintenance of the NAAQS in other states. The State's analysis is
available in the docket for this action.
EPA concurs with the conclusion of Montana's 2010 NO2
transport analysis. Due to Montana's limited technical analysis, EPA
considered additional factors before reaching this conclusion,
specifically NO2 monitoring data from Montana and
surrounding states. EPA notes that the highest monitored NO2
design values in each state bordering or near Montana are significantly
below the NAAQS (see Table 1). This fact supports the State's
contention that significant contribution to nonattainment or
interference with maintenance of the NO2 NAAQS from Montana
is unlikely. As shown in Table 1, the maximum design values in states
bordering Montana are well below the 2010 NO2 NAAQS. In
addition, no areas in the U.S. have been designated nonattainment for
the 2010 NO2 NAAQS. As the states near Montana are not only
attaining, but also having no trouble maintaining the NAAQS, there are
no areas to which Montana could significantly contribute to
nonattainment or interfere with maintenance of the 2010 NO2
NAAQS.
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\7\ Idaho's maximum design value was calculated using EPA's
AirData Web site, at http://www.epa.gov/airquality/airdata/ad_rep_mon.html.
Table 1--Highest Monitored 2010 NO2 NAAQS Design Values
------------------------------------------------------------------------
2012-2014 Design % of NAAQS
State value (100 ppb)
------------------------------------------------------------------------
Idaho............................. 43 ppb \7\.......... 43
North Dakota...................... 35 ppb.............. 35
South Dakota...................... 38 ppb.............. 38
Wyoming........................... 35 ppb.............. 35
------------------------------------------------------------------------
* Source: http://www.epa.gov/airtrends/values.html.
[[Page 4231]]
In addition to the monitored levels of NO2 in states
near Montana being well below the NAAQS, Montana's highest official
design value from 2012-2014 was also significantly below this NAAQS (7
ppb).\8\
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\8\ http://www.epa.gov/airtrends/values.html.
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Based on all of these factors, EPA concurs with the State's
conclusion that Montana does not contribute significantly to
nonattainment or interfere with maintenance of the 2010 NO2
NAAQS in other states. EPA is therefore proposing to determine that
Montana's SIP includes adequate provisions to prohibit sources or other
emission activities within the State from emitting NO2 in
amounts that will contribute significantly to nonattainment in or
interfere with maintenance by any other state with respect to the
NO2 NAAQS.
B. Evaluation of Interference With Measures To Prevent Significant
Deterioration (PSD)
With regard to the PSD portion of CAA section 110(a)(2)(D)(i)(II),
this requirement may be met by a state's confirmation in an
infrastructure SIP submission that new major sources and major
modifications in the state are subject to a comprehensive EPA-approved
PSD permitting program in the SIP that applies to all regulated new
source review (NSR) pollutants and that satisfies the requirements of
EPA's PSD implementation rules.\9\ As noted in the discussion for
infrastructure element (C) earlier in this notice, EPA is proposing to
conditionally approve CAA section 110(a)(2) element (C) for Montana's
infrastructure SIP for the 2008 Pb, 2008 ozone, 2010 NO2,
2010 SO2, and 2012 PM2.5 NAAQS with respect to
PSD requirements. As discussed in detail in that section, Montana's PSD
program will meet the current structural requirements of 110(a)(2)(C)
for PM2.5 on the condition that the State adopts and submits
specific revisions within one year of EPA's final action on these
infrastructure submittals to correct the language in ARM
17.8.818(7)(a)(iii). We are also proposing to conditionally approve
Montana's infrastructure SIP as meeting the 110(a)(2)(D)(i)(II) element
3 (PSD) requirements for 2006 24-hour PM2.5 NAAQS.
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\9\ See 2013 Memo.
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As stated in the 2013 Memo, in-state sources not subject to PSD for
any one or more of the pollutants subject to regulation under the CAA
because they are in a nonattainment area for a NAAQS related to those
particular pollutants may also have the potential to interfere with PSD
in an attainment or unclassifiable area of another state. One way a
state may satisfy element 3 with respect to these sources is by citing
an air agency's EPA-approved nonattainment NSR provisions addressing
any pollutants for which the state has designated nonattainment areas.
Montana has a SIP-approved nonattainment NSR program which ensures
regulation of major sources and major modifications in nonattainment
areas, and therefore satisfies element 3 with regard to this
requirement.\10\
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\10\ See ARM 17.8.901-906.
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EPA is proposing to conditionally approve the infrastructure SIP
submission with regard to the requirements of element 3 of section
110(a)(2)(D)(i) for the 2006 24-hour PM2.5, 2008 Pb, 2008
Ozone, 2010 NO2, 2010 SO2 and 2012
PM2.5 NAAQS.
C. Evaluation of Interference With Measures To Protect Visibility
The determination of whether the CAA section 110(a)(2)(D)(i)(II)
requirement for visibility is satisfied is closely connected to EPA's
regional haze program. Under the regional haze program, each state with
a Class I area is required to submit a regional haze SIP with
reasonable progress goals for each such area that provides for an
improvement in visibility for the most impaired days and ensures no
degradation of the best days. CAA section 169A.
Because of the often significant impacts on visibility from the
interstate transport of pollutants, we interpret the provisions of CAA
section 110(a)(2)(D)(i)(II) described above as requiring states to
include in their SIPs measures to prohibit emissions that would
interfere with the reasonable progress goals set to protect Class I
areas in other states. This is consistent with the requirements in the
regional haze program which explicitly require each state to address
its share of the emission reductions needed to meet the reasonable
progress goals for surrounding Class I areas. 64 FR 35714, 35735 (July
1, 1999).
Montana did not submit a regional haze SIP to EPA, which in turn
required EPA to promulgate a federal implementation plan (FIP) to
satisfy the regional haze requirements for the State. EPA finalized its
regional haze FIP for Montana in a rule published September 18, 2012
(77 FR 57864). Several parties filed petitions for review of the
Montana regional haze FIP. In Nat'l Parks Conservation Ass'n v. EPA,
788 F.3d 1134 (9th Cir. 2015), the U.S. Court of Appeals for the Ninth
Circuit vacated and remanded to EPA certain portions of the regional
haze FIP setting NOX and SO2 emission limits at
two facilities in Montana. EPA is currently working to address the
remand of these portions of the Montana regional haze FIP in accordance
with the court's decision.
In its 2008 ozone, 2010 SO2 and 2010 NO2
NAAQS infrastructure certifications, Montana asserted that each of
these pollutants was ``generally insignificant'' related to impacts on
visibility impairment, emitted in limited amounts in the state, and
that significant impacts from each of these pollutants are ``mostly
located away'' from state borders. In its February 10, 2010
certification for the 2006 PM2.5 NAAQS, the State did not
directly address visibility impacts from Montana to other states, and
instead generally addressed element 110(a)(2)(D)(i).
In its 2008 Pb NAAQS certification, Montana cited the 2011 Memo in
noting the general insignificance of Pb-related impacts on visibility
impairment, and stated that significant impacts from Pb emissions from
stationary sources are expected to be limited to short distances from
the source. Montana affirmed that it did not contain sources with 0.5
tpy or greater lead emissions located within two miles of the State's
border and therefore concluded that it met the requirements of
110(a)(2)(D)(i)(II) with respect to visibility for the 2008 Pb NAAQS.
In its 2012 PM2.5 NAAQS certification, Montana asserted
that their Visibility Plan and FIP, which is in place to satisfy
requirements of the EPA Regional Haze Program (77 FR 57863, Sept. 18,
2012), demonstrate that sources in Montana do not interfere with
visibility protection in other states. However, they acknowledge that,
in accordance with EPA's 2013 infrastructure SIP guidance, a FIP cannot
be relied upon to meet the requirements of element 110(a)(2)(D)(i)(II)
related to visibility and therefore the requirements of element 4 are
not met.
EPA disagrees with the State's assertions that NO2,
SO2 and ozone are generally insignificant in their impacts
on visibility impairment. See 77 FR at 23995, 24053-54 (EPA determined
in its regional haze FIP rulemaking that Montana emissions have impacts
at Class I areas in other states). Montana's claim that significant
impacts from these three pollutants are located away from state borders
is conclusory and not supported by relevant information or analysis. As
the State does not have a fully approved regional haze SIP, and has not
otherwise demonstrated that its SIP satisfies the visibility
requirement of section 110(a)(2)(D)(i)(II), EPA proposes
[[Page 4232]]
to disapprove this portion of Montana's SIP for the 2006
PM2.5, 2008 ozone, 2010 NO2 and 2010
SO2 NAAQS. Because EPA in the Montana regional haze FIP has
and will continue to address visibility impairment from Montana sources
in Class I areas outside of the State, this disapproval will not
require further action from the State, and does not create a new FIP
obligation for EPA.
Regarding the 2008 Pb NAAQS, EPA agrees that significant impacts
from Pb emissions from stationary sources are expected to be limited to
short distances from the source and most, if not all, Pb stationary
sources are located at distances from Class I areas such that
visibility impacts would be negligible. Further, when evaluating the
extent to which Pb could impact visibility, EPA has found Pb-related
visibility impacts insignificant (e.g., less than 0.10 percent).\11\
Montana does not have any major sources of Pb located within ten miles
of a neighboring state's Class I area. EPA proposes to approve
Montana's conclusion that it does not have any significant sources of
lead emissions within 2 miles of its border and that it therefore does
not have emissions of Pb that would interfere with the requirements of
section 110(a)(2)(D)(i)(II) with respect to visibility.
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\11\ 2013 Memo at 33.
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EPA agrees with Montana's assertion that its SIP does not satisfy
the visibility requirements of section 110(a)(2)(D)(i)(II) for the 2012
PM2.5 NAAQS. EPA proposes to disapprove this portion of the
Montana SIP.
5. Interstate and International transport provisions: CAA section
110(a)(2)(D)(ii) requires SIPs to include provisions ensuring
compliance with the applicable requirements of CAA sections 126 and 115
(relating to interstate and international pollution abatement).
Specifically, CAA section 126(a) requires new or modified major sources
to notify neighboring states of potential impacts from the source.
Section 126(a) of the CAA requires notification to affected, nearby
states of major proposed new (or modified) sources. Sections 126(b) and
(c) pertain to petitions by affected states to the Administrator of the
EPA (Administrator) regarding sources violating the ``interstate
transport'' provisions of section 110(a)(2)(D)(i). Section 115 of the
CAA similarly pertains to international transport of air pollution.
As required by 40 CFR 51.166(q)(2)(iv), Montana's SIP-approved PSD
program requires notice to states whose lands may be affected by the
emissions of sources subject to PSD.\12\ This suffices to meet the
notice requirement of section 126(a).
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\12\ See Administrative Rule of Montana (``ARM'')
17.8.826(2)(d).
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Montana has no pending obligations under sections 126(c) or 115(b);
therefore, its SIP currently meets the requirements of those sections.
In summary, the SIP meets the requirements of CAA section
110(a)(2)(D)(ii), and EPA is therefore proposing approval of this
element for the 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2 and 2012 PM2.5 NAAQS. EPA is also proposing
to approve the Montana SIP as meeting the requirements of section
110(a)(2)(D)(ii) for the 1997 and 2006 PM2.5 NAAQS. Montana
submitted an infrastructure certification generally addressing CAA
section 110(a)(2)(D) for the 1997 and 2006 PM2.5 NAAQS on
February 10, 2010.
6. Adequate resources: Section 110(a)(2)(E)(i) requires states to
provide necessary assurances that the state will have adequate
personnel, funding, and authority under state law to carry out the SIP
(and is not prohibited by any provision of federal or state law from
carrying out the SIP or portion thereof). Section 110(a)(2)(E)(ii) also
requires each state to comply with the requirements respecting state
boards under CAA section 128. Section 110(a)(2)(E)(iii) requires states
to ``provide necessary assurances that, where the State has relied on a
local or regional government, agency, or instrumentality for the
implementation of any [SIP] provision, the State has responsibility for
ensuring adequate implementation of such [SIP] provision.''
a. Sub-Elements (i) and (iii): Adequate Personnel, Funding, and Legal
Authority Under State Law To Carry Out Its SIP, and Related Issues
The provisions contained in 75-2-102, MCA, 75-2-111, MCA, and 75-2-
112, MCA, provide adequate authority for the State of Montana and the
DEQ to carry out its SIP obligations with respect to the 2008 Pb, 2008
ozone, 2010 NO2, 2010 SO2 and 2012
PM2.5 NAAQS. The State receives sections 103 and 105 grant
funds through its Performance Partnership Grant along with required
state matching funds to provide funding necessary to carry out
Montana's SIP requirements.
With respect to section 110(a)(2)(E)(iii), the regulations cited by
Montana in their certifications (75-2-111 and 75-2-112, MCA) and
contained within this docket also provide the necessary assurances that
the State has responsibility for adequate implementation of SIP
provisions by local governments. Therefore, we propose to approve
Montana's SIP as meeting the requirements of section 110(a)(2)(E)(i)
and (E)(iii) for the 2008 Pb, 2008 ozone, 2010
NO2, 2010 SO2 and 2012 PM2.5 NAAQS.
b. Sub-Element (ii): State Boards
Section 110(a)(2)(E)(ii) requires each state's SIP to contain
provisions that comply with the requirements of section 128 of the CAA.
That provision contains two explicit requirements: (i) That any board
or body which approves permits or enforcement orders under the CAA
shall have at least a majority of members who represent the public
interest and do not derive a significant portion of their income from
persons subject to such permits and enforcement orders; and (ii) that
any potential conflicts of interest by members of such board or body or
the head of an executive agency with similar powers be adequately
disclosed.
In our July 30, 2013 action, we disapproved Montana's February 10,
2010 infrastructure SIP submission for the 1997 and 2006
PM2.5 NAAQS for CAA Section 110(a)(2)(E)(ii) because the
Montana SIP did not contain provisions meeting requirements of CAA
section 128. On December 17, 2015, EPA received a submission from the
State of Montana to address the requirements of section 128. The
Montana BER approved new rule language on October 16, 2015. A copy of
New Rule I (ARM 17.8.150), II (ARM 17.8.151), and III (ARM 17.8.152) is
available within this docket. New Rule II Board Action addresses board
composition requirements of section 128(a)(1) and New Rule III
Reporting addresses conflict of interest requirements of section
128(a)(2). We propose to approve this new rule language as meeting the
requirements of section 128 for the reasons explained in more detail
below. Because this revision meets the requirements of section 128, we
also propose to approve the State's infrastructure SIP submissions for
element 110(a)(2)(E)(ii). The State made these infrastructure SIP
submissions in connection with the 2012 PM2.5 NAAQS, but
section 128 is not NAAQS-specific and once the State has met the
requirements of section 128 that is sufficient for purposes of
infrastructure SIP requirements for all NAAQS. If we finalize this
proposed approval for the 2008 Pb, 2008 ozone, 2010
NO2, 2010 SO2, and 2012 PM2.5 NAAQS,
this will also resolve the prior disapproval for element
110(a)(2)(E)(ii) for the1997 and 2006 PM2.5 NAAQS.
[[Page 4233]]
We are proposing to approve the State's December 17, 2015 SIP
submission as meeting the requirements of section 128 because we
believe that it complies with the statutory requirements and is
consistent with EPA's guidance recommendations concerning section 128.
In 1978, EPA issued a guidance memorandum recommending ways states
could meet the requirements of section 128, including suggested
interpretations of certain key terms in section 128.\13\ In this
proposal notice, we discuss additional relevant aspects of section 128.
We first note that, in the conference report on the 1977 amendments to
the CAA, the conference committee stated, ``[i]t is the responsibility
of each state to determine the specific requirements to meet the
general requirements of [section 128].'' \14\ This legislative history
indicates that Congress intended states to have some latitude in
adopting SIP provisions with respect to section 128, so long as states
meet the statutory requirements of the section. We also note that
Congress explicitly provided in section 128 that states could elect to
adopt more stringent requirements, as long as the minimum requirements
of section 128 are met.
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\13\ Memorandum from David O. Bickart, Deputy General Counsel,
to Regional Air Directors, Guidance to States for Meeting Conflict
of Interest Requirements of Section 128 (Mar. 2, 1978).
\14\ H.R. Rep. 95-564 (1977), reprinted in 3 Legislative History
of the Clean Air Act Amendments of 1977, 526-27 (1978).
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In implementing section 128, the EPA has identified a number of key
considerations relevant to evaluation of a SIP submission. EPA has
identified these considerations in the 1978 guidance and in subsequent
rulemaking actions on SIP submissions relevant to section 128, whether
as SIP revisions for this specific purpose or as an element of broader
actions on infrastructure SIP submissions for one or more NAAQS.
Each state must meet the requirements of section 128 through
provisions that EPA approves into the state's SIP and are thus made
federally enforceable. Section 128 explicitly mandates that each SIP
``shall contain requirements'' that satisfy subsections 128(a)(1) and
128(a)(2). A mere narrative description of state statutes or rules, or
of a state's current or past practice in constituting a board or body
and in disclosing potential conflicts of interest, is not a requirement
contained in the SIP and does not satisfy the plain text of section
128.
Subsection 128(a)(1) applies only to states that have a board or
body that is composed of multiple individuals and that, among its
duties, approves permits or enforcement orders under the CAA. It does
not apply in states that have no such multi-member board or body that
performs these functions, and where instead a single head of an agency
or other similar official approves permits or enforcement orders under
the CAA. This flows from the text of section 128, for two reasons.
First, as subsection 128(a)(1) refers to a majority of members of the
board or body in the plural, we think it reasonable to read subsection
128(a)(1) as not creating any requirements for an individual with sole
authority for approving permits or enforcement orders under the CAA.
Second, subsection 128(a)(2) explicitly applies to the head of an
executive agency with ``similar powers'' to a board or body that
approves permits or enforcement orders under the CAA, while subsection
128(a)(1) omits any reference to heads of executive agencies. We infer
that subsection 128(a)(1) should not apply to heads of executive
agencies who approve permits or enforcement orders.
Subsection 128(a)(2) applies to all states, regardless of whether
the state has a multi-member board or body that approves permits or
enforcement orders under the CAA. Although the title of section 128 is
``State boards,'' the language of subsection 128(a)(2) explicitly
applies where the head of an executive agency, rather than a board or
body, approves permits or enforcement orders. In instances where the
head of an executive agency delegates his or her power to approve
permits or enforcement orders, or where statutory authority to approve
permits or enforcement orders is nominally vested in another state
official, the requirement to adequately disclose potential conflicts of
interest still applies. In other words, EPA interprets section
128(a)(2) to apply to all states, regardless of whether a state board
or body approves permits or enforcement orders under the CAA or whether
a head of a state agency (or his/her delegates) performs these duties.
Thus, all state SIPs must contain provisions that require adequate
disclosure of potential conflicts of interest in order to meet the
requirements of subsection 128(a)(2). The question of which entities or
parties must be subject to such disclosure requirements must be
evaluated by states and EPA in light of the specific facts and
circumstances of each state's regulatory structure.
A state may satisfy the requirements of section 128 by submitting
for adoption into the SIP a provision of state law that closely tracks
or mirrors the language of the applicable provisions of section 128. A
state may take this approach in two ways. First, the state may adopt
the language of subsections 128(a)(1) and 128(a)(2) verbatim. Under
this approach, the state will be able to meet the continuing
requirements of section 128 without any additional, future SIP
revisions, even if the state adds or removes authority, either at the
state level or local level, to individual or to boards or bodies to
approve permits or enforcement orders under the CAA so long as the
state continues to meet section 128 requirements.
Second, the state may modify the language of subsections 128(a)(1)
(if applicable) and 128(a)(2) to name the particular board, body, or
individual official with approval authority. In this case, if the state
subsequently modifies that authority, the state may have to submit a
corresponding SIP revision to meet the continuing requirements of
section 128. If the state chooses to not mirror the language of section
128, the state may adopt state statutes and/or regulations that
functionally impose the same requirements as those of section 128,
including definitions for key terms such as those recommended in EPA's
1978 guidance. While any of these approaches would meet the minimum
requirements of section 128, the statute also explicitly authorizes
states to adopt more stringent requirements, for example to impose
additional requirements for recusal of board members from decisions,
above and beyond the explicit board composition requirements. Although
such recusal alone does not meet the requirements of section 128,
states have the authority to require that over and above the explicit
requirements of section 128. These approaches give states flexibility
in implementing section 128, while still ensuring consistency with the
statute.
EPA has evaluated the New Rule I Definitions, II Board Action, and
III Reporting (available within this docket) from the State in light of
the requirements of section 128, these key considerations previously
noted, and the recommendations in the 1978 guidance. The Montana Code
creates a Board of Environmental Review (BER) which consists of seven
members appointed by the Governor. A person who is directly and
adversely affected by the Montana DEQ's approval or denial of a permit
to construct an air pollution source may request a hearing before the
BER and the BER may uphold, alter, or reverse decisions of the Montana
DEQ. Similarly, a person who participated in the comment period on
Montana DEQ's issuance, renewal, amendment, or modification of a title
V operating permit may request a hearing
[[Page 4234]]
before the BER and the BER may uphold, alter, or reverse decisions of
the Montana DEQ. Finally, a person who receives an enforcement order
from Montana DEQ under Chapter 2 of Title 75, Air Quality, may request
a hearing before the BER and the BER may uphold, alter, or reverse
decisions of the Montana DEQ.
As EPA has explained in other rulemaking actions, e.g., 78 FR 32613
(May 31, 2013), we interpret section 128(a)(1) to mean that boards that
are the potential final decisionmaker via permit and enforcement order
appeals ``approve'' those permits and enforcement orders. For example,
by being the final decisionmaker with respect to questions such as
whether a source receives a permit and the specific contents of such a
permit, the board is an entity that approves the permit within the
meaning of 128(a)(1). Thus, the BER is subject to the requirements of
128(a)(1).
Montana's New Rule II Board Action, provides that the BER must be
composed in conformance with requirements of section 128 of the CAA for
all permits and enforcement orders initiated under Montana's air
pollution control authority. In essence, the rule prohibits the BER
from taking action if the BER does not meet the requirements of section
128(a)(1). The State has submitted New Rule II (ARM 17.8.151) to EPA
for adoption into their SIP, thus making a legally binding requirement
that the BER be comprised of a majority of members that represent the
public interest and do not derive a significant portion of their income
from parties subject to permit requirements or enforcement orders under
the CAA. The definitions of ``regulated person,'' ``represent the
public interest,'' and ``significant portion of income'' are consistent
with the recommendations in our 1978 guidance. We believe Montana's
submission of New Rule II satisfies the requirements of subsection
128(a)(1).
To meet the requirements of subsection 128(a)(2), the State's New
Rule III (ARM 17.8.152) Reporting, includes disclosure requirements
applying to members of the BER. At the first meeting each calendar
year, members of the BER must file with the BER secretary a written
certification that they ``represent the public interest \15\'' and do
not derive a ``significant portion of income'' from ``regulated
persons'' as defined in New Rule I (ARM 17.8.150) Definitions (4)(a),
(b) and (c). The board member must file with the BER a written
withdrawal of certification if they no longer represent the public
interest or has begun to derive a ``significant portion of income
\16\'' from ``regulated persons,'' as defined in New Rule I (5) and
(3)(a) and (b). Furthermore, board members must file with the BER a
written disclose of any ``potential conflicts of interest'' as defined
in New Rule I (2)(a) and (b). New Rule I defines ``potential conflict
of interest'' as ``(a) any income from a regulated person; or (b) any
interest or relationship that would preclude the individual having the
interest or relationship from being considered one who represents the
public interest.'' This definition is consistent with the suggested
definition in the 1978 guidance. We believe Montana's submission of New
Rule I and III satisfies the requirements of subsection 128(a)(2).
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\15\ New Rule I defines ``represent the public interest'' as a
person who ``(4) does not: (a) Own a controlling interest in or have
five percent or more of his or her capital invested in a regulated
person; (b) serve as attorney for, act as consultant for, or serve
as an officer or director of a regulated person; or (c) hold any
other official or contractual relationship with a regulated
person.''
\16\ New Rule I defines ``significant portion of income'' as
``(5) ten percent or more of gross personal income for a calendar
year, including retirement benefits, consulting fees, and stock
dividends, except that it shall mean 50 percent or more of gross
personal income for a calendar year if the recipient is over 60
years of age and is receiving such portion pursuant to retirement,
pension, or similar arrangement. For purposes of this section,
income derived from mutual-fund payments, or from other diversified
investments as to which the recipient does not know the identity of
the primary sources of income, shall be considered part of the
recipient's gross personal income but shall not be treated as income
derived from persons subject to permits or enforcement orders under
the Clean Air Act.''
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For the foregoing reasons, the EPA believes that the New Rules I
(ARM 17.8.150), II (ARM 17.8.151), and III (ARM 17.8.152) adopted by
the BER on October 16, 2015 and submitted to EPA for inclusion in the
SIP on December 17, 2015 contains provisions that meet the requirements
of section 128(a)(1) and section 128(a). Accordingly, we are proposing
approval of that submission and also proposing approval of the
infrastructure SIP submission as meeting the requirements of section
128 for the 2008 Pb, 2008 ozone, 2010 NO2, 2010
SO2 and 2012 PM2.5 NAAQS.
7. Stationary source monitoring system: Section 110(a)(2)(F)
requires: (i) The installation, maintenance, and replacement of
equipment, and the implementation of other necessary steps, by owners
or operators of stationary sources to monitor emissions from such
sources; (ii) Periodic reports on the nature and amounts of emissions
and emissions-related data from such sources; and (iii) Correlation of
such reports by the state agency with any emission limitations or
standards established pursuant to the Act, which reports shall be
available at reasonable times for public inspection.
The provisions cited by Montana (ARM 17.8.105 and 17.8.106) pertain
to testing requirements and protocols. Montana also incorporates by
reference 40 CFR part 51, appendix P, regarding minimum monitoring
requirements. (See ARM 17.8.103(1)(D)). In addition, Montana provides
for monitoring, recordkeeping, and reporting requirements for sources
subject to minor and major source permitting
Furthermore, Montana is required to submit emissions data to the
EPA for purposes of the National Emissions Inventory (NEI). The NEI is
the EPA's central repository for air emissions data. The EPA published
the Air Emissions Reporting Rule (AERR) on December 5, 2008, which
modified the requirements for collecting and reporting air emissions
data (73 FR 76539). The AERR shortened the time states had to report
emissions data from 17 to 12 months, giving states one calendar-year to
submit emissions data. All states are required to submit a
comprehensive emissions inventory every three years and report
emissions for certain larger sources annually through the EPA's online
Emissions Inventory System. States report emissions data for the six
criteria pollutants and their associated precursors--nitrogen oxides,
sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter and
volatile organic compounds. Many states also voluntarily report
emissions of hazardous air pollutants. Montana made its latest update
to the NEI in April 2013. EPA compiles the emissions data,
supplementing it where necessary, and releases it to the general public
through the Web site http://www.epa.gov/ttn/chief/eiinformation.html.
Based on the analysis above, we propose to approve the Montana SIP
as meeting the requirements of CAA section 110(a)(2)(F) for the 2008
Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012
PM2.5 NAAQS.
8. Emergency powers: Section 110(a)(2)(G) of the CAA requires
infrastructure SIPs to ``provide for authority comparable to that in
[CAA section 303] and adequate contingency plans to implement such
authority.''
Under CAA section 303, the EPA Administrator has authority to bring
suit to immediately restrain an air pollution source that presents an
imminent and substantial endangerment to public
[[Page 4235]]
health or welfare, or the environment.\17\ If such action may not
practicably assure prompt protection, then the Administrator has
authority to issue temporary administrative orders to protect the
public health or welfare, or the environment, and such orders can be
extended if EPA subsequently files a civil suit. We propose to find
that Montana's infrastructure SIP submittals and certain State statutes
provide for authority for the State comparable to that granted to the
EPA Administrator to act in the face of an imminent and substantial
endangerment to the public's health or welfare, or the environment.
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\17\ A discussion of the requirements for meeting CAA section
303 is provided in our notice of proposed rulemaking: Promulgation
of State Implementation Plan Revisions; Infrastructure Requirements
for the 1997 and 2006 PM2.5, 2008 Lead, 2008 Ozone, and
2010 NO2 National Ambient Air Quality Standards; South Dakota (79 FR
71040, Dec. 1, 2014) under ``VI. Analysis of State Submittals, 8.
Emergency powers.''
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Montana's SIP submittals with regard to the section 110(a)(2)(G)
emergency order requirements explain that Montana has an EPA approved
Emergency Episode Avoidance Plan (EEAP) (71 FR 19, Jan. 3, 2006).
According to the EEAP, ``the Department shall take the necessary
precautions to protect public health as set forth in 75-2-402 ,\18\
MCA, ``Emergency Powers.'' These precautions include, but are not
limited to, ordering a halt or curtailment of any operations,
activities, processes, or conditions the Department believes are
contributing to the air pollutant emergency episode.'' Additionally,
under 75-2-111(3) MCA ,\19\ Montana's environmental review board has
broad authority to ``issue orders necessary to effectuate the
purposes'' of Chapter 2. Also, under 75-2-112(2)(a) \20\ MCA, the DEQ
has the authority to use ``appropriate administrative and judicial
proceedings'' to enforce orders issued by the board. Any air pollution
discharge that created an emergency situation would constitute a
violation of the chapter and its purposes, therefore providing the BER
and the DEQ authority to issue administrative orders to stop discharges
that cause emergencies effecting welfare and the environment .\21\
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\18\ 75-2-402 MCA, Emergency Procedure:
``(1) Any other law to the contrary notwithstanding, if the
department finds that a generalized condition of air pollution
exists and that it creates an emergency requiring immediate action
to protect human health or safety, the department shall order
persons causing or contributing to the air pollution to immediately
reduce or discontinue the emission of air contaminants. Upon
issuance of this order, the department shall fix a place and time
within 24 hours for a hearing to be held before the board. Within 24
hours after the start of the hearing and without adjournment, the
board shall confirm, modify, or set aside the order of the
department.
(2) Except as provided in subsection (1), if the department
finds that emissions from the operation of one or more air
contaminant sources are causing imminent danger to human health or
safety, it may order the person responsible for the operation in
question to reduce or discontinue emissions immediately, without
regard for 75-2-401. In this event, the requirements for hearing and
confirmation, modification, or setting aside of orders as provided
in subsection (1) apply.
(3) This section does not limit any power that the governor or
any other officer may have to declare an emergency and act on the
basis of this declaration, whether the power is conferred by statute
or the constitution or is inherent to the office.''
\19\ 75-2-111, MCA. Powers of board:
``The board shall, subject to the provisions of 75-2-207:
(1) Adopt, amend, and repeal rules for the administration,
implementation, and enforcement of this chapter, for issuing orders
under and in accordance with 42 U.S.C. 7419, and for fulfilling the
requirements of 42 U.S.C. 7420 and regulations adopted pursuant to
that section, except that, for purposes other than agricultural open
burning, the board may not adopt permitting requirements or any
other rule relating to:
(a) any agricultural activity or equipment that is associated
with the use of agricultural land or the planting, production,
processing, harvesting, or storage of agricultural crops by an
agricultural producer and that is not subject to the requirements of
42 U.S.C. 7475, 7503, or 7661a;
(b) a commercial operation relating to the activities or
equipment referred to in subsection (1)(a) that remains in a single
location for less than 12 months and is not subject to the
requirements of 42 U.S.C. 7475, 7503, or 7661a; or
(c) forestry equipment and its associated engine used for
forestry practices that remain in a single location for less than 12
months and are not subject to the requirements of 42 U.S.C. 7475,
7503, or 7661a;
(2) hold hearings relating to any aspect of or matter in the
administration of this chapter at a place designated by the board.
The board may compel the attendance of witnesses and the production
of evidence at hearings. The board shall designate an attorney to
assist in conducting hearings and shall appoint a reporter who must
be present at all hearings and take full stenographic notes of all
proceedings, transcripts of which will be available to the public at
cost.
(3) issue orders necessary to effectuate the purposes of this
chapter;
(4) by rule require access to records relating to emissions;
(5) by rule adopt a schedule of fees required for permits,
permit applications, and registrations consistent with this chapter;
(6) have the power to issue orders under and in accordance with
42 U.S.C. 7419.''
\20\ 75-2-112, MAC, Powers and responsibilities of department.
``(1) The department is responsible for the administration of
this chapter.
(2) The department shall:
(a) by appropriate administrative and judicial proceedings,
enforce orders issued by the board;''
\21\ See email from David Klemp, Montana State Air Director to
EPA, Dec. 12, 2015, contained within this docket.
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While no single Montana statute mirrors the authorities of CAA
section 303, we propose to find that the combination of MCA provisions
discussed above provide for authority comparable to section 303 to
immediately bring suit to restrain and issue emergency orders for
applicable emergencies to take prompt administrative action against any
person causing or contributing to air pollution that presents an
imminent and substantial endangerment to public health or welfare, or
the environment. Consistent with EPA's 2013 Infrastructure SIP
Guidance, the narratives provided in Montana's SIP submittals about the
State's authorities applying to emergency episodes (as discussed
above), plus additional Montana statutes that we have considered, we
propose that they are sufficient to meet the authority requirement of
CAA section 110(a)(2)(G).
States must also have adequate contingency plans adopted into their
SIP to implement the air agency's emergency episode authority (as
discussed above). This can be done by submitting a plan that meets the
applicable requirements of 40 CFR part 51, subpart H for the relevant
NAAQS if the NAAQS is covered by those regulations. EPA approved
Montana's EEAP in 71 FR 19 (Jan. 3, 2006). We find that Montana's air
pollution emergency rules include PM10, ozone,
NO2, and SO2; establish stages of episode
criteria; provide for public announcement whenever any episode stage
has been determined to exist; and specify emission control actions to
be taken at each episode stage, consistent with the EPA emergency
episode SIP requirements set forth at 40 CFR part 51 subpart H
(prevention of air pollution emergency episode) for particulate matter,
ozone, NO2, and SO2.
As noted in the October 14, 2011 guidance,\22\ based on EPA's
experience to date with the Pb NAAQS and designating Pb nonattainment
areas, EPA expects that an emergency episode associated with Pb
emissions would be unlikely and, if it were to occur, would be the
result of a malfunction or other emergency situation at a relatively
large source of Pb. Accordingly, EPA believes the central components of
a contingency plan would be to reduce emissions from the source at
issue and communicate with the public as needed. We note that 40 CFR
part 51, subpart H (51.150-51.152) and 40 CFR part 51, Appendix L do
not apply to Pb.
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\22\ ``Guidance on Infrastructure State Implementation Plan
(SIP) Elements Required Under Sections 110(a)(1) and 110(a)(2) for
the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS).''
Steve Page, OAQPS Director, October 14, 2011, at p 13.
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Based on the above analysis, we propose approval of Montana's SIP
as
[[Page 4236]]
meeting the requirements of CAA section 110(a)(2)(G) for the 2008 Pb,
2008 ozone, and 2010 NO2, 2010 SO2 and 2012
PM2.5 NAAQS.
9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs
provide for revision of such plan: (i) From time to time as may be
necessary to take account of revisions of such national primary or
secondary ambient air quality standard or the availability of improved
or more expeditious methods of attaining such standard; and (ii),
except as provided in paragraph (3)(C), whenever the Administrator
finds on the basis of information available to the Administrator that
the SIP is substantially inadequate to attain the NAAQS which it
implements or to otherwise comply with any additional requirements
under this [Act].
Montana's statutory provisions in the Montana CAA at 75-2-101 et
seq., give the BER sufficient authority to meet the requirements of
110(a)(2)(H). Therefore, we propose to approve Montana's SIP as meeting
the requirements of CAA section 110(a)(2)(H).
10. Consultation with government officials, public notification,
PSD and visibility protection: Section 110(a)(2)(J) requires that each
SIP ``meet the applicable requirements of section 121 of this title
(relating to consultation), section 127 of this title (relating to
public notification), and part C of this subchapter (relating to PSD of
air quality and visibility protection).''
The State has demonstrated that it has the authority and rules in
place to provide a process of consultation with general purpose local
governments, designated organizations of elected officials of local
governments and any Federal Land Manager having authority over federal
land to which the SIP applies, consistent with the requirements of CAA
section 121 (see 59 FR 2988, Jan. 20, 1994). Furthermore, Montana's
Emergency Episode Avoidance Plan, approved into the SIP (71 FR 19, Jan.
3, 2006), meets the general requirements of CAA section 127.
Turning to the requirement in section 110(a)(2)(J) that the SIP
meet the applicable requirements of part C of title I of the Act, EPA
has evaluated this requirement in the context of infrastructure element
(C) in section VI.3 above. As discussed there, EPA proposes to
conditionally approve Montana's infrastructure SIP for the requirement
in 110(a)(2)(C) that the SIP include a permit program as required in
part C, on the condition that the State adopts and submits specific
revisions within one year of EPA's final action on these infrastructure
submittals; specifically to remove the phrase ``24-hour average'' in
ARM 17.8.818(7)(a)(iii). For the same reason, EPA proposes to
conditionally approve Montana's infrastructure SIP with regard to the
requirement in section 110(a)(2)(J) that the SIP meet the applicable
requirements of part C of title I the Act.
Finally, with regard to the applicable requirements for visibility
protection, EPA recognizes states are subject to visibility and
regional haze program requirements under part C of the Act. In the
event of the establishment of a new NAAQS, however, the visibility and
regional haze program requirements under part C do not change. Thus, we
find that there are no applicable visibility requirements under section
110(a)(2)(J) when a new NAAQS becomes effective.
Based on the above analysis, we propose to approve the Montana SIP
as meeting the requirements of CAA section 110(a)(2)(J) for the 2008
Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012
PM2.5 NAAQS with regard to sections 121 and 127 of the CAA,
and conditional approval of section 110(a)(2)(J) with regard to meeting
the applicable requirements of part C relating to PSD.
11. Air quality and modeling/data: Section 110(a)(2)(K) requires
each SIP provide for: (i) The performance of such air quality modeling
as the Administrator may prescribe for the purpose of predicting the
effect on ambient air quality of any emissions of any air pollutant for
which the Administrator has established a NAAQS; and (ii) the
submission, upon request, of data related to such air quality modeling
to the Administrator.
Montana's PSD program (see ARM 17.8.821(1)) requires estimates of
ambient air concentrations be based on applicable air quality models
specified in Appendix W of 40 CFR part 51, pertaining to the Guidelines
on Air Quality Models. Additionally, MCA 75-2-211. Powers of board and
MCA 75-2-112. Powers and responsibilities of department, provide
Montana with the broad authority to develop and implement an air
quality control program that includes conducting air quality modeling
to predict the effect on ambient air quality of any emissions of any
air pollutant for which a NAAQS has been promulgated.\23\ As a result,
the SIP provides for such air quality modeling as the Administrator has
prescribed with respect to the SIP outside of the nonattainment areas.
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\23\ See email from David Klemp, Montana State Air Director, to
EPA on Dec. 12, 2015, contained within this docket.
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Therefore, we propose to approve the Montana SIP as meeting the CAA
section 110(a)(2)(K) for the 2008 Pb, 2008 ozone, 2010 NO2,
2010 SO2 and 2012 PM2.5 NAAQS.
12. Permitting fees: Section 110(a)(2)(L) requires the owner or
operator of each major stationary source to pay to the permitting
authority, as a condition of any permit required under this act, a fee
sufficient to cover: (i) The reasonable costs of reviewing and acting
upon any application for such a permit; and (ii) if the owner or
operator receives a permit for such source, the reasonable costs of
implementing and enforcing the terms and conditions of any such permit
(not including any court costs or other costs associated with any
enforcement action), until such fee requirement is superseded with
respect to such sources by the Administrator's approval of a fee
program under title V.
Montana requires an applicant proposing to construct or modify an
air pollution source to pay an application fee, ARM 17.8.504 (State
rule only). Sources must also pay an annual operation fee, ARM 17.8.505
(State rule only). Under ARM 17.8.823(1), Source Information for PSD of
air quality, ``(1) The owner or operator of a proposed source or
modification shall submit the permit application fee required pursuant
to ARM 17.8.504 and all information necessary to perform any analysis
or make any determination required under procedures established in
accordance with this subchapter.'' ARM 17.8.823 was adopted into
Montana's SIP on August 13, 2001 (66 FR 42427). Additionally, ARM
17.8.1704, Registration Fees, for oil and gas facilities states that
``(1) The registration fee required by ARM 17.8.504 must be submitted
to the department with each registration submitted under this
subchapter. No fee is required for notifying the department, pursuant
to ARM 17.8.1703(4), of changes to registration information. (2) The
registration fee must be paid in its entirety at the time the
registration form is submitted to the department.'' ARM 17.8.1703 was
adopted into the Montana SIP on November 19, 2013 (78 FR 69296).
We also note that all the State SIPs we are proposing to approve in
this action cite the regulation that provides for collection of
permitting fees under Montana's approved title V permit program (65 FR
37049, June 13, 2000). As discussed in that approval, the State
demonstrated that the fees collected were sufficient to administer the
program.
[[Page 4237]]
Therefore, based on the State's experience in relying on the funds
collected through application and processing fees at ARM 17.8.504 and
ARM 17.8.505, and the use of title V fees to implement and enforce PSD
permits once they are incorporated into title V permits, we propose to
approve the submissions as supplemented by the State for the 2008 Pb,
2008 ozone, 2010 NO2, 2010 SO2 and 2012
PM2.5 NAAQS.
13. Consultation/participation by affected local entities: Section
110(a)(2)(M) requires states to provide for consultation and
participation in SIP development by local political subdivisions
affected by the SIP.
The statutory and other provisions cited in Montana's SIP
submittals (Section 75-2-112(2)(j) of the MT CAA, ARM 17.8.140,
17.8.141 and 17.8.142, contained within this docket) meet the
requirements of CAA section 110(a)(2)(M), so we propose to approve
Montana's SIP as meeting these requirements for the 2008 Pb, 2008
ozone, 2010 NO2, 2010 SO2 and 2012
PM2.5 NAAQS.
VII. What action is EPA taking?
In this action, EPA is proposing to approve 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 as shown in Table 2. EPA is proposing conditional
approval of 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 3. Elements we propose
no action on are reflected in Table 5. EPA is proposing to disapprove
(D)(i)(II) element 4 for the 2006 PM2.5, 2008 ozone, 2010
NO2, 2010 SO2, and 2012 PM2.5 NAAQS
(Table 4). As noted, finalization of this disapproval would not require
further action from the State, and does not create a new FIP obligation
for EPA. We also propose to approve revisions to the ARM from the
August 21, 2012 submittal (Table 2) and conditionally approve a
revision from the March 24, 2015 submittal (Table 3) 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 EPA's final
action on these infrastructure submittals, 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, EPA is proposing to approve new ARM 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 EPA's proposed rule action are
provided in Table 2, Table 3, Table 4 and Table 5.
Table 2--List of Montana Infrastructure Elements and Revisions That EPA
Is Proposing To Approve
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Proposed for approval
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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) and III (ARM 17.8.152).
------------------------------------------------------------------------
Table 3--List of Montana Infrastructure Elements and Revisions That EPA
Is Proposing To Conditionally Approve
------------------------------------------------------------------------
Proposed for conditional approval
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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.
December 17, 2015 submittal--2012 PM2.5 NAAQS:
(C) and (J) with respect to PSD, and (D)(i)(II) element 3.
[[Page 4238]]
March 24, 2015 submittal--Revisions to ARM, Prevention of Significant
Deterioration:
ARM 17.8.818(7)(a)(iii).
------------------------------------------------------------------------
Table 4--List of Montana Infrastructure Elements That EPA Is Proposing
To Disapprove
------------------------------------------------------------------------
Proposed for disapproval
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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 5--List of Montana Infrastructure Elements and Revisions That EPA Is Proposing To Take No Action on
[Proposed for no action]
----------------------------------------------------------------------------------------------------------------
Reason for proposed ``No Action''
-------------------------------------------------------------------
Revision
Revision to be Revision made deletes Revision
Revised section made in future in a separate section of the superseded by
rulemaking rulemaking ARM never revision in
action action (80 FR approved into March 24, 2015
72937) State's SIP State submittal
----------------------------------------------------------------------------------------------------------------
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 ...............
----------------------------------------------------------------------------------------------------------------
VIII. Incorporation by Reference
In this rule, the EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by
reference the Administrative Rules of Montana pertaining to major
source permitting and PM2.5 emission limits discussed in
section VI. 3. Program for enforcement of control measures and section
VI. b. Sub-element (ii): State boards, 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).
IX. 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, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves some state law as meeting federal
requirements and disapproves other state law because it does not meet
federal requirements; this proposed action does not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, 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
[[Page 4239]]
in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, 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 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 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).
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: January 12, 2016.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2016-01403 Filed 1-25-16; 8:45 am]
BILLING CODE 6560-50-P