[Federal Register Volume 60, Number 168 (Wednesday, August 30, 1995)]
[Rules and Regulations]
[Pages 45051-45054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21468]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[MT31-1-7007a; FRL-5275-1]


Clean Air Act Approval and Promulgation of PM10 State 
Implementation Plan for Montana; Missoula Air Pollution Control Program 
Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA approves the State implementation plan (SIP) revisions 
submitted by the State of Montana with a letter dated March 3, 1995. 
This submittal consists of several revisions to Missoula City-County 
Air Pollution Control Program regulations, which were adopted by the 
Montana Board of Health and Environmental Sciences (MBHES) on September 
16, 1994. These rules include regulations regarding emergency 
procedure, paving of roads, driveways, and parking lots, street 
sweeping, National standards of performance for new stationary sources 
(NSPS), National Emission Standards for Hazardous Air Pollutants 
(NESHAPs), and solid fuel burning devices. Further, this submittal 
satisfies the one remaining commitment made by the State in a previous 
PM10 SIP submittal.

DATES: This final rule is effective on October 30, 1995 unless adverse 
comments are received by September 29, 1995. If the effective date is 
delayed, timely notice will be published in the Federal Register.

ADDRESSES: Copies of the State's submittal and other information are 
available for inspection during normal business hours at the following 
locations:
    Air Programs Branch, Environmental Protection Agency, Region VIII, 
999 18th Street, suite 500, Denver, Colorado 80202-2405; Montana 
Department of Health and Environmental Sciences, Air Quality Division, 
Cogswell Building, Helena, Montana 59620-0901; and The Air and 
Radiation Docket and Information Center, 401 M Street SW., Washington, 
DC 20460.

FOR FURTHER INFORMATION CONTACT: Amy Platt, 8ART-AP, Environmental 
Protection Agency, Region VIII, (303) 293-1769.

SUPPLEMENTARY INFORMATION:

I. Background

    The Missoula, Montana area was designated nonattainment for 
PM10 and classified as moderate under Sections 107(d)(4)(B) and 
188(a) of the Clean Air Act, upon enactment of the Clean Air Act 
Amendments of 1990.1 See 56 FR 56694 (Nov. 6, 1991); 40 CFR 81.327 
(Missoula and vicinity). The air quality planning requirements for 
moderate PM10 nonattainment areas are set out in Subparts 1 and 4 
of Part D, Title I of the Act.2 The EPA has issued a ``General 
Preamble'' describing EPA's preliminary views on how EPA intends to 
review SIPs and SIP revisions submitted under Title I of the Act, 
including those State submittals containing moderate PM10 
nonattainment area SIP requirements [see generally 57 FR 13498 (April 
16, 1992) and 57 FR 18070 (April 28, 1992)). Because EPA is describing 
its interpretations here only in broad terms, the reader should refer 
to the General Preamble for a more detailed discussion of the 
interpretations of Title I advanced in this action and the supporting 
rationale.

    \1\ The 1990 Amendments to the Clean Air Act made significant 
changes to the Act. See Pub. L. No. 101-549, 104 Stat. 2399. 
References herein are to the Clean Air Act, as amended (``the 
Act''). The Clean Air Act is codified, as amended, in the U.S. Code 
at 42 U.S.C. Sections 7401, et seq.
    \2\ Subpart 1 contains provisions applicable to nonattainment 
areas generally and Subpart 4 contains provisions specifically 
applicable to PM10 nonattainment areas. At times, Subpart 1 and 
Subpart 4 overlap or conflict. EPA has attempted to clarify the 
relationship among these provisions in the ``General Preamble'' and, 
as appropriate, in today's notice and supporting information.
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    Those States containing initial moderate PM10 nonattainment 
areas such as Missoula were required to submit, among other things, 
several provisions by November 15, 1991. These provisions are described 
in EPA's final rulemaking on the Missoula moderate PM10 
nonattainment area SIP (59 FR 2537-2540, January 18, 1994).
    In a letter dated August 20, 1991, the Governor of Montana 
submitted to EPA the Missoula City-County Air Pollution 

[[Page 45052]]
Control Program as a revision to the Montana SIP.
    EPA's review identified numerous deficiencies, including 
inconsistencies with the State regulations, as well as deficiencies 
similar to those EPA identified in the State regulations. In a December 
4, 1991 letter from the EPA Region VIII Administrator to the Governor 
of Montana, the deficiencies in the Missoula regulations were outlined 
in detail (this letter is available for public inspection at the EPA 
Region VIII address listed at the beginning of this notice). The 
problem areas included rules involving emergency procedures, 
permitting, open burning, wood-waste burners, NSPS, NESHAPs, and 
variances.
    To address EPA's concerns, the State took commitments through the 
public hearing process on November 23, 1992 and submitted the 
commitments to EPA in a letter dated November 30, 1992, as additional 
tasks to be performed to correct the deficiencies in the Missoula and 
statewide SIP. Montana requested that EPA consider the August 20, 1991 
submittal concurrent with its June 4, 1992 PM10 SIP submittal and 
the conditions outlined in the State's commitments.
    As a result, EPA approved a large portion of the Missoula City-
County Air Pollution Control Program with its approval of the Missoula 
moderate PM10 nonattainment area SIP on January 18, 1994 (59 FR 
2537-2540). In the January 18, 1994 rulemaking, EPA delayed action on 
the regulations related to the Governor's commitments.
    In a March 2, 1994 submittal, the State satisfied several of its 
November 30, 1992 commitments related to the Missoula City-County Air 
Pollution Control Program. Accordingly, EPA approved the related 
regulations on December 13, 1994 (59 FR 64133-64139). However, one of 
the November 30, 1992 commitments was still outstanding. That 
commitment addressed Missoula NSPS and NESHAP regulations.

II. This Action

    Section 110(k) of the Act sets out provisions governing EPA's 
review of SIP submittals (see 57 FR 13565-13566). The Governor of 
Montana submitted revisions to the SIP for Missoula with a letter dated 
March 3, 1995. The revisions amend several of the Missoula City-County 
Air Pollution Control Program regulations, including the regulations 
related to NSPS and NESHAPs.

A. Analysis of State Submission

    The Act requires States to observe certain procedural requirements 
in developing implementation plans and plan revisions for submission to 
EPA. Section 110(a)(2) of the Act provides that each implementation 
plan submitted by a State must be adopted after reasonable notice and 
public hearing.3 Section 110(l) of the Act similarly provides that 
each revision to an implementation plan submitted by a State under the 
Act must be adopted by such State after reasonable notice and public 
hearing.

    \3\ Also Section 172(c)(7) of the Act requires that plan 
provisions for nonattainment areas meet the applicable provisions of 
Section 110(a)(2).
    EPA also must determine whether a submittal is complete and 
therefore warrants further EPA review and action (see Section 110(k)(1) 
and 57 FR 13565). The EPA's completeness criteria for SIP submittals 
are set out at 40 CFR Part 51, Appendix V. The EPA attempts to make 
completeness determinations within 60 days of receiving a submission. 
However, a submittal is deemed complete by operation of law if a 
completeness determination is not made by EPA six months after receipt 
of the submission.
    To entertain public comment, the State of Montana, after providing 
adequate notice, held a public hearing for the local air pollution 
control program revisions on September 16, 1994. Following the public 
hearing, the local air pollution control program revisions were adopted 
by the State.
    The local air pollution control program revisions were submitted as 
a SIP revision by the Governor with a letter dated March 3, 1995. The 
SIP revision was reviewed by EPA to determine completeness in 
accordance with the completeness criteria set out at 40 CFR Part 51, 
Appendix V. The submittal was found to be complete and a letter dated 
April 27, 1995 was forwarded to the Governor indicating the 
completeness of the submittals and the next steps to be taken in the 
review process.

B. Revisions to the Local Regulations

    Four public hearings were held at the local level in December 1993, 
and March, May, and July 1994. The Missoula City-County Air Pollution 
Control Board adopted the changes to the regulations, and, finally, all 
changes were approved at a joint public hearing by the City Council and 
County Commissioners on July 25, 1994. At its September 16, 1994 MBHES 
public hearing, the Board adopted the local regulation revisions.
    Specifically, the revisions are as follows:
    1. Chapter XVI was amended to more clearly indicate that upon 
approval by the Missoula City Council and Board of County 
Commissioners, changes to the local air pollution rules will be 
forwarded to the MBHES for final approval. Such amendments and 
revisions become effective upon approval by the MBHES.
    2. Chapter IX, Subchapter 4, Rule 401 was amended to lower the 
level at which PM10 air pollution alerts are called. The level was 
changed from 100 g/m3 to 80 g/m3.
    3. Chapter IX, Subchapter 14, Rule 1401 was amended to include new 
sections which address requirements for the paving of new public roads, 
private roads, private driveways, and parking lots in the Air 
Stagnation Zone. Such projects must apply for a road construction 
permit and provide a plan which includes, among other things, detailed 
information regarding the measurements of the proposed project, 
thickness of the pavement that shall be used on the proposed 
construction, a description of the intended uses of the project, 
including the estimated number and type of vehicles using the road, 
driveway, or parking lot, and a description of adjoining exterior roads 
(e.g., paved, unpaved, public, private). After permit approval, 
requirements are specified for the completion of paving and maintenance 
of new public roads and parking lots and private (including commercial 
and industrial) roads, driveways, and parking lots. A further amendment 
incorporates existing city street sweeping ordinances into the air 
pollution control program.
    4. Chapter IX, Subchapter 14, Rules 1423 and 1424 were amended to 
incorporate by reference the federal NSPS and NESHAPs rules as of July 
1, 1992. These revisions satisfy the State's one remaining November 30, 
1992 commitment included with the original moderate PM10 
nonattainment area SIP for Missoula. That commitment was as follows: 
``Missoula shall revise the Missoula NSPS and NESHAP regulations to 
incorporate all federal requirements promulgated through July 1, 
1992.''
    5. Chapter IX, Subchapter 14, Rule 1428 was amended to require all 
new installations of solid fuel burning devices (either in new 
construction or in existing residences) to meet an emission rate of 1.0 
gram per hour or less. In addition, uncertified woodstoves must be 
replaced or removed upon the sale of a home or other title transfer. 
Further, fines have been increased from $20 to $50 for the first 
violation, $50 to $200 

[[Page 45053]]
for the second violation, and $100 to $500 for third and subsequent 
violations.
    The revisions outlined above are consistent with Federal 
requirements, and therefore, are approvable. The revisions to rules 
401, 1401, and 1428 are more stringent than the versions used in the 
attainment and maintenance demonstrations for the Missoula moderate 
PM10 nonattainment area SIP that EPA approved on January 18, 1994 
(59 FR 2537). If the State wishes to receive credit for the PM10 
emissions reductions in the Missoula moderate nonattainment area that 
are achieved through these more stringent requirements, a revised 
attainment and maintenance demonstration for the Missoula PM10 SIP 
must be submitted to EPA for consideration. However, the State has 
indicated that it does not wish to claim credit for these measures at 
this time.

C. Enforceability Issues

    All measures and other elements in the SIP must be enforceable by 
the State and EPA (see Sections 172(c)(6), 110(a)(2)(A) and 57 FR 
13556). The EPA criteria addressing the enforceability of SIPs and SIP 
revisions were stated in a September 23, 1987 memorandum (with 
attachments) from J. Craig Potter, Assistant Administrator for Air and 
Radiation, et al. (see 57 FR 13541). State implementation plan 
provisions also must contain a program to provide for enforcement of 
control measures and other elements in the SIP [see Section 
110(a)(2)(C)].
    The Missoula air pollution control regulations, as included in the 
SIP, are legally enforceable by the Missoula City-County Health 
Department (MCCHD). There are civil penalties, which increase with each 
violation, for noncompliance with the solid fuel burning device 
regulation. Violation of any other provision, regulation or rule 
enforced under the program results in a criminal offense punishable by 
a fine.
    The Missoula City-County Air Pollution Control Program regulations 
are also enforceable by the MDHES, if the MCCHD fails to administer the 
program. Since the program has been approved by the MBHES in accordance 
with Section 75-2-301 of the Montana Clean Air Act and effectuated by a 
MBHES order, and since the MDHES can enforce MBHES orders, the MDHES 
has independent enforcement powers. Enforcement provisions are found in 
the Clean Air Act of Montana, Sections 75-2-401-429, Montana Code 
Annotated.
    If a State relies on a local government for the implementation of 
any plan provision, then, according to Section 110(a)(2)(E)(iii) of the 
Act, the State must provide necessary assurances that the State has 
responsibility for ensuring adequate implementation of such plan 
provision. A State would have responsibility to ensure adequate 
implementation if, for example, the State has the authority and 
resources to implement the provision when the local entity has failed 
to do so.
    The Missoula City-County Air Pollution Control Program was 
established in accordance with the requirements of Section 75-2-301 of 
the Montana Clean Air Act, as amended (1991). A revised version of the 
air pollution control regulations was approved by the Missoula City-
County Air Pollution Control Board on April 24, 1991, and on June 28, 
1991 the MBHES issued a board order approving these regulations. A 
stipulation between the MDHES and the Missoula City-County Air 
Pollution Control Board that delineates responsibilities and 
authorities between the MDHES and the local authorities was signed 
April 29, 1991. On March 20, 1992, the MBHES issued a board order 
approving revisions to the Missoula City-County Air Pollution Control 
Program. The April 29, 1991 stipulation, the June 28, 1991 Board order, 
and the March 20, 1992 Board order were incorporated into the SIP on 
January 18, 1994 (59 FR 2540). A November 19, 1993 MBHES Board order 
approving further revisions to the Missoula City-County regulations was 
incorporated into the SIP on December 13, 1994 (59 FR 64133).
    On September 16, 1994, the MBHES issued a Board order approving 
additional revisions to the Missoula City-County regulations. These 
regulations and the September 16, 1994 Board order were submitted to 
EPA as a modification to the Montana SIP.
    The Missoula City-County rules are in effect now. The MCCHD has 
adequate personnel and funding to support effective enforcement of the 
rules. The State of Montana has a program that will ensure that the 
Missoula City-County regulations are adequately enforced. EPA believes 
that the State's and Missoula's existing air enforcement program will 
be adequate.

III. Final Action

    EPA is approving Montana's SIP revisions, submitted by the Governor 
with a letter dated March 3, 1995, for the Missoula moderate PM10 
nonattainment area. This submittal revised several Missoula City-County 
Air Pollution Control Program regulations. Specifically, EPA is 
approving the following revised portions of Chapter IX, Regulations, 
Standards, & Permits: (1) Subchapter 4, Rule 401 regarding emergency 
procedures; (2) Subchapter 14, Rules 1401, regarding the paving of 
roads, driveways, and parking lots, and 1428, regarding solid fuel 
burning devices.
    The March 3, 1995 submittal also satisfied the one remaining 
commitment made by the Governor of Montana to EPA in a letter dated 
November 30, 1992. Due to the satisfaction of that commitment, EPA can 
now approve Rules 1423 (NSPS) and 1424 (NESHAPs) of Subchapter 14, 
Chapter IX.
    EPA also approves minor revisions to previously approved Chapter 
XVI, Amendments and Revisions.
    EPA is publishing this action without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in a separate document in this Federal 
Register publication, EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed. Under the procedures 
established in the May 10, 1994 Federal Register (59 FR 24054), this 
action will be effective October 30, 1995 unless, by September 29, 
1995, adverse or critical comments are received.
    If such comments are received, this action will be withdrawn before 
the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will then be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. EPA will not institute a second comment period on this 
action. Any parties interested in commenting on this action should do 
so at this time. If no such comments are received, the public is 
advised that this action will be effective on October 30, 1995.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to a SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
enterprises, and government entities with jurisdiction over populations 
of less than 50,000. 

[[Page 45054]]

    Approvals of SIP submittals under section 110 and subchapter I, 
part D of the Clean Air Act do not create any new requirements, but 
simply approve requirements that the State is already imposing. 
Therefore, because the Federal SIP-approval does not impose any new 
requirements, I certify that it does not have a significant impact on 
small entities affected. Moreover, due to the nature of the Federal-
state relationship under the Clean Air Act, preparation of a regulatory 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The Clean Air Act forbids EPA to base 
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. 
E.P.A., 427 U.S. 246, 256-66 (1976); 42 U.S.C. 7410(a)(2).
    Under Sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, EPA must undertake various actions in association with proposed 
or final rules that include a Federal mandate that may result in 
estimated costs of $100 million or more to the private sector, or to 
State, local, or tribal governments in the aggregate.
    Through submission of this state implementation plan or plan 
revision, the State and any affected local or tribal governments have 
elected to adopt the program provided for under Section 110 of the 
Clean Air Act. These rules may bind State, local and tribal governments 
to perform certain duties. The rules being approved by this action will 
impose no new requirements since such sources are already subject to 
these regulations under State law. Accordingly, no additional costs to 
State, local, or tribal governments, or to the private sector, result 
from this action. EPA has also determined that this final action does 
not include a mandate that may result in estimated costs of $100 
million or more to State, local, or tribal governments in the aggregate 
or to the private sector.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by October 30, 1995. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review must be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements (see section 307(b)(2)).
    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.
List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

    Dated: July 28, 1995.
Kerrigan Clough,
Acting Regional Administrator.

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

PART 52--[AMENDED]

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

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

Subpart BB--Montana

    2. Section 52.1370 is amended by adding paragraph (c)(41) to read 
as follows:


Sec. 52.1370  Identification of plan.

* * * * *
    (c) * * *
    (41) The Governor of Montana submitted revisions to the Missoula 
City-County Air Pollution Control Program in a letter dated March 3, 
1995. In addition, the March 3, 1995 submittal satisfies the one 
remaining commitment made by the State in its original PM10 
moderate nonattainment area SIP.
    (i) Incorporation by reference.
    (A) Board order issued on September 16, 1994 by the Montana Board 
of Health and Environmental Sciences approving the amendments to 
Missoula City-County Air Pollution Control Program Chapters IX and XVI 
regarding, among other things, emergency procedures, paving of private 
roads, driveways, and parking lots, National standards of performance 
for new stationary sources, National Emission Standards for Hazardous 
Air Pollutants, and solid fuel burning devices.
    (B) Missoula City-County Rule 401, Missoula County Air Stagnation 
Plan, effective September 16, 1994.
    (C) Missoula City-County Rule 1401, Prevent Particulate Matter from 
Being Airborne, effective September 16, 1994.
    (D) Missoula City-County Rule 1423, Standard of Performance for New 
Stationary Sources, effective September 16, 1994.
    (E) Missoula City-County Rule 1424, Emission Standards for 
Hazardous Air Pollutants, effective September 16, 1994.
    (F) Missoula City-County Rule 1428, Solid Fuel Burning Devices, 
effective September 16, 1994.
    (G) Missoula City-County Air Pollution Control Program Chapter XVI, 
Amendments and Revisions, effective September 16, 1994.

[FR Doc. 95-21468 Filed 8-29-95; 8:45 am]
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