[Federal Register Volume 61, Number 190 (Monday, September 30, 1996)]
[Rules and Regulations]
[Pages 51014-51018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24532]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MT26-7-6874a; FRL-5609-8]


Clean Air Act Approval and Promulgation of State Implementation 
Plan for Montana; Libby Moderate PM10 Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: In this action, EPA approves the State implementation plan 
(SIP) revisions submitted by the State of Montana on March 15, 1995 to 
satisfy the Federal Clean Air Act requirement to submit contingency 
measures for the Libby moderate PM10 (particulate matter with an 
aerodynamic diameter less than or equal to a nominal 10 micrometers) 
nonattainment area. The March 15, 1995 submittal also recodified the 
Lincoln County regulations. In addition, EPA is approving a SIP 
revision submitted by the Governor of Montana on May 13,

[[Page 51015]]

1996, which included revisions to the Lincoln County regulations 
regarding open burning and other minor administrative amendments. EPA 
is approving these SIP revisions because they are consistent with the 
applicable requirements of the Clean Air Act, as amended (Act), and EPA 
guidance.

DATES: This action is effective on November 29, 1996 unless notice is 
received by October 30, 1996 that someone wishes to submit adverse or 
critical comments. If the effective date is delayed, timely notice will 
be published in the Federal Register.

ADDRESSES: Copies of the State's submittal and other information are 
available for inspection during normal business hours at the following 
locations: Air Program, Environmental Protection Agency, Region VIII, 
999 18th Street, Suite 500, Denver, Colorado 80202-2466; Montana 
Department of Environmental Quality, Air Quality Division, 836 Front 
Street, Helena, Montana 59620-5520; and The Air and Radiation Docket 
and Information Center, 401 M Street, SW, Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Vicki Stamper, 8P2-A, U.S. 
Environmental Protection Agency, Region VIII, 999 18th Street, Suite 
500, Denver, Colorado 80202-2466, (303) 312-6445.

SUPPLEMENTARY INFORMATION:

I. Background

    The Libby, Montana area was designated nonattainment for PM10 
and classified as moderate under sections 107(d)(4)(B) and 188(a) of 
the Act, upon enactment of the Clean Air Act Amendments of 1990. See 56 
FR 56694 (Nov. 6, 1991); 40 CFR 81.327 (specifying designations for 
Montana). Those States containing initial moderate PM10 
nonattainment areas were required to submit several provisions by 
November 15, 1991. These provisions, including an attainment 
demonstration (or demonstration that timely attainment is 
impracticable), are described in EPA's final rulemaking for the Libby 
moderate PM10 nonattainment area SIP (59 FR 44627, August 30, 
1994). The Libby PM10 control measures targeted re-entrained road 
dust, residential wood burning, prescribed burning, and industrial 
sources for reductions in PM10 emissions to demonstrate attainment 
of the PM10 national ambient air quality standards (NAAQS). See 
the August 30, 1994 notice of final rulemaking and associated Technical 
Support Document (TSD) for further details.
    Such States were also required to submit contingency measures by 
November 15, 1993 (see 57 FR 13543). The Governor of Montana submitted 
revisions to the SIP for Libby on March 15, 1995, to address this 
requirement.
    In addition, on May 13, 1996, the Governor of Montana submitted 
revisions to the Lincoln County open burning rules and other minor 
revisions for approval into the SIP.

II. This Action

    Section 110(k) of the Act sets out provisions governing EPA's 
review of SIP submittals (see 57 FR 13565-13566).

A. Analysis Requirements for State Submissions

1. Procedural Background
    The Act requires States to observe certain procedural requirements 
in developing implementation plans and plan revisions for submission to 
EPA. [See sections 110(a)(2) and 110(l) of the Act.] EPA also must 
determine whether a submittal is complete and therefore warrants 
further EPA review and action [see section 110(k)(1) of the Act and 57 
FR 13565]. The EPA's completeness criteria for SIP submittals are set 
out at 40 CFR part 51, appendix V.
    To entertain public comment, the State of Montana, after providing 
adequate notice, held public hearings on December 16, 1994 to consider 
the Libby PM10 contingency measures and on February 1, 1996 to 
consider the revisions to the Lincoln County open burning rules and 
other minor revisions. Following the hearings, the Montana Board of 
Health and Environmental Sciences adopted the Libby PM10 
contingency measures and the revisions to the Lincoln County open 
burning rules. The SIP revisions were formally submitted to EPA for 
approval on March 15, 1995 and on May 13, 1996, respectively.
    The SIP revisions were reviewed by EPA to determine completeness 
shortly after their submittal, in accordance with the completeness 
criteria referenced above. The submittals were found to be complete, 
and letters dated April 21, 1995 and July 3, 1996 were forwarded to the 
Governor indicating the completeness of the submittals and the next 
steps to be taken.
2. PM10 Contingency Measures
    The Clean Air Act requires States containing PM10 
nonattainment areas to adopt contingency measures that will take effect 
without further action by the State or EPA upon a determination by EPA 
that an area failed to make reasonable further progress (RFP) or to 
timely attain the applicable NAAQS, as described in section 172(c)(9). 
See generally 57 FR 13510-13512 and 13543-13544. Pursuant to section 
172(b), the Administrator has established a schedule providing that 
States containing initial moderate PM10 nonattainment areas shall 
submit SIP revisions containing contingency measures no later than 
November 15, 1993. (See 57 FR 13543, n. 3.)
    The General Preamble further explains that contingency measures for 
PM10 should consist of other available control measures, beyond 
those necessary to meet the core moderate area control requirement to 
implement reasonably available control measures (see sections 172(c)(1) 
and 189(a)(1)(C) of the Act). Based on the statutory structure, EPA 
believes that contingency measures must, at a minimum, provide for 
continued progress toward the attainment goal during the interim period 
between the determination that the SIP has failed to achieve RFP or 
provide for timely attainment of the NAAQS and additional formal air 
quality planning following the determination (57 FR 13511).
    Section 172(c)(9) of the Act specifies that contingency measures 
shall ``take effect * * * without further action by the State or the 
[EPA] Administrator.'' EPA has interpreted this requirement (in the 
General Preamble at 57 FR 13512) to mean that no further rulemaking 
activities by the State or EPA would be needed to implement the 
contingency measures. In general, EPA expects all actions needed to 
effect full implementation of the measures to occur within 60 days 
after EPA notifies the State of its failure to attain the standard or 
make RFP. EPA recognizes that certain actions, such as notification of 
sources, modification of permits, etc., may be needed before some 
measures could be implemented. However, States must show that their 
contingency measures can be implemented with minimal further 
administrative action on their part and with no additional rulemaking 
action such as public hearing or legislative review.
    The provisions for selection and implementation of contingency 
measures for the Libby moderate PM10 nonattainment are in Section 
75.1.103 of the Lincoln County Air Pollution Control Program. The 
County and State have targeted three sources of emissions for potential 
implementation of contingency measures: residential wood combustion, 
re-entrained road dust, and industry emissions. The County rule 
provides that, within 60 days of notification by the State or EPA that 
the Libby moderate PM10 nonattainment

[[Page 51016]]

area has failed to attain the PM10 NAAQS or to make RFP, one or 
more of three measures will be implemented depending on which source(s) 
of emissions is determined to be the significant contributor(s) to the 
problem. The County rule further provides that, if initially no source 
is determined to be the significant contributor, a comprehensive 
review, including chemical and microscopic analysis of exposed 
PM10 filters, will be conducted by the County and the State to 
determine the significant contributor. In the meantime, the County rule 
requires that at least one of the three available contingency measures 
be implemented on an interim basis. This interim contingency measure 
will remain in effect until the significant source is identified and a 
permanent contingency measure has been implemented.
    The specific contingency measures adopted for the Libby moderate 
PM10 nonattainment area and their projected effectiveness are as 
follows:
a. Residential Wood Burning Contingency Measure
    Section 75.1.206(3) of the local regulations contains the 
residential wood burning contingency measure. The County rule provides 
for early implementation of this contingency measure if needed, which 
is acceptable. If this measure is implemented, the County regulation 
provides that:
    No solid fuel burning device shall be operated within the Libby Air 
Pollution Control District between October 1 and March 31 unless it has 
been permitted by the [Lincoln County Health] Department as a Class I, 
Class II, Low Income Exemption or Sole Source device or is operating on 
a validated Temporary Emergency Heating Authorization Permit.
    This contingency measure goes beyond the existing control measure, 
which limits the use of these types of solid fuel burning devices only 
when an alert is called by the County (i.e., when PM10 levels 
exceed 100 g/m\3\ and conditions indicate that PM10 
levels will remain above 100 g/m\3\).
    If the residential wood burning contingency measure is implemented 
in the Libby nonattainment area, the State estimates that the control 
efficiency of the wood burning measures will be 57% in the 24-hour 
attainment demonstration (an increase of 5% over the control efficiency 
of the residential wood burning measures in the original SIP attainment 
demonstration). The State also estimates that the annual control 
efficiency of the wood burning measures would be 54% (an increase of 
20% over the annual control efficiency in the original SIP). Total 
reduction from the contingency measure is calculated to be 256 pounds 
of PM10 reduced per day more than without the contingency measure, 
and 19.4 tons more per year.
b. Re-entrained Road Dust Contingency Measure
    Section 75.1.303(3) of the County regulations contains the re-
entrained road dust contingency measure. The County rule provides for 
early implementation of this contingency measure if needed, which is 
acceptable. If this measure is implemented, the following changes to 
the existing road dust control plan (which has been approved as part of 
the Libby PM10 SIP) become effective:
    (1) The Area of Road Sanding and Sweeping will be extended to the 
boundaries of the Air Pollution Control District. Thus, the prioritized 
street sweeping and flushing schedule will be expanded to apply to all 
public roadways within the Road Sanding and Sweeping District;
    (2) The use of liquid de-icing agents (which was not previously 
required) will be mandatory on all roads and parking lots within the 
expanded Road Sanding and Sweeping District. Use of sanding materials 
will be prohibited except in emergency situations; and
    (3) Any sanding materials used in an emergency situation must meet 
the specifications identified in Section 75.1.303(1) of the County 
regulation.

The City of Libby and the Department of Transportation have installed 
tanks and converted equipment for the use of a liquid de-icer instead 
of sanding material.
    If the re-entrained road dust contingency measure is implemented, 
the State estimates that the control efficiency of the re-entrained 
road dust measures will be 90% in the 24-hour attainment demonstration 
(an increase of 42% over the control efficiency of the re-entrained 
road dust measures in the original SIP attainment demonstration). The 
State also estimates that the annual control efficiency of the re-
entrained road dust contingency measure will be 71% (an increase of 33% 
over the original SIP attainment demonstration). Total reduction from 
the contingency measure is calculated to be 7421 pounds of PM10 
per day and 403 tons of PM10 per year than without the contingency 
measure.
c. Stimson Lumber Company Contingency Measure
    Section 75.1.103(2)(c) of the County regulation states that, if 
industrial facility emissions are determined to be one of the 
significant contributors to PM10 exceedances in the Libby 
PM10 nonattainment area, contingency measures reducing the 
industrial facility's emissions shall be initiated by the State. 
Implementation of this contingency measure was retained by the State 
because the authority to regulate sources governed by the Montana Clean 
Air Act (MCA), Title 75, Chapter 2, is not delegable to the local 
level. The requirements of this contingency measure are contained in 
the December 16, 1994 Board Order and Stipulation between Stimson 
Lumber Company and the State. The contingency measure consists of 
additional controls on fugitive dust sources.
    The existing fugitive dust requirements in the permit include: 
chemical dust suppressant on the major haul routes to maintain 
compliance with the 20% opacity limitation (at least annually), and 
water sprays used as necessary to control dust emissions on active 
areas of the log yard. The contingency measures in the stipulation add 
the following requirements:
    (1) The facility entrance and Plywood Plant access road shall be 
surfaced with either asphalt, concrete, or chip seal from Highway 2 to 
the Plywood Plant. Sweeping and flushing shall be conducted, as 
necessary, to maintain compliance with a 5% opacity limitation but not 
less than twice annually, with one application during the months of 
April-June and one application during the months of September-November.
    (2) The chip sealed portions of the Plywood Plant access road shall 
consist of a double layer of oil base and chips which shall be watered, 
as necessary, to maintain compliance with a 5% opacity limitation. 
These portions shall also be maintained to avoid deterioration by 
evaluating the chip seal for cracking at a minimum of every 2 years, 
and by applying a crack sealer (e.g., rubberized asphalt) as needed. A 
thorough evaluation and assessment of the need to reseal the roadway 
shall be conducted no less than every 5 years.
    (3) Chemical dust suppressant shall be applied to all remaining 
active unpaved areas within the facility as necessary to maintain 
compliance with the 5% opacity limitation, but not less than twice 
annually with one application during the months of April-June and one 
application during the months of September-November.
    (4) The facility shall maintain a written record of all implemented 
contingency measures, which shall be made available to the Montana

[[Page 51017]]

Department of Environmental Quality upon request.
    The stipulation provides that this contingency plan will become 
effective within 60 days after notification to the company and without 
further negotiation.
    The State's March 15, 1995 SIP submittal did not contain an 
analysis of the effectiveness of the Stimson Lumber Company contingency 
measures. While this contingency measure specifically controls fugitive 
dust emissions in the log yard area and associated roads of Stimson 
Lumber Company, the main problem the State intended to address with 
these measures was the amount of mud and dirt carried out onto the 
public roads around the Plywood Plant by vehicles leaving the facility. 
However, the amount of PM10 reductions due to a reduction in mud 
and dirt carryout from Stimson Lumber Company are not readily 
quantifiable. The State did not calculate the emissions reductions due 
to these fugitive dust contingency measures expected on the Stimson 
Lumber Company property itself because they believed the calculations 
would not accurately reflect the overall effectiveness of this 
contingency measure. EPA agrees with the State that the Stimson Lumber 
Company contingency measures will help to reduce mud and dirt carryout 
onto the public roads and, consequently, will reduce re-entrained road 
dust emissions, as well as reducing fugitive dust emissions emitted 
from the Stimson Lumber Company property. Thus, this contingency 
measure, if implemented, will provide for additional emissions 
reductions in the Libby PM10 nonattainment area.
    EPA believes the Libby contingency measures are approvable. The 
control measures implemented in the PM10 SIP are projected to 
achieve more emissions reductions than needed to demonstrate attainment 
of the PM10 NAAQS, as indicated by the State's predicted 24-hour 
attainment concentration of 135.9 g/m\3\. Since the 24-hour 
PM10 NAAQS is 150 g/m\3\, this established safety margin 
further supports the reasonableness of these contingency measures.
3. Revisions to Lincoln County's Open Burning Regulations
    The City of Libby and Lincoln County revised the open burning rules 
to address newly adopted provisions to the State's open burning rules. 
Specifically, the Lincoln County open burning rules were revised to add 
new provisions addressing open burning of Christmas tree waste, for 
commercial film or video productions, and for firefighter training. In 
addition, the County rules were revised to add additional requirements 
for the issuance of conditional open burning permits, such as providing 
public notice and opportunity for public hearing. The County also added 
a provision stating that it could only issue a conditional open burning 
permit if emissions from the burn would not endanger public health or 
cause or contribute to a violation of the NAAQS.
    The County rules were also revised to make other minor 
administrative changes to reflect the reorganization of the Montana 
Department of Environmental Quality (formerly Montana Department of 
Health and Environmental Sciences).
    EPA believes the revisions to the County's rules submitted May 13, 
1996 are consistent with the Act and will help to protect the PM10 
NAAQS in the Libby area. Therefore, EPA finds the revisions to be 
approvable.
4. 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). SIP 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)]. EPA believes the Libby 
PM10 contingency measures and the local regulations meet the SIP 
enforceability requirements. For further details, see the TSD 
accompanying this action.

III. Final Action

    EPA is approving the PM10 contingency measures and the 
recodification of the local regulations submitted for the Libby 
moderate PM10 nonattainment area by the Governor of Montana on 
March 15, 1995. This submittal adequately addressed the PM10 
contingency measure requirements for Libby. In addition, EPA is 
approving the revisions to the Lincoln County regulations submitted by 
the Governor of Montana on May 13, 1996 regarding open burning and 
other minor administrative amendments.
    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 revisions 
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 November 29, 1996 unless, by October 30, 1996, 
adverse or critical comments are received.
    If EPA receives such comments, this action will be withdrawn before 
the effective date by publishing a subsequent notice 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 November 29, 1996.
    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.

IV. Administrative Requirements

A. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

    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.
    SIP approvals 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, the

[[Page 51018]]

Administrator certifies that it does not have a significant impact on 
any small entities affected. Moreover, due to the nature of the 
Federal-state relationship under the Act, preparation of a flexibility 
analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The Act forbids EPA to base its actions 
concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 
U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under state or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives, and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

E. Petitions for Judicial Review

    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 November 29, 1996. 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)).

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: August 29, 1996.
Patricia D. Hull,
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)(44) to read 
as follows:


Sec. 52.1370  Identification of plan.

* * * * *
    (c) * *  *
    (44) The Governor of Montana submitted PM10 contingency 
measures and a recodification of the local regulations for Libby, 
Montana in a letter dated March 15, 1995. In addition, the Governor of 
Montana submitted revisions to the local open burning regulations and 
other minor administrative amendments on May 13, 1996.
    (i) Incorporation by reference.
    (A) Board order issued on December 16, 1994 by the Montana Board of 
Health and Environmental Sciences adopting stipulation of the Montana 
Department of Health and Environmental Sciences and Stimson Lumber 
Company.
    (B) Board order issued December 16, 1994 by the Montana Board of 
Health and Environmental Sciences adopting the PM10 contingency 
measures as part of the Libby air pollution control program.
    (C) Board order issued on February 1, 1996 by the Montana Board of 
Environmental Review approving amendments to the Libby Air Pollution 
Control Program.
    (D) Lincoln Board of Commissioners Resolution No. 377, signed 
September 27, 1995, and Libby City Council Ordinance No. 1507, signed 
November 20, 1995, adopting revisions to the Lincoln County Air 
Pollution Control Program, Sections 75.1.103 through 75.1.719.
    (E) Lincoln County Air Pollution Control Program, Sections 75.1.101 
through 75.1.719, effective December 21, 1995.

[FR Doc. 96-24532 Filed 9-27-96; 8:45 am]
BILLING CODE 6560-50-P