[Federal Register Volume 61, Number 206 (Wednesday, October 23, 1996)]
[Rules and Regulations]
[Pages 54946-54948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27006]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[MT001-0001a; FRL-5635-6]


Clean Air Act Approval and Promulgation of State Implementation 
Plan for Montana; Revisions to the Montana Air Pollution Control 
Program

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 Governor of Montana on May 22, 1995. The revisions 
being approved in this document include; changes to the State's open 
burning rules which, among other things, address deficiencies and add 
new rules for the open burning of Christmas tree waste and open burning 
for commercial film or video productions; and changes to numerous State 
regulations to make minor administrative amendments and to update 
incorporation by reference citations. EPA is approving these revisions 
because they are consistent with the Clean Air Act (Act).

DATES: This action is effective on December 23, 1996 unless adverse 
comments are received by November 22, 1996. 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 80202-2405; Montana 
Department of Environmental Quality, 1520 East 6th Avenue, P.O. Box 
200901, Helena, Montana 59620-0901; and The Air and Radiation Docket 
and Information Center, 401 M Street, SW., Washington, DC 20460.

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

SUPPLEMENTARY INFORMATION: On May 22, 1995, the Governor of Montana 
submitted two SIP submittals which are being acted on in this document. 
One submittal included changes to the State's open burning rules. The 
second submittal included changes to numerous State regulations to make 
minor administrative amendments. This document evaluates the State's 
submittals for conformity with the corresponding Federal regulations 
and the requirements of the Act.

I. Procedural Analysis of the State's Submissions

    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. 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.
    The 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, April 16, 1992). 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 under section 110(k)(a)(B) if a completeness 
determination is not made by EPA

[[Page 54947]]

within six months after receipt of the submission.
    The State of Montana held public hearings on May 20, 1994 for the 
revisions to the open burning rules and on September 16, 1994 for the 
other revisions to entertain public comment on the SIP revisions, and 
the rule revisions were subsequently adopted at the respective public 
hearings by the State. These rule revisions were formally submitted to 
EPA for approval in the SIP as two separate SIP submittals on May 22, 
1995.
    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 a letter dated July 27, 1995 was forwarded to the Governor 
indicating the completeness of the submittals and the next steps to be 
taken in the processing of the SIP submittals.

II. Evaluation of the State's Submittals

A. Revisions to the Open Burning Rules

    Numerous revisions were made to the State's open burning provisions 
in rules 16.8.1301-1310 of the Administrative Rules of Montana (ARM). 
Revisions were made to address EPA's January 2, 1992 disapproval of the 
State's previous revisions to its open burning rules (see 57 FR 23-24) 
and to add new provisions addressing open burning of Christmas tree 
waste and open burning for commercial film or video productions. In 
addition, the State made other revisions to its open burning rules to 
add public participation requirements for major open burning permits, 
to add more specific requirements for open burning for firefighter 
training, to add requirements for the issuance of conditional open 
burning permits, and to extend the essential agricultural burning 
period to be the same as prescribed wildland open burning periods and 
add new provisions for these types of open burning.
    On January 2, 1992, EPA disapproved the State's previous SIP 
revision of its open burning rules because the State had relaxed its 
rules by allowing the open burning of creosote-treated railroad ties 
(which were previously prohibited from being open-burned), and the 
State did not adequately demonstrate that the SIP relaxation would not 
adversely impact attainment and/or maintenance of the particulate 
matter national ambient air quality standards (NAAQS). In the State's 
May 22, 1995 SIP revision, the State reinstated the prohibition on open 
burning of creosote-treated railroad ties, thus addressing EPA's 
January 2, 1992 disapproval.
    EPA's review of the new ARM 16.8.1309 and 16.8.1310, which allow 
open burning of Christmas tree waste and open burning for commercial 
film or video productions, found these rules to be consistent with 
corresponding Federal requirements. The State's rules will only allow 
these types of open burning if such burning will not endanger public 
health or welfare or cause or contribute to a violation of the NAAQS.
    In a May 18, 1994 letter commenting on these regulatory changes, 
EPA requested that the State provide documentation that the extension 
of the essential agricultural open burning season will not adversely 
impact Montana's PM-10 nonattainment areas. The State's response 
indicated that the majority of essential agricultural open burning ``is 
done in areas sufficiently removed from the PM-10 nonattainment areas'' 
and that Montana's fall smoke management program, which is also used to 
regulated prescribed wildland open burning, will minimize the impact 
from smoke during the fall season from essential agricultural open 
burning. EPA concurs with the State's response and believes the State's 
smoke management plan will help to ensure the NAAQS are met.
    EPA has reviewed the other revisions to the State's open burning 
rules and believes that the revisions are consistent with the 
requirements of the Act. Consequently, EPA is approving the State's 
revisions to its open burning regulations in ARM 16.8.1301-1310 
submitted on May 22, 1995.

B. Other Minor Administrative Regulatory Revisions

    The State's second May 22, 1995 SIP submittal being acted on in 
this document contained minor administrative revisions and updated the 
incorporation by reference citations for both Federal regulations and 
State procedures. EPA has reviewed the revisions and found the 
revisions to be consistent with the requirements of the Act. Therefore, 
EPA is approving the revisions to ARM 16.8.708, 16.8.946, 16.8.1120, 
16.8.1429, 16.8.1702, 16.8.1802, and 16.8.2003 submitted on May 22, 
1995.

III. Final Action

    EPA is approving the revisions to the Montana SIP submitted by the 
State on May 22, 1995, which affect the State's open burning rules and 
make other minor administrative changes. Specifically, EPA is approving 
revisions to the following sections of the ARM: 16.8.1301-1310, as in 
effect on September 9, 1994, and 16.8.708, 16.8.946, 16.8.1120, 
16.8.1429, 16.8.1702, 16.8.1802, and 16.8.2003, as in effect on October 
28, 1994.
    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 December 23, 1996 unless, by November 22, 
1996, 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 November 22, 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

[[Page 54948]]

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 
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 December 23, 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: September 26, 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)(43) to read 
as follows:


Sec. 52.1370  Identification of plan.

* * * * *
    (c) * * *
    (43) On May 22, 1995, the Governor of Montana submitted revisions 
to the plan, which included revisions to the State's open burning 
regulation and other minor administrative revisions.
    (i) Incorporation by reference.
    (A) Revisions to the Administrative Rules of Montana (ARM), 
16.8.1301-1310, effective September 9, 1994; and
    (B) Revisions to the ARM, 16.8.708, 16.8.946, 16.8.1120, 16.8.1429, 
16.8.1702, 16.8.1802, and 16.8.2003, effective October 28, 1994.
* * * * *
[FR Doc. 96-27006 Filed 10-22-96; 8:45 am]
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