[Federal Register Volume 65, Number 1 (Monday, January 3, 2000)]
[Rules and Regulations]
[Pages 16-19]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33622]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MT-001-0016a; FRL-6506-1]


Clean Air Act Approval and Promulgation of Air Quality 
Implementation Plan Revision for Montana; Revisions to the Missoula 
County Air Quality Rules

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 with a letter dated November 14, 
1997. This submittal consists of several revisions to Missoula County 
Air Quality Control Program regulations, which were adopted by the 
Montana Board of Environmental Review (MBER) on October 31, 1997. These 
rules include regulations regarding general definitions, open burning, 
and criminal penalties. This submittal also includes revisions to 
regulations regarding national standards of performance for new 
stationary sources (NSPS) and National Emission Standards for

[[Page 17]]

Hazardous Air Pollutants (NESHAPs), which will be handled separately.

DATES: This direct final rule is effective on March 3, 2000 without 
further notice, unless EPA receives adverse comment by February 2, 
2000. If adverse comment is received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register informing 
the public that the rule will not take effect.

ADDRESSES: Mail written comments to Richard R. Long, Director, Air and 
Radiation Program, Mailcode 8P-AR, Environmental Protection Agency, 
Region VIII, 999 18th Street, Suite 500, Denver, Colorado, 80202-2405. 
Documents relevant to this action can be perused during normal business 
hours at the Air and Radiation Program, Environmental Protection 
Agency, Region VIII, 999 18th Street, Suite 500, Denver, Colorado, 
80202-2405. Copies of the incorporation by reference material are 
available at the Air and Radiation Docket and Information Center, 
Environmental Protection Agency, 401 M Street, SW, Washington, DC, 
20460. Copies of the State documents relevant to this action are 
available at the Montana Department of Environmental Quality, 1520 E. 
6th Avenue, Helena, Montana, 59620-0901.

FOR FURTHER INFORMATION CONTACT: Amy Platt, Environmental Protection 
Agency, Region VIII, (303) 312-6449.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'' is 
used it means EPA.

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. 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)).
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    \1\ The 1990 Amendments to the Clean Air Act made significant 
changes to the Act. See Public Law 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. 7401, et seq.
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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).
    EPA has approved subsequent revisions to the Missoula moderate 
PM10 SIP. On December 13, 1994 (59 FR 64133), EPA approved 
revisions to the Missoula County Air Pollution Control Program 
regulations related to, among other things, PM10 and CO 
contingency measures, inspections, emergency procedures, minor source 
construction permitting, open burning and wood waste burners. On August 
30, 1995 (60 FR 45051), EPA approved revisions to the Missoula County 
Air Pollution Control Program regulations related to emergency 
procedures; the paving of roads, driveways, and parking lots; and solid 
fuel burning devices.

II. Analysis of State Submission

A. Procedural Background

    The Act requires States to follow certain procedures in developing 
implementation plans and plan revisions for submission to EPA. Sections 
110(a)(2) and 110(l) of the Act provide that each implementation plan a 
State submits must be adopted after reasonable notice and public 
hearing.
    We also must determine whether a submittal is complete and 
therefore warrants further review and action (see section 110(k)(1) of 
the Act and 57 FR 13565). EPA's completeness criteria for SIP 
submittals can be found in 40 CFR part 51, appendix V. EPA attempts to 
determine completeness within 60 days of receiving a submission. 
However, the law considers a submittal complete if we don't determine 
completeness within six months after we receive it.
    To provide for public comment, the Montana Board of Environmental 
Review (MBER), after providing adequate notice, held a public hearing 
on October 31, 1997 to address the amendments to the Missoula County 
air quality rules. Following the public hearing, the MBER approved the 
amendments, with a minor clarification to the definition of essential 
agricultural burning.
    The Governor of Montana submitted the revisions to the Missoula 
County air quality rules to EPA with a letter dated November 14, 1997. 
The revisions were deemed complete as of May 14, 1998.

B. November 14, 1997 Revisions

    As noted above, we will handle separately the revisions in the 
November 14, 1997 submittal regarding standards of performance for new 
stationary sources and emission standards for hazardous air pollutants. 
The revisions to the Missoula County air pollution control rules to be 
addressed in this document include revisions to general definitions, 
open burning, and changes to criminal penalties which involve the 
following sections of the Missoula County Air Quality Control Program: 
Chapter IX, Regulations, Standards and Permits, Subchapter 7, General 
Provisions and Subchapter 13 Open Burning; and Chapter XII, Criminal 
Penalties.
1. Revisions to Chapter IX, Regulations, Standards, and Permits
    a. Subchapter 7, General Provisions, Rule 701--General Definitions: 
Revisions to this rule include the deletion of definitions for 
``salvage operation,'' ``trade waste,'' and ``wood-waste burners.'' 
These definitions were added to the definitions section of the Missoula 
County open burning regulations (see subchapter 13 discussed below). 
This change was made to be consistent with the Montana statewide open 
burning definitions and is approvable.
    b. Subchapter 13, Open Burning: The revisions to the open burning 
regulations were made, for the most part, to make the county rules 
consistent with state rules. Note that there are several places in the 
county rules that refer to rule 17.8.610, Major Open Burning Source 
Restrictions, of the Administrative Rules of Montana (ARM). This 
numbering is a recodification of the federally approved version of the 
ARM, in which the Major Open Burning Source Restrictions rule is 
numbered 16.8.1304. We will act on the ARM recodification at a later 
date.
    In some cases, the Missoula County rules are more stringent than 
state rules. For example, the County rules require permits year-round 
for minor open burners. In addition, the allowed special burning period 
for essential agricultural open burning is shorter than that provided 
in the State regulations.
    These revisions to Missoula County subchapter 13, Open Burning, are 
approvable.
2. Revisions to Chapter XII, Criminal Penalties
    A revision was made to this chapter to increase the fine for a 
violation of the provisions, regulations, or rules of the Missoula 
County Air Quality Control

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Program. The fine was increased from $1,000 to $10,000 per day of 
violation. This revision is approvable.

III. Final Action

    EPA is approving certain sections of Montana's SIP revision, as 
submitted by the Governor with a letter dated November 14, 1997. The 
revisions being approved involve the following rules and Chapters of 
the Missoula County Air Quality Control Program: Chapter IX, Rule 701, 
General Definitions; Chapter IX, Rules 1301-1311, regarding open 
burning; and Chapter XII, Criminal Penalties.
    In addition, the November 14, 1997 submittal included revisions to 
regulations regarding standards of performance for new stationary 
sources and emission standards for hazardous air pollutants, which are 
being handled separately.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. The State requested this action. However, in the 
``Proposed Rules'' section of today's Federal Register publication, EPA 
is publishing a separate document that will serve as the proposal to 
approve the SIP revision if adverse comments should be filed. This rule 
will be effective March 3, 2000 without further notice unless the 
Agency receives adverse comments by February 2, 2000. If the EPA 
receives adverse comments, EPA will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect. EPA will address all public comments in a subsequent final rule 
based on the proposed rule. The EPA will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
at this time.

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43225, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    This final rule will not have substantial direct effects on the 
State, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999), because it merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. Thus, the requirements of section 6 of the Executive Order do 
not apply to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

D. Executive Order 13084

    Executive Order 13084: Consultation and Coordination with Indian 
Tribal Governments. Under Executive Order 13084, EPA may not issue a 
regulation that is not required by statue, that significantly affects 
or uniquely affects the communities of Indian tribal governments, and 
that imposes substantial direct compliance costs on those communities, 
unless the Federal government provides the funds necessary to pay the 
direct compliance costs incurred by the tribal governments, or EPA 
consults with those governments. If EPA complies by consulting, 
Executive Order 13084 requires EPA to provide to the Office of 
Management and Budget, in a separately identified section of the 
preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected 
officials and other representatives of Indian tribal governments ``to 
provide meaningful and timely input in the development of regulatory 
policies on matters that significantly or uniquely affect their 
communities.'' Today's rule does not significantly or uniquely affect 
the communities of Indian tribal governments. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
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 small governmental 
jurisdictions.
    This final rule will not have a significant impact on a substantial 
number of small entities because 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 create 
any new requirements, I certify that this action will not have 
significant economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of a flexibility analysis would 
constitute Federal inquiry into the economic reasonableness of state 
action. The

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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).

F. 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 not new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of Congress and to the Comptroller General of the United 
States. EPA will submit 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 United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This rule is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

I. 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 March 3, 2000. 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 may 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, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Nitrogen dioxide, Particulate matter, and Reporting and recordkeeping 
requirements.

    Dated: November 30, 1999.
Max H. Dodson,
Acting Regional Administrator, Region VIII.

    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 et seq.

Subpart BB--Montana

    2. Section 52.1370 is amended by adding paragraph (c)(48) to read 
as follows:


Sec. 52.1370  Identification of plan.

* * * * *
    (c) * * *
    (48) The Governor of Montana submitted revisions to the Missoula 
County Air Quality Control Program with a letter dated November 14, 
1997. The revisions address general definitions, open burning, and 
criminal penalties.
    (i) Incorporation by reference.
    (A) Board order issued on October 31, 1997 by the Montana Board of 
Environmental Review approving the amendments to Missoula County Air 
Quality Control Program Chapters IX and XII regarding general 
definitions, open burning, and criminal penalties.
    (B) Missoula County Air Quality Control Program, Chapter IX, Rule 
701, General Definitions, effective October 31, 1997.
    (C) Missoula County Air Quality Control Program, Chapter IX, Rules 
1301-1311, regarding open burning, effective October 31, 1997.
    (D) Missoula County Air Quality Control Program, Chapter XII, 
Criminal Penalties, effective October 31, 1997.

[FR Doc. 99-33622 Filed 12-30-99; 8:45 am]
BILLING CODE 6560-50-P