[Federal Register Volume 65, Number 247 (Friday, December 22, 2000)]
[Rules and Regulations]
[Pages 80785-80790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32558]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[MT-001a; FRL-6920-4]


Clean Air Act Full Approval of Operating Permit Program; State of 
Montana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Rule.

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SUMMARY: The EPA is promulgating full approval of the operating permit 
program submitted by the State of Montana. Montana's operating permit 
program was submitted for the purpose of meeting the federal Clean Air 
Act (Act) directive that states develop, and submit to EPA, programs 
for issuing operating permits to all major stationary sources and to 
certain other sources within the states' jurisdiction.

DATES: This final rule is effective on January 22, 2001.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the 
U.S. Environmental Protection Agency, Air and Radiation Program, Region 
8, 999 18th Street, Suite 300, Denver, Colorado 80202-2466 and are also 
available during normal business hours at the Montana Department of 
Environmental Quality, 1520 East 6th Avenue, Helena, Montana 59620-
0901.

FOR FURTHER INFORMATION CONTACT: Patricia Reisbeck, 8P-AR, U.S. 
Environmental Protection Agency, Region 8, 999 18th Street, Denver, 
Colorado 80202-2466, (303) 312-6435.

SUPPLEMENTARY INFORMATION:

I. Background

    As required under Title V of the Clean Air Act (``the Act'') as 
amended (42 U.S.C. 7401 et seq.), EPA has promulgated rules that define 
the minimum elements of an approvable state operating permit program 
and the corresponding standards and procedures by which EPA will 
approve, oversee, and withdraw approval of state operating permit 
programs (see 57 FR 32250 (July 21, 1992)). These rules are codified at 
40 Code of Federal Regulations (CFR) part 70 (part 70). Title V directs 
states to develop, and submit to EPA, programs for issuing operating 
permits to all major stationary sources and to certain other sources.
    The Act directs states to develop and submit operating permit 
programs to EPA by November 15, 1993, and requires that EPA act to 
approve or disapprove each program within 1 year after receiving the 
submittal. The EPA's program review occurs pursuant to section 502 of 
the Act (42 U.S.C. 7661a) and the part 70 regulations, which together 
outline criteria for approval or disapproval. Where a program 
substantially, but not fully, meets the requirements of part 70, EPA 
may grant the program interim approval. If EPA has not fully approved a 
program by two years after the November 15, 1993 date, or before the 
expiration of an interim program approval, it must establish and 
implement a federal program. The State of Montana was granted final 
interim approval of its program on May 11, 1995 (see 60 FR 25143) and 
the program became effective on June 12, 1995. Interim approval of the 
Montana program expires on December 1, 2001.
    On June 13, 2000, EPA published a direct final rule in the Federal 
Register promulgating full approval of the Operating Permit Program for 
the State of Montana. See 65 FR 37049. The EPA received adverse 
comments on the direct final rule, which are summarized and addressed 
below. As stated in the Federal Register notice, if adverse comments 
were received by July 13, 2000, the rule would be withdrawn and timely 
notice would be published in the Federal Register. Therefore, due to 
receiving adverse comments within the comment period, EPA withdrew the 
final rule (65 FR 48391, August 8, 2000), and a proposed rule also 
published in the Federal Register on June 13, 2000 served as the 
proposed rule for this action. EPA will not institute a second comment 
period on this document.
    In this rulemaking, EPA is taking final action to promulgate full 
approval of the Montana Operating Permit Program.

II. Analysis of State Submission

    The Governor of Montana submitted an administratively complete 
Title V operating permit program for the State of Montana on March 29, 
1994. This program, including the operating permit regulations (Title 
16, Chapter 8, Sub-Chapter 20, Sections 16.8.2001 through 16.8.2025, 
inclusive, of the Administrative Rules of Montana (ARM)), substantially 
met the requirements of part 70. EPA deemed the program 
administratively complete in a letter to the Governor dated May 12, 
1994. The program submittal included a legal opinion from the Attorney 
General of Montana stating that the laws of the State provide adequate 
legal authority to carry out all aspects of the program, and a 
description of how the State would implement the program. The submittal 
additionally contained evidence of proper adoption of the program 
regulations, application and permit forms, and a permit fee 
demonstration.
    EPA's comments noting deficiencies in the Montana program were sent 
to the State in a letter dated October 3, 1994. The deficiencies were 
segregated into those that would require corrective action prior to 
interim program approval, and those that would require corrective 
action prior to full program approval. The State committed to address 
the program deficiencies that would require corrective action prior to 
interim program approval in a letter dated October 20, 1994. The State 
submitted these corrective actions with letters dated March 30, and 
April 5, 1995. EPA reviewed these corrective actions and determined 
them to be adequate for interim program approval.
    On January 15, 1998, Montana amended its operating permit program 
to make the corrections identified as necessary in the May 11, 1995 
Federal Register notice of final interim approval. These program 
amendments, recodified at Title 17, Chapter 8, Sub-Chapter 12, Sections 
1201, 1210, and 1213, ARM, were approved and adopted by the Montana 
Board of Environmental Review on January 15, 1998. The revised program 
regulations adequately addressed the problems identified in the May 11, 
1995 Federal Register notice as requiring corrective action prior to 
full program approval. The State also submitted evidence of proper 
adoption of the revisions to its program regulations and a revised 
Attorney General's opinion dated July 31, 1998. The revised program and 
a request for full approval were submitted to EPA in a letter from the 
Governor of Montana dated February 4, 1999. EPA notified Montana, in a 
letter to the Department of Environmental Quality (DEQ) dated April 1, 
1999, of two additional changes required for final approval. The DEQ 
revised the administrative rules to implement the two requested changes 
at Title 17, Chapter 8, Sub-Chapter 12, ARM. These amendments to Sub-
Chapter 12 were approved and adopted by the Board on March 17, 2000. On 
April 12, 2000, the Governor of Montana submitted the revised program, 
with proof of proper adoption, and requested full approval of its 
operating permit program. EPA reviewed these changes and determined 
that they were adequate to allow for full approval. On June 13, 2000, 
EPA published a direct final rule in the Federal Register promulgating 
full approval of the Operating Permit Program for the State of Montana. 
See

[[Page 80786]]

65 FR 37049. The EPA received adverse comments on the direct final rule 
and, on August 8, 2000, published withdrawal of the direct final rule 
approval in the Federal Register. See 65 FR 48391.

III. Response to Comments

    The comments received on the June 13, 2000 direct final rule in the 
Federal Register promulgating full approval of the Montana operating 
permit program, and EPA's response to these comments are as follows:
    Comment 1: The commenter objected to EPA's approval of the Montana 
Operating Permit Program because a state regulation allows the 
administrative permit amendment process to be used for certain permit 
changes that are not listed in a regulation but that the Montana 
Department of Environmental Quality (``Department'') and EPA determine 
are similar to the listed revisions. A list of revisions that qualify 
for administrative permit amendment is found in Administrative Rules of 
Montana (``ARM'') Section 17.8.1201(1)(a) through (d). This regulation 
allows a source to use the administrative permit amendment process for 
such non-substantive changes as change in address and correction of 
typographical errors. The State has now added section (e), which allows 
``any other change which the department and EPA have determined to be 
similar'' to the listed revisions. The commenter objected that, by 
allowing the Department and EPA to add other kinds of permit revisions 
to the list without public notice and comment, the state regulation 
violates EPA's regulations at 40 CFR Part 70 (``part 70 program'' or 
``part 70 rules'').
    EPA Response: The definition of ``administrative permit amendment'' 
in EPA's regulations is found in 40 CFR 70.7(d)(1). The definition 
provides, at Sec. 70.7(d)(1)(vi), that an administrative permit 
amendment ``[i]ncorporates any other type of change which the 
Administrator has determined as part of the approved part 70 program to 
be similar to those in paragraphs (d)(1)(i) through (iv) of this 
section'' 40 CFR 70.7(d)(1)(vi). The enumerated paragraphs (i) through 
(iv) comprise a list of four non-substantive changes that are identical 
to those in the State's list in section 17.8.1201(1) (a) through (d). 
The comment suggests that the State cannot allow a source to use an 
administrative permit amendment for a change that is not on the list, 
unless the State first undergoes formal Title V program approval or 
program revision approval, with public notice and comment, to add the 
change to the list as a new requirement. The comment implies that ``as 
part of the approved part 70 program'' in EPA's regulation means ``as 
part of the part 70 program approval process.''
    EPA does not agree with this interpretation of our regulation. EPA 
believes that the correct interpretation of the phrase ``as part of the 
approved part 70 program'' refers to the fact that an unlisted change 
must be evaluated in the context of the approved state program to 
determine if it qualifies for an administrative amendment. The 
regulation does not require that EPA must approve a formal revision of 
the state program before a source can make a particular change 
administratively, but rather requires the State to seek EPA's approval 
for using the administrative permit amendment process for the change as 
part of a specific permitting action. EPA believes that the regulation 
allows the State to add to the list of non-substantive changes on a 
case-by-case basis, if EPA agrees that a particular permit change is of 
the same non-substantive nature as the enumerated list of changes that 
automatically qualify for administrative permit amendment. EPA's 
regulation thus allows exactly the kind of case-specific addition to 
the list contemplated in the new section of Montana's rules, ARM 
Section 17.8.1201(1)(e).
    Montana initially proposed a regulation that would allow the state 
to make additions to the list without consulting EPA. EPA advised that 
this would not be acceptable under Title V of the Clean Air Act 
(``Act''), since 40 CFR 70.7(d)(1)(vi) requires that EPA must make a 
determination that any additional change is similar to the enumerated 
changes--in other words, to determine that the change is of such a 
trivial or non-substantive nature that the administrative permit 
amendment process would be appropriate. The regulation does not require 
that the State must submit a list of anticipated non-substantive 
changes to EPA for prior approval, as part of the Title V program 
approval process, or that the State must revise its rules and submit 
them for approval as a program revision whenever it encounters a non-
substantive change it believes should qualify for treatment as an 
administrative permit amendment. The provision requires, instead, that 
the State must notify EPA on a case-by-case basis whenever it 
encounters a change it believes qualifies for the simpler 
administrative amendment process (rather than the more complex minor or 
significant permit modification process), so that EPA can decide if we 
agree that the change qualifies for such treatment. If we do not agree 
that the administration permit amendment process is appropriate for a 
particular permit change, we can advise the State of our disapproval at 
the draft permit stage of the operating permit process, or we can 
object to the proposed permit during our 45-day review and thus prevent 
the permit's issuance. If the permit has already been issued, we can 
require the state to re-open the permit to delete an unacceptable 
administrative permit amendment and instead process the change as a 
minor or significant permit revision.
    We appreciate the concern expressed in the comment that the list 
should not encompass substantive permit changes. EPA would not approve 
as an administrative permit amendment any non-substantive change to a 
Title V permit. We anticipate that the authority to add to the list of 
administrative permit amendments will be used only infrequently.
    Comment 2. a.: The commenter objected that allowing an emission 
threshold of five tons per year of any pollutant other than a hazardous 
air pollutant in the State's definition of ``insignificant emission 
unit'' exceeds the two-ton per year threshold that EPA has set in rules 
for federal operating permits, 40 CFR part 71 (``part 71 program'' or 
``part 71 rules''). The commenter also stated that the two-ton per year 
threshold was accepted in many other states. In the Federal Register 
notice proposing interim approval, EPA stated that Montana would need 
to provide a demonstration to show why a higher threshold of five tons 
per year would be insignificant. See 60 FR 25143-25144 (May 11, 1995).
    EPA Response: Insignificant emissions units are emitting units at a 
source that emit ``insignificant'' levels of emissions. For such units, 
the State may allow permit applicants to omit a full description of the 
units in their permit applications. However, there are several caveats. 
The applicant must still list the insignificant activity in its 
application and must include complete information about such unit if it 
is or may be subject to any applicable requirements. The pertinent 
provision of the part 70 rules provides: ``the Administrator may 
approve as part of a State program a list of insignificant activities 
and emissions levels which need not be included in permit applications. 
However, for insignificant activities which are exempted because of 
size or production rate, a list of such insignificant activities must 
be included in the application. An application may not omit information 
needed to determine the applicability

[[Page 80787]]

of, or to impose, any applicable requirement * * *.'' 40 CFR 70.5(c).
    This provision of the part 70 rules does not set a ceiling on the 
level of emissions that will be considered ``insignificant.'' EPA has 
allowed states, including Montana, to determine what the state 
considers to be ``insignificant'' for the limited purpose of omitting 
certain information from the permit application. The comparable section 
in the part 71 rules, 40 CFR 71.5(c)(11), does set such a ceiling: 
``Potential to emit of regulated air pollutants, excluding HAP 
[hazardous air pollutants] for any single emissions unit shall not 
exceed 2 tpy [tons per year].'' 40 CFR 71.5(c)(11)(ii)(A). This 
numerical limit applies only to federal operating permits, however, not 
to state operating permits or state operating permit programs. EPA's 
part 71 rules establish the requirements for the operating permits that 
EPA issues in Indian country or anywhere else when EPA is the 
permitting agency. The part 71 rules do not establish minimum 
requirements for state operating permit programs; state programs may 
differ from the federal program and may still be approved as long as 
they meet the applicable state program requirements, which are found in 
40 CFR part 70.
    The Montana operating permit program differs from the federal 
program in this respect, but we believe it fully satisfies the program 
requirements of 40 CFR part 70. The part 70 rules allow permit 
applicants to omit certain information about ``insignificant emissions 
units'' from their permit application. Montana's rules make clear, 
however, that if an emissions unit is subject to an applicable 
requirement other than a generally applicable requirement that applies 
to all sources, the unit may not be considered an insignificant 
emissions unit, no matter what its size may be. In other words, a unit 
emitting five tons per year or less of a regulated pollutant may not be 
treated as an insignificant emissions unit, if it is subject to a unit-
specific limit or a plant-wide applicability limit. Such a unit can 
only be considered ``insignificant'' if it is subject to a state-wide 
regulation, such as a generic limit on opacity, or to no applicable 
requirements at all. And if a unit emitting five tons per year or less 
does not qualify for ``insignificant'' status because it is subject to 
a source-specific limit, the applicant must provide all relevant 
information about the unit in the permit application, not simply 
information necessary to determine the applicability of the applicable 
requirement. In this respect, Montana's regulation is actually more 
stringent than EPA's and provides more protection for the public's 
right to know than EPA's regulation does. In any case, we believe there 
is no conflict with EPA's part 70 rules.
    In response to EPA's request that the State provide justification 
for using a five-ton per year cut-off, the Department stated, 
``Experience has demonstrated that individual emitting units that are 
not subject to applicable requirements other than generally applicable 
requirements, and whose potential emissions are less than 5 tpy, have 
such limited impact that they can be considered insignificant.'' Based 
on our knowledge of Montana's industrial sources, we agree with the 
Sates's assessment. The Department also noted that both 40 CFR part 70 
and EPA's July 10, 1995 guidance memorandum entitled, ``White Paper for 
Streamlined Development of Part 70 Permit Applications'' ``White Paper 
I''), allow states discretion in selecting an appropriate 
insignificance level for their Title V programs; and EPA has approved 
levels higher than two tons per year in some other states. We are aware 
of at least nine states, including Ohio, Florida, and Tennessee, and 
ten local permitting authorities with approved Title V programs, where 
EPA has allowed five tons per year as the cut-off for ``insignificant'' 
status. Some other states have a varying level depending on the 
pollutant (five tons per year for carbon monoxide in Washington State, 
for example) or an altogether different formula, based on pollutant or 
process, for determining insignificant levels. We conclude that Montana 
has adequately justified its use of five tons per year as a ceiling.
    Comment 2. b.: For hazardous air pollutants, the commenter objected 
that Montana defines insignificant emissions as less than 500 pounds 
per year, whereas EPA's part 71 rules provide that the insignificance 
threshold for hazardous air pollutants cannot exceed 1000 pounds per 
year or the de minimis level established under section 112(g) of the 
Act, whichever is less.
    EPA Response: The comment implies that the part 71 rules establish 
minimum requirements for state operating permit programs. They do not. 
State operating permit programs must satisfy the requirements of 40 CFR 
part 70, not 40 CFR part 71. The requirements of the two programs are 
not, and do not need to be, identical. In particular, the part 70 rules 
do not require that states adopt a particular cut-off for emissions of 
hazardous air pollutants from ``insignificant emissions units.'' 
Although the part 71 rules do establish a cut-off, that ceiling applies 
to federal operating permits only. In fact, the Montana regulation 
establishes a more stringent cut-off than the federal level: 500 pounds 
per year in ARM section 17.8.1201(22)(a)(iii), as opposed to 1000 
pounds per year in 40 CFR part 71.
    The commenter recognizes that a level even lower than 500 pounds 
per year could be established under the part 71 rules, as a 
determination of a de minimis increase in emissions pursuant to section 
112(g)(1)(A) of the Act: To date, however, EPA has not implemented the 
modification provisions of section 112(g) of the Act: EPA has not 
published guidance under section 112(g)(1)(B) of the Act establishing 
de minimis levels of emission increases for purposes of applying 
offsets under section 112(g)(1)(A) of the Act. Therefore, the 
establishment of an ``insignificant'' level under the part 71 program 
which would be lower than 1,000 pounds per year, let alone 500 pounds 
per year, remains a merely hypothetical possibility. EPA believes that 
the Montana ceiling for insignificant emissions of hazardous air 
pollutants is more stringent than the federal requirement and will 
adequately protect the public interest in disclosure of information 
about hazardous air pollutants.
    Comment 3: The commenter stated that Montana's rules still do not 
adequately assure that any monitoring data or other credible evidence 
can be used to determine compliance and for direct enforcement. The 
commenter expressed a concern that the wording of ARM 17.8.1213(2), 
which requires that any data ``generated as a condition of the permit'' 
may be used to demonstrate compliance with the conditions of the permit 
and may be used for direct enforcement, might be interpreted to limit 
evidence of noncompliance only to monitoring or testing data required 
by the permit.
    EPA Response: EPA does not agree with the suggested interpretation 
of ARM 17.8.1213(2). We do not believe that the provision, by its terms 
or by implication, precludes the use of other kinds of evidence to show 
compliance or noncompliance with applicable requirements. We believe 
that the provision makes clear that, if the permit requires testing or 
monitoring, the results of such testing or monitoring may be used as 
evidence of noncompliance regardless of the effect of any other rule. 
EPA does agree, however, that Montana must develop a credible evidence 
rule to eliminate any possibility of ambiguity in its regulations and 
thus ensure that all evidence of noncompliance may be used

[[Page 80788]]

for purposes of direct enforcement, as long as that evidence is 
credible. Montana is in the process of developing and adopting a 
credible evidence rule, several versions of which were available for 
public comment this past summer.
    Comment 4: The commenter stated that the State must certify its 
ability to require annual certifications from part 70 sources regarding 
proper implementation of their Risk Management Plans (RMP) under 
section 112(r) of the Act, and must provide a compliance schedule for 
sources that fail to submit the required plan. EPA's full approval 
notice does not indicate whether this requirement was in fact met, but 
merely indicates that ``the State will include a statement listing 40 
CFR 68.215(a) as an applicable requirement in all Title V operating 
permits.'' There is no indication that the State has in fact committed 
to do this or is legally authorized and obligated to do so.
    EPA Response: EPA's full approval notice should have made clear 
that the Governor of Montana, in a letter dated February 4, 1999, made 
a commitment to require annual certifications from sources regarding 
their compliance with all program requirements related to accident 
prevention, emergency response, and risk management plans under section 
112(r) of the Act, and to provide compliance schedules for any sources 
that fail to submit their required plan to EPA. The letter stated, 
``The department [of Environmental Quality] will include a statement 
listing 40 CFR 68.215(a) as an applicable requirement in all title V 
operating permits.'' The referenced Sec. 68.215(a) of Title 40 of the 
Code of Federal Regulations requires that each source subject to both 
section 112(r) of the Act and Title V of the Act must have, as 
conditions of its operating permit, a statement listing all of 40 CFR 
part 68 (``Chemical Accident Prevention Provisions'') as an applicable 
requirement, together with conditions requiring the source owner or 
operator to submit a compliance schedule for meeting all applicable 
requirements of part 68, and requiring the source to include in its 
annual compliance certification a statement certifying that the source 
is in compliance with all requirements of part 68, including the 
requirements for registration and submission of a risk management plan.
    In particular, 40 CFR part 68 requires sources that have more than 
a threshold level of any regulated substance to prepare and submit an 
RMP. See 40 CFR 68.12(a) and 68.150. Unless the source can certify in 
the RMP that no member of the public would be affected by any 
accidental release from the source, 40 CFR part 68 further requires 
sources to implement a risk management system, to conduct a hazard 
assessment, to implement a chemical accident prevention program, to 
implement an emergency response program, and to include data on the 
implementation of these programs in the RMP. See 40 CFR 68.12(b), (c), 
and (d). All those requirements are included as applicable permit 
conditions by effect of the State's listing 40 CFR 68.215(a) in all 
Montana operating permits. As the Governor committed, Montana will 
satisfy its obligations under section 112(r) of the Act by requiring 
all part 70 sources to certify compliance with applicable risk 
management planning requirements and by developing compliance schedules 
for sources that have not yet submitted risk management plans to EPA. 
When we referred to the State's commitment in the notice proposing full 
approval, we should have clarified that the commitment came from the 
Governor, thus assuring EPA that the State would meet its statutory 
obligations.
    Comment 5: The commenter stated that the State's revised rule on 
termination, revocation, and re-issuance of state permits still 
improperly limits the state's authority to terminate or revoke permits.
    EPA Response: Section 502(b)(5)(D) of the Act requires that the 
permitting authority must have adequate authority to ``terminate, 
modify, or revoke and reissue permits for cause.'' The State's original 
version of the pertinent regulation provided that the Department could 
terminate, modify or revoke and reissue permits ``for continuing and 
substantial violations.'' EPA advised that this provision did not give 
adequate authority to the Department to terminate or alter permits for 
other kinds of cause: for example, to correct a material mistake in the 
permit or to respond to an EPA objection to a permit. Subsequently, 
Montana revised its rule, ARM 17.8.1210(2)(a), to say that permits 
could be terminated, modified, or revoked and reissued ``for cause.'' 
The State then added, ``Appropriate `cause' for permit termination is 
noncompliance with permit terms or conditions that is continuing or 
substantial in nature and scope.'' EPA regards this added language as 
providing an example when a permit may be terminated in the context of 
an enforcement action. The specific example with respect to permit 
termination does not limit the State's general authority to terminate, 
modify, or revoke and reissue any permit for cause. In addition, we 
believe that the phrase ``continuing or substantial in nature and 
scope'' in the specific example is not necessarily less inclusive than 
the phrase ``continuing and substantial violations'' in the earlier 
version. We believe that the State's revision of the regulation has 
satisfied EPA's concern that the Department have adequate authority to 
revise or terminate permits, whenever sufficient cause exists.

IV. Final Action

    In this document, EPA is granting full approval of the Montana part 
70 operating permits program for all areas within the State except the 
following: any sources of air pollution located in ``Indian Country'' 
as defined in 18 U.S.C. 1151, including the following Indian 
reservations in the State: Northern Cheyenne, Rocky Boys, Blackfeet, 
Crow, Flathead, Fort Belknap, and Fort Peck Indian Reservations, or any 
other sources of air pollution over which an Indian Tribe has 
jurisdiction. See section 301(d)(2)(B) of the Act; see also 63 FR 7254 
(February 12, 1998). The term ``Indian Tribe'' is defined under the Act 
as ``any Indian tribe, band, nation, or other organized group or 
community, including any Alaska Native village, which is federally 
recognized as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians.'' 
See section 302(r) of the Act; see also 58 FR 54364 (Oct. 21, 1993).
    This rule will be effective January 22, 2001.

V. Administrative Requirements

A. Executive Order 12866

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

B. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Order 12612 (Federalism) and Executive Order 12875 (Enhancing 
the Intergovernmental Partnership). Executive Order 13132 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

[[Page 80789]]

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 
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, as specified in Executive Order 13132. 
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 is not 
an economically significant regulatory action as defined by Executive 
Order 12866, and it does not establish a further health or risk-based 
standard because it approves state rules which implement a previously 
promulgated health or safety-based standard.

D. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly 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. This action does not involve or impose any 
requirements that affect Indian Tribes. 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 part 70 approvals under section 502 of 
the Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because 
this approval does not create any new requirements, I certify that this 
action will not have a significant economic impact on a substantial 
number of small entities.

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 no 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. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

H. 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 February 20, 2001. 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 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.


[[Page 80790]]


    Dated: December 13, 2000.
Patricia D. Hull,
Acting Regional Administrator, Region VIII.

    40 CFR part 70 is amended as follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.

    2. In appendix A to part 70 the entry for Montana is amended by 
adding paragraph (b) to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

Montana

* * * * *
    (b) The Montana Department of Environmental Quality submitted an 
operating permits program on March 29, 1994; effective on June 12, 
1995; revised January 15, 1998, and March 17, 2000; full approval 
effective on January 22, 2001.
* * * * *
[FR Doc. 00-32558 Filed 12-21-00; 8:45 am]
BILLING CODE 6560-50-P