[Federal Register Volume 66, Number 117 (Monday, June 18, 2001)]
[Rules and Regulations]
[Pages 32760-32767]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15142]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MT-001-0024, MT-001-0025, MT-001-0026; FRL-6986-1]


Clean Air Act Approval and Promulgation of Air Quality 
Implementation Plan; Montana; East Helena Lead State Implementation 
Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is partially approving and partially disapproving the 
East Helena Lead (Pb) State Implementation Plan (SIP) revisions 
submitted by the Governor of Montana on August 16, 1995, July 2, 1996, 
and October 20, 1998. The EPA is partially approving and partially 
disapproving these SIP revisions because, while they strengthen the 
SIP, they also do not fully meet the Act's provisions regarding plan 
requirements for nonattainment areas. The intended effect of this 
action is to make federally enforceable those provisions that EPA is 
partially approving, and not make federally enforceable those 
provisions that EPA is partially disapproving. The EPA is taking this 
action under sections 110, 179, and 301 of the Clean Air Act (Act).

EFFECTIVE DATE: This final rule is effective July 18, 2001.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the Air 
and Radiation Program, Environmental Protection Agency, Region VIII, 
999 18th Street, Suite 300, Denver, Colorado, 80202 and copies of the 
Incorporation by Reference material 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 for public inspection at the Montana Department of 
Environmental Quality, Air and Waste Management Bureau, 1520 E. 6th 
Avenue, Helena, Montana 59620.

FOR FURTHER INFORMATION CONTACT: Kerri Fiedler, EPA, Region VIII, (303) 
312-6493 or Laurie Ostrand, EPA, Region VIII, (303) 312-6437.

SUPPLEMENTARY INFORMATION:

Table of Contents

Definitions
I. Background
II. EPA's Action on the State of Montana's Submittal
    A. Why Is EPA Partially Approving Parts of the State of 
Montana's Plan?
    B. Why Is EPA Partially Disapproving Parts of the State of 
Montana's Plan?
    C. What Happens When EPA Partially Approves and Partially 
Disapproves the State of Montana's Plan?
    D. Miscellaneous
    E. Why Is EPA Completing a Separate Direct Final Rulemaking on 
the East Helena Lead SIP?
III. What Comments Were Received on EPA's Proposed Action and How Is 
EPA Responding to Those Comments?
IV. Summary of EPA's Final Action.
IV. Administrative Requirements.

[[Page 32761]]

Definitions

    For the purpose of this document, we are giving meaning to certain 
words as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials Pb mean or refer to the element lead.
    (iv) The initials MDEQ mean or refer to the Montana Department of 
Environmental Quality.
    (v) The initials SIP mean or refer to State Implementation Plan.
    (vi) The words State or Montana mean the State of Montana, unless 
the context indicates otherwise.

I. Background

    On November 6, 1991 (56 FR 56694), we designated the East Helena 
area as nonattainment for Pb. This designation was effective on January 
6, 1992 and required the State to submit a part D SIP by July 6, 1993. 
On August 16, 1995, July 2, 1996 and October 20, 1998 the Governor of 
Montana submitted SIP revisions to meet the part D SIP requirements. We 
proposed to partially approve and partially disapprove the State's 
submittals on October 10, 2000 (65 FR 60144). Refer to the October 10, 
2000 proposed rulemaking for a complete discussion of our review of the 
State submittals.
    On November 27, 2000, the Governor of Montana submitted additional 
revisions to the East Helena Pb SIP. We are addressing the November 27, 
2000 submittal in a separate action published today. See discussion 
below in section II.E.

II. EPA's Action on the State of Montana's Submittal

A. Why Is EPA Partially Approving Parts of the State of Montana's Plan?

    In our October 10, 2000 proposed rulemaking, we proposed to 
partially approve the East Helena Pb SIP revisions. Apart from comments 
suggesting we fully approve the plan, we did not receive any adverse 
comments on our proposal to partially approve the SIP. We still believe 
it is appropriate to partially approve the SIP. See our proposed 
rulemaking action (65 FR 60144) for a more detailed discussion of our 
evaluation of the State's submittal.
    Apart from those provisions we are disapproving, we are approving 
all other provisions of the SIP. We are approving the other parts of 
the SIP because we believe they meet our SIP approval criteria and 
provide enforceable emission limitations on Pb sources in East Helena. 
We caution that if sources are subject to more stringent requirements 
under other provisions of the Act (e.g., section 111, part C, or SIP-
approved permit programs under part A), our partial approval of the SIP 
(including emission limitations and other requirements), would not 
excuse sources from meeting these other, more stringent requirements. 
Also, our partial approval of the SIP is not meant to imply any sort of 
applicability determination under other provisions of the Act (e.g., 
section 111, part C, or SIP-approved permit programs under part A).

B. Why Is EPA Partially Disapproving Parts of the State of Montana's 
Plan?

    In our October 10, 2000 proposed rulemaking, we proposed to 
partially disapprove portions of the East Helena Pb SIP. We have 
considered the comments received and still believe we should partially 
disapprove the SIP as proposed. We refer the reader to the comments 
received and our responses in section III, below.
    We are partially disapproving the SIP revisions, because they do 
not fully meet the Act's provisions regarding plan submissions and 
requirements for nonattainment areas. The current version of East 
Helena's Pb SIP does not entirely conform to the requirement of section 
110(a)(2) of the Act that SIP limits must be enforceable nor to the 
requirement of section 110(i) that the SIP can be modified only through 
the SIP revision process. In a March 24, 1998 letter to MDEQ, we raised 
concerns about places in the stipulation where MDEQ has the discretion 
to modify existing provisions or add future documents or compliance 
monitoring methods to the Pb SIP. The stipulations did not make clear 
whether any of these changes would be submitted as SIP revisions or by 
any other process for us to review and approve. We indicated that, in 
places where the stipulation allowed MDEQ to exercise discretion, the 
words ``and EPA'' must be added. The State did not revise the SIP to 
address our concerns and in a November 16, 1999 letter to us the MDEQ 
indicated that the department discretion issues would be addressed at a 
later date. We are partially disapproving the SIP because of the 
provisions that allow department discretion and two other provisions 
that contain enforceability issues related to a test method.
    The conditions allowing department discretion are discussed in 
Table 1 below:

                                         Table 1.--Department Discretion
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                        Provision No.                                             Description
----------------------------------------------------------------------------------------------------------------
Asarco Stipulation Provision 15 and American Chemet           Indicates that stipulations may be modified when
 Stipulation Provision 20.                                     sufficient grounds exist. For example, if the
                                                               State demonstrates through modeling or other
                                                               means that an alternative plan could still meet
                                                               the NAAQS, the plan could be modified. Although
                                                               our March 24, 1998 letter may have indicated that
                                                               these provisions would be acceptable if MDEQ
                                                               could confirm our interpretations, we now believe
                                                               that these provisions need to be revised in the
                                                               same way that the State revised similar
                                                               provisions in stipulations in the Billings SIP.
Asarco Stipulation Provision 16.............................  Indicates that revisions to attachments of the
                                                               stipulation can be made, once approved by MDEQ.
                                                               The stipulation does not make clear whether MDEQ
                                                               approval means that the revised attachments will
                                                               be deemed incorporated in to the SIP. We believe
                                                               that, since the attachments are a part of the SIP
                                                               and pertain mostly to enforceability provisions,
                                                               any revision to an attachment should be evaluated
                                                               for significance \1\ and if determined to be
                                                               significant, the revision must be approved as a
                                                               SIP revision or approved through title Title V
                                                               process.\2\ We suggested to MDEQ that where the
                                                               ``Department'' appears in the stipulations ``and
                                                               EPA'' should be added.
Asarco Exhibit A, Section 6.................................  References Attachment 6, ``Quality Assurance/
                                                               Quality Control (QA/QC) and Standard Operating
                                                               Procedures (SOP) for Continuous Opacity
                                                               Monitoring Systems.'' Any revision to an
                                                               attachment and provision should be evaluated for
                                                               significance \3\, and if determined to be
                                                               significant, the revision must be approved as a
                                                               SIP revision or approved through the Title V
                                                               process. EPA has suggested to MDEQ that where
                                                               ``the Department'' appears in the stipulations
                                                               ``and EPA'' should be added.

[[Page 32762]]

 
Asarco Exhibit A, Section 7(A)(2)...........................  Indicates that certain test methods are to be
                                                               used, or other methods as approved by MDEQ. Any
                                                               revision to a testing method or provision should
                                                               be evaluated for significance \4\, and it
                                                               determined to be significant, the revision must
                                                               be approved as a SIP revision or approved through
                                                               the Title V process. EPA has suggested to MDEQ
                                                               that where ``the Department'' appears in the
                                                               stipulations ``and EPA'' should be added.
Asarco Exhibit A, Section 11(c).............................  Indicates that if the Baghouse Maintenance Plan,
                                                               (Attachment 7), is revised it needs to be
                                                               reviewed and approved by MDEQ. Any revision to an
                                                               attachment should be evaluated for significance
                                                               \5\, and if determined to be significant, the
                                                               revision must be approved as a SIP revision or
                                                               approved through the Title V process. EPA has
                                                               suggested to MDEQ that where ``the Department''
                                                               appears in the stipulations ``and EPA'' should be
                                                               added.
Asarco Exhibit A, Section 12(A)(7)..........................  Indicates that the Baghouse Maintenance Plan,
                                                               (Attachment 7), will need further revisions. Once
                                                               revised, it will be reviewed and approved by
                                                               MDEQ. Any revision to an attachment should be
                                                               evaluated for significance \6\, and if determined
                                                               to be significant, the revision must be approved
                                                               as a SIP revision or approved through the Title V
                                                               process. EPA has suggested to MDEQ that where
                                                               ``the Department'' appears in the stipulations
                                                               ``and EPA'' should be added.
Asarco Exhibit A, Section 12(B).............................  Indicates that if attachments are revised they
                                                               need to be reviewed and approved by MDEQ. Any
                                                               revision to an attachment should be evaluated for
                                                               significance \7\, and if determined to be
                                                               significant, the revision must be approved as a
                                                               SIP revision or approved through the Title V
                                                               process. EPA has suggested to MDEQ that where
                                                               ``the Department'' appears in the stipulations
                                                               ``and EPA'' should be added.
----------------------------------------------------------------------------------------------------------------
\1\ ``Evaluated for significance'' means that the State must submit to us all modifications to the SIP text
  (including minor and clerical corrections or modifications ) and all MDEQ approvals of alternative
  requirements and methodologies. If the modification to the text or alternative requirement or methodology is
  proposed as a ``minor modification'' (or clerical correction) we will inform the State, within 45 days from
  the date of submittal, of our determination whether the modification or alternative is major or minor, and if
  it is minor, of our approval of the modification or alternative. (We caution that our failure to make such
  determination within 45 days does not mean that the modification or alternative is either minor or approved.)
  If we do not approve the modification of text, alternative requirement, or alternative methodology as minor,
  the State must adopt the modification as a SIP revision in accordance with section 110(a)(2) of the Act and
  submit it to us for approval. We will then act on the SIP revision in accordance with the provision of Title I
  of the Act, pursuant to notice and comment rulemaking.
\2\ As indicated in our March 24, 1998 letter, to use the Title V approach, the stipulation or SIP document must
  contain enabling language that would allow the SIP to be revised through the Title V permit process. Our March
  5, 1996 memorandum, ``White Paper Number 2 for Improved Implementation of the Part 70 Operating Permits
  Program,'' (White Paper) suggests enabling language in Attachment B.II. The White Paper (section II.A and
  Attachment A) discusses the streamlining process that must be followed in order to revise SIPs through the
  Title V permit. Note, however, that until the State is actually issuing Title V permits for these sources, a
  source-specific SIP revision would be necessary.
\3\ See footnote 1 above.
\4\ See footnote 1 above.
\5\ See footnote 1 above.
\6\ See footnote 1 above.
\7\ See footnote 1 above.

    In addition to the department discretion issues, we believe that 
sections 2(A)(22), 2(A)(28), and 5(G)\8\ of Asarco Exhibit A, contain 
enforceability problems. These sections, which discuss how moisture 
content and silt content will be determined, indicate that sampling 
will be performed by specified methods or ``equivalent'' methods. The 
definition is not clear as to who will determine that the 
``equivalent'' methods are acceptable. Any revision to a testing method 
or provision should be evaluated for significance and if determined to 
be significant, the revision must be approved as a SIP revision or 
approved through the Title V process. (See footnote 1 above.)
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    \8\ In our October 10, 2000 proposal notice we identifiefd 
concerns with only sections 2(A)(22) and 2(A)(28) and not section 
5(G). However, since the proposal notice we have found the same 
concern in 5(G) as in the other sections.
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    Because these provisions could allow changes in requirements 
without EPA and public review or EPA approval, and could allow use of 
test methods not accepted by us, the East Helena Pb SIP revisions 
present Federal enforceability issues and thus fail to comply with the 
general enforceability requirements of section 172(c)(6) of the Act. 
Therefore, we are partially approving and partially disapproving the Pb 
SIP revision under section 110(k)(3) of the Act. With this partial 
approval and partial disapproval, we are incorporating into the 
federally approved SIP all provisions of the stipulation, exhibits, and 
attachments except those provisions that allow the Department or 
sources to modify the SIP without seeking SIP approval through us. 
(Please see Section IV (``Summary of EPA's Final Action'') below.) We 
note that portions of the SIP we are approving indicate that under 
certain circumstances Asarco may need to revise attachments to Exhibit 
A. Since we are not approving the Department's discretion to allow 
these revisions unilaterally, we interpret these provisions to mean 
that revisions of the attachments for Exhibit A will be adopted at the 
State level and submitted as a SIP revision to us for approval. 
Additionally, we do not believe that our disapproval of the above-
mentioned provisions would render the SIP more stringent than the State 
of Montana intends, since our action does not change the stringency of 
any of the substantive requirements the State of Montana has imposed 
and is currently able to enforce through the SIP.

C. What Happens When EPA Partially Approves and Partially Disapproves 
the State of Montana's Plan?

    By partially approving the SIP, we are making the approved portions 
of the State's submittal federally enforceable (and enforceable by 
citizens under the Act). Those portions of the SIP that we disapprove 
are not made federally enforceable. We believe that the approved 
portions of the East Helena Pb SIP, except for those provisions that we 
are disapproving, satisfy the Act's criteria for Pb nonattainment SIPs. 
Even though we are disapproving portions of the SIP, the State is not 
required to revise the SIP to fully meet the Act's Pb nonattainment 
requirements. Therefore, because the State is not required to complete 
any further SIP revisions as a result of the partial disapproval, 
sanctions and Federal Implementation Plan (FIP) clocks under sections 
179(a)

[[Page 32763]]

and 110(c), respectively, will not be started by our partial 
disapproval of the East Helena Pb SIP.

D. Miscellaneous

    Under section 179(c)(1), we have the responsibility for determining 
whether a nonattainment area has attained the Pb NAAQS. We must make an 
attainment determination as expeditiously as practicable, but no later 
than 6 months after the attainment date for the area. The attainment 
date for East Helena was January 6, 1997. We make the attainment 
determination for a nonattainment area based solely on an area's air 
quality data.\9\ Based on the air quality data currently in the AIRS 
database and pursuant to section 179(c)(1) of the Act, we have 
determined that the East Helena Pb nonattainment area has attained the 
Pb NAAQS through calendar year 1999.
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    \9\ See Guidance Memorandum from Sally L. Shaver, Director, 
Office of Air Quality Planning and Standards, OAQPS, to Regional Air 
Division Directors, entitled ``Attainment Determination Policy for 
Lead Nonattainment Areas,'' dated June 22, 1995.
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    While we may determine that an area's air quality data indicate 
that the area is meeting the Pb NAAQS for a specified period of time, 
this does not eliminate the State's responsibility under the Act to 
continue to implement the requirements of the approved Pb SIP. Even if 
we determine that an area has attained the standard, the area will 
remain designated as nonattainment until the State has requested, and 
we approve the State's request, for redesignation to attainment. In 
order for an area to be redesignated to attainment, the State must 
comply with the requirements provided in sections 107(d)(3)(E) and 
172(a) of the Act.
    Finally, in our notice of proposed rulemaking we proposed certain 
regulatory text. We noted an error in our proposed regulatory text and 
in this final action are correcting that error. Specifically, in the 
proposed regulatory text at Sec. 52.1370(c)(51)(i)(A) we indicated that 
we were incorporating by reference the stipulation, exhibit A and 
attachments (excluding certain provisions) adopted by Board order on 
August 28, 1998. We believe we should not have included exhibit A and 
attachments, because a closer look at the August 28, 1998 Board order 
indicates that it is incorporating changes made only in ``the attached 
stipulation.'' The ``attached stipulation'' shows changes in the 1996 
stipulation and does not include exhibit A or attachments. Also at 
Sec. 52.1370(c)(51)(i)(B) we indicated that we were incorporating by 
reference the stipulation, exhibit A and attachments (excluding certain 
provisions) adopted by Board order on June 21, 1996. The excluded 
provisions should have included both those identified in 
Sec. 52.1370(c)(51)(i)(B) and those identified in 
Sec. 52.1370(c)(51)(i)(A). We have corrected this by moving exclusions 
identified in Sec. 52.1370(c)(51)(i)(A) in the notice of proposed 
rulemaking to Sec. 52.1370(c)(51)(i)(B) in this notice of final 
rulemaking. We also have removed Sec. 52.1370(c)(51)(ii)(D) and 
Sec. 52.1370(c)(51)(ii)(E) from our notice of proposed rulemaking in 
response to comments. Please see section III, ``What Comments Were 
Received on EPA's Proposed Action and How Is EPA Responding to Those 
Comments?'' The final regulatory text at the end of this notice has 
been revised to incorporate the changes mentioned above.

E. Why Is EPA Completing a Separate Direct Final Rulemaking on the East 
Helena Lead SIP?

    Subsequent to our October 10, 2000 proposed rulemaking, the State 
of Montana submitted another revision to the East Helena Pb SIP. We 
believe the revisions submitted on November 27, 2000 are minor, and we 
have completed a direct final rulemaking to approve them into the SIP 
(see the separate direct final rulemaking on the East Helena Pb SIP 
also published in today's edition of the Federal Register). Since the 
State revised portions of the plan on which we proposed action, we 
believe we should act on the new provisions at the same time we take 
final action on our proposed rulemaking so that the end result will be 
a federally approved plan that is consistent with the current State 
plan (except for those provisions of the plan that we are partially 
disapproving).

III. What Comments Were Received on EPA's Proposed Action and How 
Is EPA Responding to Those Comments?

    We proposed to partially approve and partially disapprove the SIP 
due to concerns about various provisions in the SIP that allow 
department discretion to alter the SIP. We received two comments 
opposing our proposed action to partially approve and partially 
disapprove the SIP due to department discretion. We have considered the 
comments received and believe it is still appropriate to partially 
disapprove the SIP as submitted. In addition, we received two comments 
pertaining to the regulatory text we had proposed at the end of our 
notice and the appropriateness of incorporating certain documents under 
the ``additional material'' section. We have considered the comments we 
received and have revised our proposed regulatory text somewhat. The 
following is a summary of the comments we received and our response to 
the comments:
    (1) Comment: We received two comments concerning our position on 
department discretion, claiming that future changes to equipment and 
processes will contravene the specific language of the SIP but will 
have no direct effect on the facility's emissions or the State's 
attainment demonstration. The commenters believe that the State should 
be able to make these changes without triggering the SIP review process 
and that the foundation of the Act is a partnership between EPA and the 
State which assigns primary responsibility to the State for ensuring 
compliance with the National Ambient Air Quality Standards (NAAQS). In 
addition, one of the commenters believes that the Act allows us to call 
for a SIP revision (a ``SIP Call'' under section 110(k)(5) of the Act) 
when the State's exercise of that discretion weakens the SIP.
    Response: Section 110(i) of the Act (42 U.S.C. 7410(i)) prohibits 
States and EPA, except in certain limited circumstances, which do not 
apply to the East Helena Pb SIP, from taking any action to modify a 
requirement of a SIP except by SIP revisions. We do not agree that 
Montana or EPA should be free to make changes to SIPs that may 
contravene the specific language of the SIP but have no direct effect 
on the facility's emissions or the State's attainment demonstration. 
Section 110(i) by its terms requires that changes in SIP requirements 
must be made by the SIP revision process. That process gives the public 
the opportunity to review and comment on the reasonableness and 
adequacy of the requirements that are to be imposed, and gives us an 
opportunity to review all changes. Also, we do not find a SIP Call to 
be a satisfactory alternative. We believe we should address the 
question of appropriate SIP revisions in advance rather than waiting to 
determine that a State's exercise of a department discretion has 
weakened the SIP.
    (2) Comment: We received a comment in regard to the Montana Board 
of Environmental Review approving a new SIP revision in September 2000, 
which had not yet been submitted to EPA for review and approval. 
Because the version of the SIP proposed in our rulemaking (See 65 FR 
60144) is different than the current SIP enforced by the State, we were 
asked to defer our final approval until the most recent Pb SIP revision 
could be included.
    Response: Elsewhere in today's Federal Register, we are acting on 
the

[[Page 32764]]

subsequent SIP revision to approve the submittal as a direct final 
rule.
    (3) Comment: We received two comments concerning our proposed 
language in 40 CFR 52.1370(c)(51)(ii) that would include two Montana 
Air Quality Permits and two letters from MDEQ to EPA Region 8. The two 
commenters are concerned that, if they are included as ``additional 
material'' in the regulatory text of the Montana SIP, any change to the 
conditions, provisions, and limitations contained in the two permits 
identified in 40 CFR 52.1370(c)(51)(ii), could only be accomplished via 
the SIP revision process.
    Response: We agree with the comments in regard to the proposed 
language in 40 CFR 52.1370(c)(51)(ii) concerning the two Montana Air 
Quality Permits. In the final rule we are removing the Montana Air 
Quality Permits from the proposed language in 40 CFR 
52.1370(c)(51)(ii). The two letters from MDEQ to EPA Region 8, however, 
should remain a part of the additional material. These letters were 
submitted to us by MDEQ to help us interpret portions of the East 
Helena Pb SIP and are key to our decision to partially approve and 
partially disapprove the East Helena Pb SIP.
    (4) Comment: One commenter questioned whether the existing language 
in the Asarco stipulation is sufficient to enable adopting equivalent 
alternative requirements in the Pb SIP through the Title V process. The 
language in the SIP reads:

    The requirements of this Stipulation may also be modified by 
equivalent alternative requirements implemented through the state 
operating permit program under authorization of Title V of the 
Federal Clean Air Act. The procedures for implementing equivalent 
alternative requirements must meet federal requirements for 
modifications of SIPs through the state operating permits. 
Equivalent alternative requirements may be adopted only after a 
demonstration that their adoption will assure attainment and 
maintenance of the NAAQS.

    Response: We do not believe that the existing enabling language is 
sufficient to revise the Pb SIP through the Title V process. We believe 
that, at a minimum, the enabling language should include procedures to 
make sure that any SIP revisions through the Title V process follow the 
significant permit revisions process; satisfy the provisions and terms 
of 40 CFR 70.6(a)(1)(iii); and establish procedures for determining 
equivalency. In addition, the enabling language should indicate which 
provisions of the Pb SIP can be revised through the Title V permit 
process.
    (5) Comment: We received one comment requesting clarification 
regarding the process for obtaining EPA approval for changes in the 
department discretion provisions. The commenter read the Federal 
Register notice, in light of the Technical Support Document, to provide 
that: (1) All modifications to SIP text and MDEQ approval of 
alternative requirements and methodologies must be submitted to EPA; 
(2) EPA will determine, for each submittal, whether the modification is 
a minor modification and notify the MDEQ of its determination within 45 
days; (3) if the change is not approved as minor, it must be approved 
as a SIP revision; provided, however, that if the SIP is amended to 
allow it, non-minor changes may be approved, in the alternative, 
through the Title V permit process. The commenter asked that we confirm 
whether or not this understanding is accurate and that we clarify what 
standard will be applied to determine whether a proposed change is a 
minor modification.
    Response: The commenter's understanding is correct and is 
consistent with footnotes 1 and 2 of this document. We intend to use 
the March 30, 1993 memorandum from Gilbert H. Wood, Chief, Emissions 
Measurement Branch, Office of Air Quality Planning and Standards, to 
the Emission Measurement Branch, entitled ``Handling Requests for 
Minor/Major Modifications/Alternative Testing and Monitoring Methods or 
Procedures Approvals and Disapprovals' (the Gil Wood memo) for 
determining whether a proposed change is a minor modification, at least 
until the Gil Wood memo is superceded by more current guidance. We will 
include a copy of the Gil Wood memo in the docket for this SIP action.

IV. Summary of EPA's Final Action

    After reviewing the comments received we still believe it is 
appropriate to partially approve and partially disapprove the East 
Helena Pb SIP. Apart from those provisions we are disapproving, we are 
approving all other aspects of the East Helena Pb SIP. The specific 
provisions we are disapproving pertain to department discretion 
provisions in the SIP or provisions that allow sources to modify 
certain aspects of the plan.
    We are disapproving the following phrases, words, or section in 
exhibit A of the stipulation by the MDEQ and Asarco adopted by order 
issued on June 21, 1996, by the Montana Board of Environmental Review:
    (1) The words, ``or an equivalent procedure'' in the second and 
third sentences in section 2(A)(22) of exhibit A;
    (2) The words, ``or an equivalent procedure'' in the second and 
third sentences in section 2(A)(28) of exhibit A;
    (3) The words, ``or an equivalent procedure'' in the second 
sentence in section 5(G) of exhibit A;
    (4) The sentence, ``Any revised documents are subject to review and 
approval by the Department as described in section 12,'' from section 
6(E) of exhibit A;
    (5) The words, ``or a method approved by the Department in 
accordance with the Montana Source Testing Protocol and Procedures 
Manual shall be used to measure the volumetric flow rate at each 
location identified,'' in section 7(A)(2) of exhibit A;
    (6) The sentence, ``Such a revised document shall be subject to 
review and approval by the Department as described in section 12,'' in 
section 11(C) of exhibit A;
    (7) The sentences, ``This revised Attachment shall be subject to 
the review and approval procedures outlined in section 12(B). The 
Baghouse Maintenance Plan shall be effective only upon full approval of 
the plan, as revised. This approval shall be obtained from the 
Department by January 6, 1997. This deadline shall be extended to the 
extent that the Department has exceeded the time allowed in section 
12(B) for its review and approval of the revised document,'' in section 
12(A)(7) of exhibit A;
    (8) Section 12(B) of exhibit A.
    We are disapproving paragraphs 15 and 16 of the stipulation by the 
MDEQ and Asarco adopted by order issued on June 21, 1996 by the Montana 
Board of Environmental Review.
    We are disapproving paragraph 20 of the stipulation by the MDEQ and 
American Chemet adopted by order issued on August 4, 1995 by the 
Montana Board of Environmental Review.
    We are also correcting and modifying the proposed regulatory text 
as indicated in sections II.D and II.E above.
    Finally, pursuant to section 179(c)(1), we are determining that the 
East Helena nonattainment area has attained the Pb NAAQS. As indicated 
above, this does not eliminate the State's responsibility under the Act 
to continue to implement the requirements under the approved Pb SIP. 
Even if we determine that an area has attained the standard, the area 
will remain designated as nonattainment until the State has requested, 
and we approve the State's request for, redesignation to attainment.

[[Page 32765]]

    We caution that if sources are subject to more stringent 
requirements under other provisions of the Act (e.g., section 111, part 
C, or SIP approved permit programs under part A), our partial approval 
of the SIP (including emission limitations and other requirements), 
would not excuse sources from meeting those other, more stringent 
requirements. Also, our partial approval of the SIP is not meant to 
imply any sort of applicability determination under other provisions of 
the Act (e.g., section 111, part C, or SIP approved permit programs 
under part A).

V. 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 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.

C. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 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 
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 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, 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.

D. Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This final rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
This action does not involve or impose any requirements that affect 
Indian Tribes. Thus, Executive Order 13175 does not apply to this rule.

E. Regulatory Flexibility

    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 partial approval rule will not have a significant impact on a 
substantial number of small entities because SIP approvals under 
section 110 and 301 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 a 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 flexibility 
analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The Clean Air Act forbids EPA to base 
its actions concerning SIPs on such grounds. Union Electric Co., v. 
U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
    Moreover, EPA's partial disapproval rule will not have a 
significant impact on a substantial number of small entities because 
the partial disapproval action affects only two sources of air 
pollution in East Helena, Montana: Asarco and American Chemet. Only a 
limited number of sources are impacted by this action. Therefore, I 
certify that this action will not have a significant economic impact on 
a substantial number of small entities. Furthermore, as explained in 
this action, the submission does not meet the requirements of the Clean 
Air Act and EPA cannot approve the submission. EPA has no option but to 
partially disapprove the submittal. The partial disapproval will not 
affect any existing State requirements applicable to the entities. 
Federal disapproval of a State submittal does not affect its State 
enforceability.

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

[[Page 32766]]

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 partial approval and partial 
disapproval actions promulgated do 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 partially approves and partially 
disapproves 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 the Congress and to the Comptroller General of the 
United States. Section 804, however, exempts from section 801 the 
following types of rules: Rules of particular applicability; rules 
relating to agency management or personnel; and rules of agency 
organization, procedure, or practice that do not substantially affect 
the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA 
is not required to submit a rule report regarding this action under 
section 801 because this is a rule of particular applicability.

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 August 17, 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 52

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

    Dated: May 16, 2001.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.

    Part 52, 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)(51) to read 
as follows:


Sec. 52.1370  Identification of plan.

* * * * *
    (c) * * *
    (51) The Governor of Montana submitted the East Helena Lead SIP 
revisions with letters dated August 16, 1995, July 2, 1996, and October 
20, 1998. The revisions address regulating lead emissions from Asarco, 
American Chemet, and re-entrained road dust from the streets of East 
Helena.
    (i) Incorporation by Reference.
    (A) Board order issued on August 28, 1998, by the Montana Board of 
Environmental Review adopting and incorporating the August 13, 1998 
stipulation of the Montana Department of Environmental Quality and 
Asarco.
    (B) Board order issued on June 26, 1996, by the Montana Board of 
Environmental Review adopting and incorporating the June 11, 1996 
stipulation of the Montana Department of Environmental Quality and 
Asarco including exhibit A and attachments to the stipulation, 
excluding paragraphs 15 and 16 of the stipulation, and excluding the 
following:
    (1) The words, ``or an equivalent procedure'' in the second and 
third sentences in section 2(A)(22) of exhibit A;
    (2) The words, ``or an equivalent procedure'' in the second and 
third sentences in section 2(A)(28) of exhibit A;
    (3) The words, ``or an equivalent procedure'' in the second 
sentence in section 5(G) of exhibit A;
    (4) The sentence, ``Any revised documents are subject to review and 
approval by the Department as described in section 12,'' from section 
6(E) of exhibit A;
    (5) The words, ``or a method approved by the Department in 
accordance with the Montana Source Testing Protocol and Procedures 
Manual,'' shall be used to measure the volumetric flow rate at each 
location identified in section 7(A)(2) of exhibit A;
    (6) The sentence, ``Such a revised document shall be subject to 
review and approval by the Department as described in section 12,'' in 
section 11(C) of exhibit A;
    (7) The sentences, ``This revised Attachment shall be subject to 
the review and approval procedures outlined in section 12(B). The 
Baghouse Maintenance Plan shall be effective only upon full approval of 
the plan, as revised. This approval shall be obtained from the 
Department by January 6, 1997. This deadline shall be extended to the 
extent that the Department has exceeded the time allowed in section 
12(B) for its review and approval of the revised document,'' in section 
12(A)(7) of exhibit A;
    (8) Section 12(B) of exhibit A.
    (C) Board order issued on August 4, 1995, by the Montana Board of 
Environmental Review adopting and incorporating the June 30, 1995 
stipulation of the Montana Department of Environmental Quality and 
American Chemet including exhibit A to the stipulation, excluding 
paragraph 20 of the stipulation.
    (ii) Additional material.
    (A) All portions of the August 16, 1995 East Helena Pb SIP 
submitted other than the orders, stipulations and exhibit A's and 
attachments to the stipulations.
    (B) All portions of the July 2, 1996 East Helena Pb SIP submitted 
other than

[[Page 32767]]

the orders, stipulations and exhibit A's and attachments to the 
stipulations.
    (C) All portions of the October 20, 1998 East Helena Pb SIP 
submitted other than the orders, stipulations and exhibit A's and 
attachments to the stipulations.
    (D) November 16, 1999 letter from Art Compton, Division 
Administrator, Planning, Prevention and Assistance Division, Montana 
Department of Environmental Quality, to Richard R. Long, Director, Air 
and Radiation Program, EPA Region VIII.
    (E) September 9, 1998 letter from Richard A. Southwick, Point 
Source SIP Coordinator, Montana Department of Environmental Quality, to 
Richard R. Long, Director, Air and Radiation Program, EPA Region VIII.

[FR Doc. 01-15142 Filed 6-15-01; 8:45 am]
BILLING CODE 6560-50-P