[Federal Register Volume 66, Number 156 (Monday, August 13, 2001)]
[Rules and Regulations]
[Pages 42425-42427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19871]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52, 60, 61 and 62

[MT-001-0040a; FRL-7026-1a]


Approval and Promulgation of Air Quality Implementation Plans; 
Montana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Withdrawal of direct final rule.

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SUMMARY: On June 15, 2001, EPA published a direct final rule (66 FR 
32545) partially approving and partially disapproving, and a parallel 
proposed rule (66 FR 32594) proposing to partially approve and 
partially disapprove, State Implementation Plan (SIP) revisions 
submitted by the Governor of Montana on September 19, 1997; December 
10, 1997; April 14, 1999; December 6, 1999; and March 3, 2000. These 
submitted revisions are intended to recodify and modify the State's air 
quality rules so that they are consistent with Federal requirements, 
minimize repetition in the air quality rules, and clarify existing 
provisions. They also contain Yellowstone County's Local Regulation 
No.002--Open Burning. Also, in our June 15, 2001 publication, EPA 
announced that on May 16, 2001, we delegated the authority for the 
implementation and enforcement of the New Source Performance Standards 
(NSPS) to the State. EPA also updated the NSPS and National Emissions 
Standards for Hazardous Air Pollutants (NESHAP) ``Status of Delegation 
Tables'' and the names and addresses of the Regional Office and State 
Offices in the Region. EPA also updated regulations to indicate that 
Montana provided a negative declaration. The direct final and proposed 
rule preambles explained that the direct final rule was to become 
effective on August 14, 2001. However, if EPA received an adverse 
comment by July 16, 2001, EPA would publish a timely withdrawal of the 
direct final rule and it would not take effect. Only

[[Page 42426]]

the June 15, 2001, parallel proposed rule preamble also stated that EPA 
would address all public comments in a subsequent final rule based on 
the proposed rule and that EPA would not institute a second comment 
period. Even though EPA did not receive adverse comments on the June 
15, 2001, actions, EPA is withdrawing the June 15, 2001, direct final 
rule because the direct final and parallel proposed rules contain a 
number of errors that we have independently identified and want to 
correct before the direct final rule would otherwise become effective 
on August 14, 2001. EPA will issue another direct final rule and a 
parallel proposed rule correcting these errors and addressing the 
Governor of Montana's September 19, 1997, December 10, 1997, April 14, 
1999, December 6, 1999, and March 3, 2000, submittals.

DATES: As of August 13, 2001, EPA withdraws the direct final rule 
published at 66 FR 32545.

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 8, 999 
18th Street, Suite 300, Denver, Colorado, 80202.

FOR FURTHER INFORMATION CONTACT: Laurie Ostrand, EPA Region 8, (303) 
312-6437.

SUPPLEMENTARY INFORMATION: On June 15, 2001, EPA published a direct 
final rule (66 FR 32545) (FR Doc. 01-15027) partially approving and 
partially disapproving, and a parallel proposed rule (66 FR 32594) (FR 
Doc. 01-15028) proposing to partially approve and partially disapprove, 
State Implementation Plan (SIP) revisions submitted by the Governor of 
Montana on September 19, 1997; December 10, 1997; April 14, 1999; 
December 6, 1999; and March 3, 2000. The direct final rule was 
scheduled to become effective on August 14, 2001 (except that the 
delegation of the NSPS to Montana had already become effective on May 
16, 2001). However, our preambles to the rules explained that if we 
received an adverse comment on our action by July 16, 2001, we would 
issue a timely withdrawal of the direct final rule and it would not 
take effect. In addition, only one of the June 15, 2001, rules--the 
parallel proposed rule--further explained that we would then issue 
another rule responding to any adverse comments and taking final action 
on the parallel proposal without instituting another public comment 
period. Our June 15, 2001, actions contained the following specific 
errors:
    1. The June 15, 2001 direct final rule contained incorrect and 
misleading language in the Administrative Requirements section. 
Specifically, on page 32553, third column, the paragraph labeled ``G. 
Submission to Congress and the Comptroller General'' is incorrect in 
stating that ``EPA is not required to submit a rule report regarding 
this action under section 801 because this is a rule of particular 
applicability.'' Instead, the paragraph should have stated that EPA 
will submit a report containing the rule and other required information 
to the U.S. Senate, the U.S. House of Representatives, and the 
Comptroller General of the U.S., prior to publication of the rule in 
the Federal Register. Our subsequent direct final rule will correct 
this inaccuracy.
    2. The June 15, 2001, preamble to the direct final rule stated our 
intent to partially disapprove two of the State's air quality 
regulations, specifically, Administrative Rules of Montana (ARM) 
17.8.309(5)(b) and 17.8.310(3)(e). See 66 FR at 32547, 32552. Although 
we indicated in the preamble that we intended to partially disapprove 
the rules, we failed to promulgate necessary corresponding regulatory 
text in 40 CFR part 52 subpart BB indicating that the State rules were 
to be disapproved. The subsequent direct final rule and parallel 
proposed rule will correct this error.
    3. The June 15, 2001, direct final rule failed to identify the 
existence of or otherwise accurately cross-reference the parallel 
proposed rule published on the same day, or indicate that if we 
received an adverse comment--in addition to withdrawing the direct 
final rule--we would address all comments in a subsequent final rule 
based on the proposed rule, without instituting a second comment 
period. As a result, readers who reviewed our direct final rule alone, 
without knowledge of the parallel proposed rule, could not have been 
fully informed of our rulemaking process for this action. If, on the 
other hand, a reader reviewed both the direct final rule and the 
parallel proposed rule, she or he would have been presented with 
inconsistent descriptions of the process to be followed after 
submission of an adverse comment. Our failure to clearly and accurately 
describe the rulemaking process will be corrected in the subsequent 
direct final and parallel proposed rules.
    4. The Summary of the June 15, 2001, proposed rule contains an 
inaccurate and misleading description of the proposed action. 
Specifically, the Summary indicated that we were proposing to take 
direct final action, which is confusing and not in fact what we 
intended. Instead, the proposal should have simply stated that we were 
proposing to take the actions described in the Summary. The Summary 
also indicated that we were ``approving'' other provisions, thus 
suggesting that some things were not only being proposed but were the 
subject of final action in that proposed rule, when it should have 
stated that we were proposing to approve those provisions. Our 
subsequent parallel proposed rule will correct this mistake.
    5. The June 15, 2001 preambles to the direct final and proposed 
rules stated our intent to approve most of the State's recodified air 
quality rules, including the State's recodified stack height rules. 
However, in another pending SIP action in Montana (Billings/Laurel), we 
have questioned aspects of the Montana stack height regulations that 
are repeated in the recodification. We do not believe we should act on 
the recodification of these rules before we give full consideration to 
relevant issues in the context of our ongoing action on the Billings/
Laurel SIP, where the issues first arose and should be resolved. The 
direct final rule's inadvertent approval of the recodification was 
premature, and should not yet become effective. Accordingly, the 
subsequent direct final rule will indicate that we will act on the 
recodified stack height rules at a later date. This deferral of action 
will have no effect on the existing approved Montana stack height SIP.
    We believe that the unique circumstances of the combination of 
errors in the June 15, 2001, direct final and parallel proposed rules 
for this action are best remedied, in this case, by a withdrawal of the 
direct final rule in advance of its taking effect, as would have 
occurred if someone had filed a comment objecting to the incorrect and 
misleading preamble language and the mistaken omission of regulatory 
language or the inadvertent and premature approval of the recodified 
stack height regulations. In addition, since the parallel proposed rule 
also contained an inaccurate and misleading description of the nature 
of that action and since we are withdrawing the direct final rule to 
which it was paired, it is appropriate to withdraw that rule. Our 
subsequent direct final and parallel proposed rules will clarify how we 
are treating the SIP submission, and will contain the necessary 
regulatory language to fully promulgate the direct final rule, should 
it become effective. Today's withdrawal action does not affect the 
status of the May 16, 2001, delegation of the NSPS to Montana, which 
had already become effective.
    In the ``Proposed Rules'' section of today's Federal Register 
publication, we

[[Page 42427]]

are withdrawing the proposed rule published on June 15, 2001.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

40 CFR Part 60

    Environmental protection, Air pollution control, Aluminum, Ammonium 
sulfate plants, Beverages, Carbon monoxide, Cement industry, Coal, 
Copper, Drycleaners, Electric power plants, Fertilizers, Fluoride, 
Gasoline, Glass and glass products, Grains, Graphic arts industry, 
Household appliances, Insulation, Intergovernmental relations, Iron, 
Lead, Lime, Metallic and nonmetallic mineral processing plants, Metals, 
Motor vehicles, Natural gas, Nitric acid plants, Nitrogen dioxide, 
Paper and paper products industry, Particulate matter, Paving and 
roofing materials, Petroleum, Phosphate, Plastics materials and 
synthetics, Reporting and recordkeeping requirements, Sewage disposal, 
Steel, Sulfur oxides, Tires, Urethane, Vinyl, Waste treatment and 
disposal, Wool, Zinc.

40 CFR Part 61

    Environmental protection, Air pollution control, Arsenic, Asbestos, 
Benzene, Beryllium, Hazardous substances, Mercury, Vinyl chloride.

40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Fluoride, Intergovernmental relations, Phosphate 
fertilizer plants, Reporting and recordkeeping requirements.

    Dated: July 31, 2001.
Jack W. McGraw,
Acting Regional Administrator, Region 8.


    Accordingly, under the authority of 42 U.S.C. 7401-7671q, the 
direct final rule (66 FR 32545) (FR Doc. 01-15027) published on June 
15, 2001, is withdrawn.

[FR Doc. 01-19871 Filed 8-10-01; 8:45 am]
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