[Federal Register Volume 66, Number 221 (Thursday, November 15, 2001)]
[Rules and Regulations]
[Pages 57391-57394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28189]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MT-001-0039a & MT-001-0041a; FRL-7086-3]


Clean Air Act Approval and Promulgation of Air Quality 
Implementation Plan for Montana; Revisions to the Missoula City-County 
Air Pollution Control Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA approves the State implementation plan (SIP) revisions 
regarding the Missoula City-County Air Pollution Control Program, as 
submitted by the Governor of Montana with a letter dated April 30, 
2001. On November 17, 2000, the Montana Board of Environmental Review 
(MBER) adopted the revisions to the Missoula program rules regarding 
program authority and administration, definitions, failure to attain 
standards, emergency episode planning, general provisions, standards 
for stationary sources (including air quality permit program), outdoor 
burning, fugitive particulate, solid fuel burning devices, fuels, motor 
vehicles, enforcement and administrative procedures, and penalties. 
EPA's approval makes these revisions federally enforceable. In 
addition, the State requested that rules of the Missoula program that 
are not appropriate for incorporation into the SIP be removed from the 
federally approved plan. Finally, the Governor's April 30, 2001 
submittal consists of several other revisions to Montana regulations, 
which will be handled separately.

DATES: This direct final rule is effective on January 14, 2002 without 
further notice, unless EPA receives adverse comment by December 17, 
2001. If adverse comment is received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register informing 
the public that the rule will not take effect.

ADDRESSES: Mail written comments to Richard R. Long, Director, Air and 
Radiation Program, Mailcode 8P-AR, Environmental Protection Agency, 
Region VIII, 999 18th Street, Suite 300, Denver, Colorado 80202-2405. 
Documents relevant to this action can be perused during normal business 
hours at the Air and Radiation Program, Environmental Protection 
Agency, Region VIII, 999 18th Street, Suite 300, Denver, Colorado 
80202-2405. Copies of the incorporation by reference material are 
available at the Air and Radiation Docket and Information Center, 
Environmental Protection Agency, 401 M Street, SW., Washington, DC 
20460. Copies of the State documents relevant to this action are 
available at the Montana Department of Environmental Quality, 1520 E. 
6th Avenue, Helena, Montana 59620-0901.

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

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

I. Background

    EPA approved the Missoula nonattainment area SIP for particulate 
matter with an aerodynamic diameter less than or equal to a nominal 10 
micrometers (PM10) on January 18, 1994 (59 FR 2537-2540). 
Subsequent

[[Page 57392]]

revisions to the Missoula PM10 SIP were approved as follows. 
On December 13, 1994 (59 FR 64133), we approved revisions to the 
Missoula City-County Air Pollution Control Program regulations related 
to, among other things, PM10 contingency measures, 
inspections, emergency procedures, minor source construction 
permitting, open burning and wood waste burners. On August 30, 1995 (60 
FR 45051), we approved revisions to the Missoula City-County Air 
Pollution Control Program regulations related to emergency procedures; 
the paving of roads, driveways, and parking lots; and solid fuel 
burning devices. On January 3, 2000 (65 FR 16), we approved revisions 
to the Missoula program related to general definitions, open burning, 
and criminal penalties.
    EPA approved the Missoula carbon monoxide (CO) nonattainment area 
plan on January 16, 1986 (51 FR 2397). Subsequent revisions were 
approved on November 8, 1994 (59 FR 55585) regarding the oxygenated 
gasoline program in Missoula, December 13, 1994 (59 FR 64133) regarding 
CO contingency measures, and December 6, 1999 (64 FR 68034) regarding 
an update to the SIP narrative.

II. Analysis of State Submission

A. Procedural Background

    The Act requires States to follow certain procedures in developing 
implementation plans and plan revisions for submission to EPA. Sections 
110(a)(2) and 110(l) of the Act provide that each implementation plan a 
State submits must be adopted after reasonable notice and public 
hearing.
    We also must determine whether a submittal is complete and 
therefore warrants further review and action (see section 110(k)(1) of 
the Act and 57 FR 13565). Our completeness criteria for SIP submittals 
can be found in 40 CFR part 51, appendix V. We attempt to determine 
completeness within 60 days of receiving a submission. However, the law 
considers a submittal complete if we don't determine completeness 
within six months after we receive it.
    To provide for public comment, the Montana Board of Environmental 
Review (MBER), after providing adequate notice, held a public hearing 
on November 17, 2000 to address the revisions to the Missoula program. 
At the conclusion of the public hearing, the MBER approved the 
revisions by teleconference which was affirmed by a Board Order dated 
November 30, 2000. By approving the revisions, the MBER made them 
enforceable at the State level to satisfy the requirements of section 
110(a)(2)(E) of the Federal Clean Air Act, U.S.C. 7410(a)(2)(E). On 
February 20, 2001, after providing adequate notice, the Montana 
Department of Environmental Quality (MDEQ) held a hearing to provide 
for public comment on the inclusion of the Missoula regulation 
revisions in the SIP.
    The Governor of Montana submitted the revisions to the Missoula 
City-County Air Pollution Control Program regulations to EPA with a 
letter dated April 30, 2001. EPA determined that the SIP submittal was 
administratively and technically complete on June 29, 2001.

B. November 17, 2000 Revisions

    The revisions to the Missoula City-County Air Pollution Control 
Program regulations include extensive renumbering of the regulations. 
In addition, revisions were made to chapters regarding program 
authority and administration, failure to attain standards, emergency 
procedures, general provisions, standards for stationary sources 
(including air quality permit program), outdoor burning, fugitive 
particulates, solid fuel burning devices, fuels, motor vehicles, 
enforcement and administrative procedures, and penalties. In most 
cases, the rule revisions are either editorial in nature, allow for 
easier use through reorganization, clarify existing policy, and/or 
ensure consistency with the Montana and Federal Clean Air Acts. Since 
the State is constantly revising its rules, the county must 
periodically update its rules to stay consistent. Finally, several 
provisions are being removed because they were not appropriate for 
incorporation into the Federally approved SIP for various reasons. The 
more substantive revisions are discussed in detail below.
1. Revisions to Chapter 4, Missoula County Air Stagnation and Emergency 
Episode Avoidance Plan
    Numerous revisions were made to the emergency episode avoidance 
plan to ensure that the county plan is as stringent as, or consistent 
with, the State's plan. For example, new requirements were added for 
emergency episode operations planning, and a new rule states that the 
county may require sources to periodically review and update their 
abatement plans, and submit them for review and approval. In addition, 
there are some new control activities required at the various stages of 
the emergency episode avoidance plan. These revisions satisfy Federal 
Clean Air Act requirements and are approvable.
2. Revisions to Chapter 6, Standards for Stationary Sources, Subchapter 
1, Air Quality Permits for Air Pollutant Sources
    The construction and operating permits programs were combined into 
one ``air quality permit'' program. Requirements for public review of 
air quality permit applications were added, to be consistent with 
Federal requirements. Also, clarification was made that the conditions 
of a construction permit are permanent, so there is always an 
enforceable permit applicable to the source. Accordingly, a source is 
required to renew its combined permit every 5 years (unless another 
time line is warranted because additional construction that is not 
covered by an existing permit begins on the source, a change in 
operation could result in an increase of emissions at the source, the 
permit is revoked or modified, or the permit clearly states otherwise). 
A source whose permit has expired may not operate without the issuance 
of a renewal permit. An exemption from the requirement to obtain a 
construction permit for routine maintenance and repair of equipment was 
clarified such that it does not apply to the replacement of equipment. 
In addition, definitions for ``commencement of construction'' and 
``source'' have been added to be consistent with Federal requirements. 
These revisions satisfy Federal requirements and are approvable. Please 
note that in addition to meeting Missoula's permitting requirements, 
major sources subject to Prevention of Significant Deterioration (PSD) 
permitting requirements and several other source categories must obtain 
permits to construct from the State of Montana, and all sources subject 
to Title V of the Clean Air Act must obtain operating permits from the 
State.
3. Revisions to Chapter 7, Outdoor Burning
    Numerous revisions were made to Chapter 7 to clarify the meaning of 
Missoula City-County Department of Health's (MCCDH's) interpretation of 
certain rules. For instance, the firefighter training rule now 
specifies that the MCCDH will inspect every structure before it is 
burned. While this had been MCCDH practice, it was not clear in the 
rules previously. In addition, Impact Zone M was increased in area. The 
purpose of the Impact Zone is to help protect the ambient air standards 
in a populated area where smoke is only one of many air pollution 
sources. It was originally established as a way of prioritizing the 
scrutiny given

[[Page 57393]]

to large burns occurring in the autumn. The adjustment to the boundary 
now will take inversion effects into account and thus protect the 
public, as well as mitigate harm, by preventing thick smoke events 
caused by air flows draining down valleys into populated areas. Also, 
revisions allow for prescribed wildland burning in the Impact Zone only 
on days of good dispersion throughout the period of smoke generation 
(as opposed to just the day that the fire is lit). In addition, 
provisions were added for bonfire permits, Christmas tree waste outdoor 
burning permits (to be consistent with State requirements), and public 
notice requirements for outdoor burning permit applications. The 
revisions to this chapter meet Federal Clean Air Act requirements and 
are approvable.
4. Revisions to Chapter 8, Fugitive Particulate
    The definition of ``approved de-icer'' was revised to allow for a 
``magnesium chloride based product or other product with similar dust 
suppression properties * * *'' as opposed to strictly requiring a 
magnesium chloride based product. Since any alternative will have to 
demonstrate the same level of dust suppression, EPA believes this 
revision is approvable. In addition, some new rules were added to this 
chapter. One rule addresses construction sites and specifies what 
reasonable precautions must be taken to control fugitive particulate 
matter emissions. Another new section requires new roads to be paved in 
the Air Stagnation Zone. Also, provisions for additional options to 
control fugitive emissions from parking lots in the Air Stagnation Zone 
have been expanded. However, fugitive emissions from parking lots 
cannot increase over what they would be if paving were the control 
measure utilized. The revisions to this chapter meet Federal Clean Air 
Act requirements and are approvable.
5. Revisions to Chapter 9, Solid Fuel Burning Devices
    For the most part, the changes made to this chapter were editorial 
in nature or merely clarified the current implementation of the program 
(e.g., removing provisions that no longer apply because certain types 
of solid fuel burning devices are no longer allowed to be installed in 
the area). The substantive changes made to this already stringent 
program make it even more stringent. Revisions to this chapter include 
a streamlined process for certifying that woodstoves are removed at the 
time of the sale of a property (when they are required to be removed). 
Also, a requirement was added that woodstoves sold in the Air 
Stagnation Zone must be labeled if they cannot be lawfully installed in 
the Air Stagnation Zone. These changes are approvable.
6. Rules Being Removed from the Federally Approved SIP
    The State of Montana originally submitted Missoula's National 
Standards of Performance for New Stationary Sources (NSPS) and 40 CFR 
part 61 National Emissions Standards for Hazardous Air Pollutants (part 
61 NESHAPs) regulations (Rules 1423 and 1424 under the old numbering 
system) for approval by EPA as part of the Montana SIP. EPA approved 
this submittal on August 30, 1995 (60 FR 45051). With a November 14, 
1997 SIP submittal, the State requested revisions to these rules. 
Subsequent to the 1997 submittal, EPA and the State agreed that these 
rules should be removed from the SIP because programs for which EPA can 
delegate authority to the State, such as NSPS and NESHAPs and which the 
State, in turn, can delegate authority to the County, if appropriate, 
should not be incorporated into the SIP. Therefore, with its April 30, 
2001 submittal, the State requested that Missoula's NSPS and part 61 
NESHAPs be removed from the Federally approved SIP.
    In addition, rules that are not generally related to attainment or 
maintenance of the National Ambient Air Quality Standards (NAAQS) also 
should not be incorporated in the SIP. Therefore, although the State of 
Montana originally submitted Missoula's fluoride emissions standards 
rule (Rule 1419 under the old numbering system) for approval by EPA 
through the SIP process (see 59 FR 2537, January 18, 1994), with its 
April 30, 2001 submittal, the State requested that this provision also 
be removed from the Federally approved SIP.
    The removal of these rules conforms with the requirements of 
section 110(k)(6) of the Federal Clean Air Act and is approvable. 
Finally, with the removal of the NSPS and part 61 NESHAPs rules, EPA 
has completed its actions on the November 14, 1997 SIP submittal.

III. Section 110(l) Analysis

    Section 110(l) of the Clean Air Act states that a SIP revision 
cannot be approved if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress 
toward attainment of the NAAQS or any other applicable requirement of 
the Act. EPA approved the Missoula PM10 attainment 
demonstration on January 18, 1994 (59 FR 2537) and subsequent revisions 
to the Missoula PM10 SIP were approved on December 13, 1994 
(59 FR 64133), August 30, 1995 (60 FR 45051), and January 3, 2000 (65 
FR 16). EPA approved the Missoula nonattainment area plan which 
provided for the attainment of the CO NAAQS (i.e., attainment 
demonstration) on January 16, 1986 (51 FR 2397) and subsequent 
revisions to the Missoula CO SIP were approved on November 8, 1994 (59 
FR 55585), December 13, 1994 (59 FR 64133), and December 6, 1999 (64 FR 
68034). The area has been maintaining the NAAQS for many years. EPA has 
determined that the revisions to the Missoula City-County Air Pollution 
Control Program that are the subject of this document do not interfere 
with the federally approved attainment demonstrations for the area, but 
will enhance the area's efforts in maintaining the NAAQS since certain 
requirements in the local regulations have been strengthened. 
Therefore, section 110(l) requirements are satisfied.

IV. Final Action

    EPA is approving the revisions to the Missoula City-County Air 
Pollution Control Program, as submitted by the Governor with a letter 
dated April 30, 2001. The revisions being approved include extensive 
renumbering of the program and completely replace the previous version 
of the program. In addition, the rules of the Missoula program that are 
not appropriate for incorporation into the SIP are being removed from 
the federally approved plan. The approved version of the Missoula 
program is as follows: Chapter 1, Program Authority and Administration; 
Chapter 2, Definitions; Chapter 3, Failure to Attain Standards; Chapter 
4, Missoula County Air Stagnation and Emergency Episode Avoidance Plan; 
Chapter 5, General Provisions, Rules 5.101-5.103, 5.105-5.106, and 
5.112; Chapter 6, Standards for Stationary Sources, Subchapter 1, Air 
Quality Permits for Air Pollutant Sources, Rules 6.101-6.103 and 6.105-
6.109, Subchapter 5, Emission Standards, Rules 6.501-6.504, Subchapter 
6, Incinerators, Rules 6.601-6.604, and Subchapter 7, Wood Waste 
Burners, Rules 6.701-6.703; Chapter 7, Outdoor Burning; Chapter 8, 
Fugitive Particulate; Chapter 9, Solid Fuel Burning Devices; Chapter 
10, Fuels; Chapter 11, Motor Vehicles; Chapter 14, Enforcement and 
Administrative Procedures; Chapter 15, Penalties; Appendix A, Maps; 
Appendix B, Missoula's Emergency Episode Avoidance Plan Operations and 
Procedures; and Appendix D,

[[Page 57394]]

Oxygenated Fuels Program Sampling Requirements for Blending Facilities.

V. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action 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. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 January 14, 2002. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: October 5, 2001.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.


    Chapter I, title 40 of the Code of Federal Regulations is amended 
as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

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

Subpart BB--Montana

    2. Section 52.1370 is amended by adding paragraph (c)(54) to read 
as follows:


Sec. 52.1370  Identification of plan.

* * * * *
    (c) * * *
    (54) The Governor of Montana submitted revisions to the Missoula 
City-County Air Pollution Control Program with a letter dated April 30, 
2001. The revisions completely replace the previous version of the 
program regulations in the SIP.
    (i) Incorporation by reference.
    (A) November 17, 2000 Montana Board of Environmental Review order 
approving revisions to the Missoula City-County Air Pollution Control 
Program regulations.
    (B) Missoula City-County Air Pollution Control Program regulations 
as follows: Chapter 1, Program Authority and Administration; Chapter 2, 
Definitions; Chapter 3, Failure To Attain Standards; Chapter 4, 
Missoula County Air Stagnation and Emergency Episode Avoidance Plan; 
Chapter 5, General Provisions, Rules 5.101-5.103, 5.105-5.106, and 
5.112; Chapter 6, Standards for Stationary Sources, Subchapter 1, Air 
Quality Permits for Air Pollutant Sources, Rules 6.101-6.103 and 6.105-
6.109, Subchapter 5, Emission Standards, Rules 6.501-6.504, Subchapter 
6, Incinerators, Rules 6.601-6.604, and Subchapter 7, Wood Waste 
Burners, Rules 6.701-6.703; Chapter 7, Outdoor Burning; Chapter 8, 
Fugitive Particulate; Chapter 9, Solid Fuel Burning Devices; Chapter 
10, Fuels; Chapter 11, Motor Vehicles; Chapter 14, Enforcement and 
Administrative Procedures; Chapter 15, Penalties; Appendix A, Maps; 
Appendix B, Missoula's Emergency Episode Avoidance Plan Operations and 
Procedures; and Appendix D, Oxygenated Fuels Program Sampling 
Requirements for Blending Facilities, effective November 17, 2000.
[FR Doc. 01-28189 Filed 11-14-01; 8:45 am]
BILLING CODE 6560-50-P