[Federal Register Volume 68, Number 99 (Thursday, May 22, 2003)]
[Rules and Regulations]
[Pages 27908-27911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12616]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MT-001-0010; MT-001-0028; FRL-7489-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Montana; Billings/Laurel Sulfur Dioxide State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is partially approving some, and limitedly approving and 
limitedly disapproving other, revisions to the Billings/Laurel sulfur 
dioxide (SO2) State Implementation Plan (SIP) submitted by the State of 
Montana on July 29, 1998 and May 4, 2000. The May 4, 2000 SIP revision 
was submitted to satisfy earlier commitments made by the Governor. The 
intended effect of this action is to make federally enforceable those 
provisions that EPA is partially and limitedly approving, and to 
limitedly disapprove those provisions that are not fully approvable. 
EPA is taking this action under sections 110 and 179 of the Clean Air 
Act (Act).

DATES: This final rule is effective June 23, 2003.

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 and copies of the 
Incorporation by Reference material may be inspected at the Air and 
Radiation Docket and Information Center, U.S. Environmental Protection 
Agency, Room B-108 (Mail Code 6102T), 1301 Constitution Ave., NW., 
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: Laurie Ostrand, EPA, Region 8, (303) 
312-6437.

SUPPLEMENTARY INFORMATION:

Table of Contents

Definitions
I. Summary of EPA's Final Action on Portions of the State of 
Montana's July 29, 1998 Submittal and all of the May 4, 2000 
Submittal
II. Background
III. Statutory and Executive Order Reviews

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials 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 initials CO mean or refer to carbon monoxide.
    (iii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iv) The initials SIP mean or refer to State Implementation Plan.
    (v) The initials SO2 mean or refer to sulfur dioxide.
    (vi) The words State or Montana mean the State of Montana, unless 
the context indicates otherwise.
    (vii) The initials SWS mean or refer to sour water stripper.
    (viii) The initials YELP mean or refer to the Yellowstone Energy 
Limited Partnership.

I. Summary of EPA's Final Action on Portions of the State of Montana's 
July 29, 1998 Submittal and All of the May 4, 2000 Submittal

    We are approving the following provisions:
    [sbull] YELP's emission limits in sections 3(A)(1) through (3) and 
reporting requirements in section 7(C)(1)(b) of YELP's exhibit A 
submitted on May 4, 2000.
    [sbull] Provisions related to the burning of SWS overheads in the 
F-1 Crude Furnace (and exhausted through the F-2 Crude/Vacuum Heater 
stack) at ExxonMobil in sections 3(E)(4) and 4(E) (excluding ``or in 
the flare'' and ``or the flare'' in both sections), 3(A)(2), and 
3(B)(3) of ExxonMobil's exhibit A, submitted on July 29, 1998 and 
method 6A-1 of attachment 2 of

[[Page 27909]]

ExxonMobil's exhibit A, submitted on May 4, 2000.
    [sbull] Minor changes in sections 3, 3(A) and 3(B) (only the 
introductory paragraphs); and sections 3(E)(3), 6(B)(7), 7(B)(1)(d), 
7(B)(1)(j), 7(C)(1)(b), 7(C)(1)(d), 7(C)(1)(f), and 7(C)(1)(l) of 
ExxonMobil's exhibit A, submitted on May 4, 2000.
    We are limitedly approving and limitedly disapproving the following 
provisions:
    [sbull] Provisions related to the fuel gas combustion emission 
limitations at ExxonMobil in sections 3(B)(2), 4(B), and 6(B)(3) of 
ExxonMobil's exhibit A, submitted on July 29, 1998 and section 3(A)(1) 
of ExxonMobil's exhibit A, submitted on May 4, 2000.
    [sbull] Provisions related to ExxonMobil's coker CO-boiler emission 
limitation in sections 2(A)(11)(d), 3(B)(1) and 4(C) of ExxonMobil's 
exhibit A, submitted on May 4, 2000.
    [sbull] Provisions related to the burning of SWS overheads at Cenex 
in sections 3(B)(2) and 4(D) (excluding ``or in the flare'' and ``or 
the flare'' in both sections), 3(A)(1)(d), and 4(B) of Cenex's exhibit 
A, submitted on July 29, 1998, and method 6A-1 of attachment 
2 of Cenex's exhibit A, submitted on May 4, 2000.
    We caution that if sources are subject to more stringent 
requirements under other provisions of the Act (e.g., section 111 new 
source performance standards; Title I, Part C, (prevention of 
significant deterioration); or SIP-approved permit programs under Title 
I, Part A), our approval and limited approval of the SIP (including 
emission limitations and other requirements), would not excuse sources 
from meeting these other more stringent requirements. Also, our action 
on this SIP is not meant to imply any sort of applicability 
determination under other provisions of the Act (e.g., section 111; 
Title I, Part C; or SIP-approved permit programs under Title I, Part 
A).

II. Background

    On May 2, 2002, 67 FR 22242, we proposed action on portions of the 
State of Montana's July 29, 1998 submittal and all of the May 4, 2000 
submittal. No comments were received on our proposed action. We are 
finalizing our action as proposed. For further information regarding 
the basis for this action, the reader should refer to our proposed 
action.
    Once we approve a SIP, or parts of a SIP, the portions approved are 
legally enforceable by us and citizens under the Act. Once we limitedly 
approve/disapprove a SIP, or parts of a SIP, the portions limitedly 
approved/disapproved are also legally enforceable by us and citizens 
under the Act. Under a limited approval/disapproval action, we approve 
and disapprove the entire rule even though parts of it do and parts do 
not satisfy requirements under the Act. The rule remains a part of the 
SIP, however, even though there is a disapproval, because the rule 
strengthens the SIP. The disapproval only concerns the failure of the 
rule to meet specific requirements of the Act and does not affect 
incorporation of the rule as part of the approved, federally 
enforceable SIP. By disapproving parts of the plan, we are determining 
that the requirements necessary to demonstrate attainment in the area 
have not been met and we may develop a plan or parts of a plan to 
assure that attainment will be achieved.
    EPA believes partially and limitedly approving the Billings/Laurel 
SO2 SIP meets the requirements of section 110(l) of the Act. The 
provisions of the plan that we are partially and limitedly approving 
strengthen the Montana SIP by providing specific emission limits for 
several SO2 sources in Billings/Laurel. This will achieve progress 
toward attaining the SO2 NAAQS.

III. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

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

B. Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must 
approve all ``collections of information'' by EPA. The Act defines 
``collection of information'' as a requirement for ``answers to * * * 
identical reporting or recordkeeping requirements imposed on ten or 
more persons * * *'' 44 U.S.C. 3502(3)(A). Because this rule does not 
impose an information collection burden, the Paperwork Reduction Act 
does not apply.

C. 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 partial and limited approval rule will not have a significant 
impact on a substantial number of small entities because SIP approvals 
under section 110 and subchapter I, part D of the Clean Air Act do not 
create any new requirements but simply approve requirements that the 
State is already imposing. 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 limited disapproval will not have a significant 
impact on a substantial number of small entities because the limited 
disapproval action only affects two industrial sources of air pollution 
in Billings/Laurel, Montana: Cenex Harvest Cooperatives and ExxonMobil 
Company, USA. Only a limited number of sources are impacted by this 
action. Furthermore, as explained in this action, the submission does 
not meet the requirements of the Clean Air Act and EPA cannot approve 
the submission. The limited disapproval will not affect any existing 
State requirements applicable to the entities. Federal disapproval of a 
State submittal does not affect its State enforceability. Therefore, I 
certify that this action will not have a significant economic impact on 
a substantial number of small entities.

D. Unfunded Mandates Reform Act

    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 partial and limited approval and 
limited disapproval actions do not include a Federal mandate that may 
result in estimated costs of $100 million or more to either State, 
local, or tribal

[[Page 27910]]

governments in the aggregate, or to the private sector. This Federal 
action partially and limitedly approves and limitedly 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.

E. Executive Order 13132, Federalism

    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 partially or limitedly approves and limitedly disapproves 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.

F. Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    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.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. 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. This action does not involve or impose 
any requirements that affect Indian Tribes. Thus, Executive Order 13175 
does not apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental 
Health and Safety Risk

    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.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. 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.

J. Congressional Review Act

    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.

K. 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 July 21, 2003. 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, Reporting and recordkeeping 
requirements, Sulfur oxides.

    Dated: April 17, 2003.
Robert E. Roberts,

Regional Administrator, Region 8.

0
40 CFR part 52 is amended to read as follows:

[[Page 27911]]

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart BB--Montana

0
2. Section 52.1370 is amended by adding paragraph (c)(52) to read as 
follows:


Sec.  52.1370  Identification of plan

* * * * *
    (c) * * *
    (52) The Governor of Montana submitted sulfur dioxide 
(SO2) SIP revisions for Billings/Laurel on July 29, 1998 and 
May 4, 2000. EPA is approving some of the provisions of the July 29, 
1998 submittal that it did not approve before. The May 4, 2000 
submittal revises some previously approved provisions of the Billings/
Laurel SO2 SIP and adds new provisions.
    (i) Incorporation by reference.
    (A) Sections 3(B)(2) and 4(D) (excluding ``or the flare'' and ``or 
the flare'' in both sections), 3(A)(1)(d) and 4(B) of Cenex Harvest 
States Cooperatives' exhibit A to the stipulation between the Montana 
Department of Environmental Quality and Cenex Harvest States 
Cooperatives, adopted June 12, 1998 by Board Order issued by the 
Montana Board of Environmental Review.
    (B) Board Order issued March 17, 2000 by the Montana Board of 
Environmental Review adopting and incorporating the February 14, 2000 
stipulation between the Montana Department of Environmental Quality and 
Cenex Harvest States Cooperatives. This stipulation revises attachment 
2 to Cenex Harvest States Cooperatives' exhibit A to require 
the use of method 6A-1.
    (C) Sections 3(E)(4) and 4(E) (excluding ``or in the flare'' and 
``or the flare'' in both sections), 3(A)(2), 3(B)(2), 3(B)(3), 4(B) and 
6(B)(3) of Exxon's exhibit A to the stipulation between the Montana 
Department of Environmental Quality and Exxon, adopted June 12, 1998 by 
Board Order issued by the Montana Board of Environmental Review.
    (D) Board Order issued March 17, 2000, by the Montana Board of 
Environmental Review adopting and incorporating the February 14, 2000 
stipulation between the Montana Department of Environmental Quality and 
Exxon Mobil Corporation. The stipulation adds the following to Exxon 
Mobil Corporation's exhibit A: method 6A-1 of attachment 
2 and sections 2(A)(11)(d), 4(C), 7(B)(1)(j) and 7(C)(1)(l). 
The stipulation revises the following sections of Exxon Mobil 
Corporation's exhibit A: 3 (introductory text only), 3(A) (introductory 
text only), 3(A)(1), 3(B) (introductory text only), 3(B)(1), 3(E)(3), 
6(B)(7), 7(B)(1)(d), 7(C)(1)(b), 7(C)(1)(d), and 7(C)(1)(f).
    (E) Board Order issued on March 17, 2000, by the Montana Board of 
Environmental Review adopting and incorporating the February 14, 2000 
stipulation between the Montana Department of Environmental Quality and 
Yellowstone Energy Limited Partnership (YELP). The stipulation revises 
the following sections of YELP's exhibit A: sections 3(A)(1) through 
(3) and 7(C)(1)(b).

0
3. In Sec.  52.1384, add paragraph (e) to read as follows:


Sec.  52.1384  Emission control regulations.

* * * * *
    (e) In 40 CFR 52.1370(c)(52), we approved portions of the Billings/
Laurel Sulfur Dioxide SIP for the limited purpose of strengthening the 
SIP. Those provisions that we limitedly approved are hereby limitedly 
disapproved. This limited disapproval does not prevent EPA, citizens, 
or the State from enforcing the provisions. This paragraph identifies 
those provisions of the Billings/Laurel SO2 SIP identified 
in 40 CFR 52.1370(c)(52) that have been limitedly disapproved.
    (1) Sections 3(B)(2) and 4(D) (excluding ``or in the flare'' and 
``or the flare'' in both sections, which was previously disapproved in 
paragraphs (d)(1)(i)(B) and (C) above), 3(A)(1)(d) and 4(B) of Cenex 
Harvest State Cooperatives' exhibit A to the stipulation between the 
Montana Department of Environmental Quality and Cenex Harvest State 
Cooperatives, adopted June 12, 1998 by Board Order issued by the 
Montana Board of Environmental Review.
    (2) Method 6A-1 of attachment 2 of Cenex Harvest 
State Cooperatives' exhibit A, as revised pursuant to the stipulation 
between the Montana Department of Environmental Quality and Cenex 
Harvest State Cooperatives, adopted by Board Order issued on March 17, 
2000, by the Montana Board of Environmental Review.
    (3) Sections 3(B)(2), 4(B), and 6(B)(3) of Exxon's exhibit A to the 
stipulation between the Montana Department of Environmental Quality and 
Exxon, adopted on June 12, 1998 by Board Order issued by the Montana 
Board of Environmental Review.
    (4) Sections 2(A)(11)(d), 3(A)(1), 3(B)(1) and 4(C) of Exxon Mobil 
Corporation's exhibit A, as revised pursuant to the stipulation between 
the Montana Department of Environmental Quality and Exxon Mobil 
Corporation, adopted by Board Order issued on March 17, 2000, by the 
Montana Board of Environmental Review.

[FR Doc. 03-12616 Filed 5-21-03; 8:45 am]
BILLING CODE 6560-50-P