[Federal Register Volume 69, Number 138 (Tuesday, July 20, 2004)]
[Proposed Rules]
[Pages 43371-43378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16448]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 60

[SIP NO. R08-OAR-2004-MT-0001; FRL-7790-1]


Approval and Disapproval and Promulgation of Air Quality 
Implementation Plans; Montana; Revisions to the Administrative Rules of 
Montana; New Source Performance Standards for Montana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and NSPS delegation.

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SUMMARY: EPA is proposing to partially approve and partially disapprove 
State Implementation Plan (SIP) revisions submitted by the State of 
Montana on April 18, 2003 and August 20, 2003. The revisions modify the 
open burning rules, definitions and references to Federal regulations 
and other materials in the Administrative Rules of Montana. The 
intended effect of this action is to make federally enforceable those 
provisions that EPA is proposing to approve and to disapprove those 
provisions that are not approvable. We are also announcing that on 
January 9, 2004, we updated the delegation of authority for the 
implementation of the New Source Performance Standards (NSPS) to the 
State of Montana. This action is being taken under sections 110 and 111 
of the Clean Air Act.

DATES: Comments must be received on or before August 19, 2004.

ADDRESSES: Submit your comments, identified by Docket ID No. R08-OAR-
2004-MT-0001, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Agency Web site: http://docket.epa.gov/rmepub/index.jsp. 
Regional Materials in EDOCKET (RME), EPA's electronic public docket and 
comment system for regional actions, is EPA's preferred method for 
receiving comments. Follow the on-line instructions for submitting 
comments.
     E-mail: [email protected] and [email protected].
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Richard R. Long, Director, Air and Radiation 
Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-
AR, 999 18th Street, Suite 300, Denver, Colorado 80202-2466.

[[Page 43372]]

     Hand Delivery: Richard R. Long, Director, Air and 
Radiation Program, Environmental Protection Agency (EPA), Region 8, 
Mailcode 8P-AR, 999 18th Street, Suite 300, Denver, Colorado 80202-
2466. Such deliveries are only accepted Monday through Friday, 8 a.m. 
to 4:55 p.m., excluding Federal holidays. Special arrangements should 
be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. R08-OAR-2004-
MT-0001. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available at http://docket.epa.gov/rmepub/index.jsp, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through EDOCKET, 
regulations.gov, or e-mail. The EPA's Regional Materials in EDOCKET and 
Federal regulations.gov Web site are ``anonymous access'' systems, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA, without going through EDOCKET or 
regulations.gov, your e-mail address will be automatically captured and 
included as part of the comment that is placed in the public docket and 
made available on the Internet. If you submit an electronic comment, 
EPA recommends that you include your name and other contact information 
in the body of your comment and with any disk or CD-ROM you submit. If 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment. Electronic files should avoid the use of special characters, 
any form of encryption, and be free of any defects or viruses. For 
additional information about EPA's public docket visit EDOCKET online 
or see the Federal Register of May 31, 2002 (67 FR 38102). For 
additional instructions on submitting comments, go to Section I. 
General Information of the SUPPLEMENTARY INFORMATION section of this 
document.
    Docket: All documents in the docket are listed in the Regional 
Materials in EDOCKET index at http://docket.epa.gov/rmepub/index.jsp. 
Although listed in the index, some information is not publicly 
available, i.e., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in Regional Materials in EDOCKET or in 
hard copy at the Air and Radiation Program, Environmental Protection 
Agency (EPA), Region 8, 999 18th Street, Suite 300, Denver, Colorado 
80202-2466. EPA requests that if at all possible, you contact the 
individual listed in the FOR FURTHER INFORMATION CONTACT section to 
view the hard copy of the docket. You may view the hard copy of the 
docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Laurie Ostrand, Air and Radiation 
Program, Mailcode 8P-AR, Environmental Protection Agency (EPA), Region 
8, 999 18th Street, Suite 300, Denver, Colorado 80202-2466, (303) 312-
6437, [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. General Information
II. Background
III. EPA's Review of the State of Montana's April 18, 2003 and 
August 20, 2003 Submittals
IV. Announcement of NSPS Delegation
V. Proposed Action
VI. 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 words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words State or Montana mean the State of Montana, unless 
the context indicates otherwise.

I. General Information

A. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
Regional Materials in EDOCKET, regulations.gov or e-mail. Clearly mark 
the part or all of the information that you claim to be CBI. For CBI 
information in a disk or CD ROM that you mail to EPA, mark the outside 
of the disk or CD ROM as CBI and then identify electronically within 
the disk or CD ROM the specific information that is claimed as CBI. In 
addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

II. Background

A. April 18, 2003 Submittal

    On April 18, 2003, the Governor submitted a SIP revision that 
contains amendments to open burning rules at the Administrative Rules 
of Montana (ARM) 17.8.601, 17.8.604, 17.8.605, 17.8.606, 17.8.610, 
17.8.612 and 17.8.614 and an amendment to the incorporation by 
reference at 17.8.302(f). The amendments allow certain minor open 
burning to occur in the winter that had previously been prohibited; 
change the timeframe a landfill burn permit is valid from 30 days to 
one year and add the requirement that the department or its designated 
representative inspect burn piles at licensed landfills prior to every 
burn to ensure that no prohibited materials are in the piles; allow the 
open burning of the detonation of unexploded ordnance; clarify the 
materials prohibited from open burning; revise the conditional open 
burning permit requirements and make minor editorial and grammatical 
changes. The

[[Page 43373]]

submittal also contains amendments to ARM 17.8.302(f)--Incorporation by 
Reference. The Montana Board of Environmental Review (Board) adopted 
the amendments on December 6, 2002.

B. August 20, 2003 Submittal

    On August 20, 2003, the Governor submitted a SIP revision that 
contains amendments to definitions and incorporation by reference of 
current Federal regulations and other material into air quality rules 
at ARM 17.8.101, 17.8.102, 17.8.103, 17.8.106, 17.8.110, 17.8.302, 
17.8.401, 17.8.402, 17.8.801, 17.8.802, 17.8.818, 17.8.819, 17.8.821, 
17.8.901, 17.8.902, 17.8.905, 17.8.1002. The amendments update Federal 
citations, make clerical amendments, and eliminate the duplication of 
statutory language in definitions by citing to the definitions in the 
statute. The Board adopted the amendments on March 28, 2003.

III. EPA's Review of the State of Montana's April 18, 2003 and August 
20, 2003 Submittals

A. April 18, 2003 Submittal

1. Changes to Sub-Chapter 6--Open Burning
    a. Review of changes to ARM 17.8.601--Definitions: The State is 
revising the definition of ``best available control technology (BACT)'' 
in ARM 17.8.601(1). As discussed in the review of changes to ARM 
17.8.605 and 606, the State is revising the open burning rules to allow 
the open burning of additional source categories year round. The 
definition of BACT is being revised to indicate that BACT, for the 
additional source categories, includes only burning during time periods 
specified by the department, which may be determined by calling the 
department. The State is also revising the definition of ``open 
burning'' in ARM 17.8.601(7) to indicate that open burning does not 
include the detonation of unexploded ordnance. We were originally 
concerned that adding this exclusion to the definition might be 
considered a SIP relaxation. However, the State has indicated that the 
detonation of unexploded ordnance was never considered open burning, 
because unexploded ordnance may pose an imminent threat to public 
safety and health. Additionally, the detonation of unexploded ordnance 
is also subject to permitting required under Montana's Hazardous Waste 
Management Rules. Therefore, even though the detonation of unexploded 
ordnance may not be subject to the open burning regulations it would 
likely be subject to hazardous waste permitting requirements. Finally, 
the State is making administrative changes to the definition of ``trade 
wastes'' in ARM 17.8.601(10). We are proposing to approve these 
changes.
    b. Review of changes to ARM 17.8.604--Materials Prohibited From 
Open Burning: The State is revising ARM 17.8.604(1) to clarify the 
material that may not be disposed of by open burning. We do not believe 
the changes impact the stringency of the rule. However, with the 
changes, the State is adding a department discretion provision. 
Specifically, ARM 17.8.604(1)(a) indicates that waste moved from the 
premises where is was generated may not be disposed of by open burning 
except as provided by other provisions in the rule or ``or unless 
approval is granted by the department on a case-by-case basis.'' The 
phrase ``or unless approval is granted by the department on a case-by-
case basis'' is considered a department discretion. A department 
discretion provision allows the Department to revise the SIP without 
completing a formal SIP revision. We cannot approve department 
discretion provisions because they are inconsistent with section 110(i) 
of the Act. Therefore, we are proposing to approve the changes to ARM 
17.8.604(1) except that we are proposing to disapprove the phrase ``or 
unless approval is granted by the department on a case-by-case basis'' 
in ARM 17.8.604(1)(a).
    c. Review of changes to ARM 17.8.605--Special Burning Periods: The 
State is revising ARM 17.8.605(1) to add the following categories that 
may burn during the entire year: conditional air quality open burning, 
commercial film production open burning, Christmas tree waste open 
burning, and any minor open burning that is not prohibited by ARM 
17.8.604 or that is allowed by ARM 17.8.606. Initially we were 
concerned that allowing the open burning during the entire year for 
these additional categories would be considered a relaxation of the SIP 
and could interfere with attainment of the national ambient air quality 
standards (NAAQS) or reasonable further progress. The State explained 
``that allowing open burning to take place during periods when it is 
currently prohibited does not increase the total amount of burning that 
takes place. The burning that is going to take place is merely spread 
throughout the entire year. This reduces emissions during the fall and 
spring. Allowing minor open burning to occur under favorable conditions 
during the winter months will not endanger ambient air quality 
standards since the burning would be allowed only at times and in 
places where the ventilation is sufficient to protect ambient 
standards.''
    Additionally, for conditional air quality open burning, commercial 
film production open burning and Christmas tree waste open burning, the 
states rules require that department only issue a permit under its 
rules if the open burning will not cause or contribute to a violation 
of the NAAQS and that the open burn conform to BACT (see ARM 17.8.612, 
614 and 613, respectively). Among other things, BACT also requires that 
these additional categories to only burn during the time periods 
specified by the department (see ARM 17.8.601(1)). We are no longer 
concerned that the changes to ARM 17.8.605(1) will jeopardize the NAAQS 
and we are proposing to approve these changes.
    d. Review of changes to ARM 17.8.606--Minor Open Burning Source 
Requirements: The State is revising ARM 17.8.606(3) and (4) to clarify 
that minor open burning sources need to call the department during 
certain times of the year to determine if there are any burning 
restrictions. We are proposing to approve these changes.
    e. Review of changes to ARM 17.8.610--Major Open Burning Source 
Restrictions: The State is making some minor editorial changes to ARM 
17.8.610(4). We are proposing to approve these changes.
    f. Review of changes to ARM 17.8.612--Conditional Air Quality Open 
Burning Permits: The State is making changes to ARM 17.8.612(4) and (5) 
to make the open burning requirements consistent with State and Federal 
solid waste rules that regulate such burning. We are proposing to 
approve these changes.
    g. Review of changes to ARM 17.8.614--Commercial Film Production 
Open Burning Permits: The State is making some minor editorial changes 
to ARM 17.8.614(1). We are proposing to approve these changes.
2. Changes to Sub-Chapter 3--Emission Standards
    a. Review of changes to ARM 17.8.302--Incorporation by Reference: 
The State is revising ARM 17.8.302(f) to update a citation to a Federal 
rule. We are proposing to approve these changes.

B. August 20, 2003 Submittal

1. Changes to Sub-Chapter 1--General Provisions.
    a. Review of changes to ARM 17.8.101--Definitions: The State is 
updating citations, making minor clerical amendments and eliminating 
the duplication of statutory language in definitions by citing the 
definition in the statute; in lieu of repeating

[[Page 43374]]

definitions that are contained in the statute, otherwise known as the 
Montana Code Annotated (MCA), the State is referencing the definition 
in the MCA. The definitions in ARM 17.8.101 that are being replaced 
with a reference to the MCA, at this time, are the same. We were 
originally concerned that the MCA could be revised and that in effect 
would change the SIP without going through a formal SIP revision. 
However, ARM 17.8.102--Incorporation by Reference--Publication Dates 
and Availability of Referenced Documents--references the specific 
edition (or date) of MCA that is referenced in the rules. As the MCA is 
updated, the specific edition (or date) will also be updated in the 
SIP. Updating the specific edition of the MCA is the mechanism that the 
definitions in the SIP (in ARM 17.8.101) will be updated when the MCA 
definitions are amended. We are including in the docket for this action 
a copy of the section 75-2-103 of the MCA (2001 edition) to show the 
definitions the State intended to be in the SIP with this submittal. We 
will evaluate any changes to definitions when the State submits SIP 
revisions that update the editions (or date) of the MCA in ARM 
17.8.102. With this submittal, the State also deleted the definition 
contained in ARM 17.8.101(43). The specific sections the State is 
revising include: ARM 17.8.101(2), (8), (9), (12), (19), (20), (22), 
(23), (30) and (36). We are proposing to approve these changes.
    b. Review of changes to ARM 17.8.102--Incorporation by Reference--
Publication Dates and Availability of Referenced Documents: The State 
is updating the date of referenced documents. We are proposing to 
approve these changes.
    c. Review of changes to ARM 17.8.103--Incorporation by Reference: 
The State is updating citations, making wording consistent throughout 
and changing the order of subsections to a more logical sequence in ARM 
17.8.103(1). We are proposing to approve these changes.
    d. Review of changes to ARM 17.8.106--Source Testing Protocol: The 
State is making minor clerical amendments and revising the numbering to 
conform to State requirements. We are proposing to approve these 
changes.
    e. Review of changes to ARM 17.8.110--Malfunctions: The State is 
deleting an outdated telephone number and making a minor clerical 
correction in ARM 17.8.110(2). We are proposing to approve these 
changes.
2. Changes to Sub-Chapter 3--Emission Standards
    a. Review of changes to ARM 17.8.302--Incorporation by Reference: 
The State is updating citations, making wording consistent throughout 
and changing the order of subsections to a more logical sequence in ARM 
17.8.302(1). We are proposing to approve these changes.
3. Changes to Sub-Chapter 4--Stack Heights and Dispersion Techniques
    a. Review of changes to ARM 17.8.401--Definitions: The State is 
making minor clerical changes and revising the numbering to conform to 
State requirements. We are not acting on these changes at this time for 
the same reasons stated on our August 13, 2001 action (66 FR 42427 at 
42434).
    b. Review of changes to ARM 17.8.402--Requirements: The State is 
making minor clerical changes. We are not acting on these changes at 
this time for the same reasons stated on our August 13, 2001 action (66 
FR 42427 at 42434).
4. Changes to Sub-Chapter 8--Prevention of Significant Deterioration of 
Air Quality
    a. Review of changes to ARM 17.8.801--Definitions: The State is 
making minor clerical changes, updating citations and revising the 
numbering to conform to State requirements. The specific sections the 
State is revising include: ARM 17.8.801(1), (3), (4), (6), (20), (21), 
(22), (24), (27) and (28). We are proposing to approve these changes.
    b. Review of changes to ARM 17.8.802--Incorporation by Reference: 
The State is updating citations, making wording consistent throughout 
and changing the order of subsections to a more logical sequence in ARM 
17.8.802(1). We are proposing to approve these changes.
    c. Review of changes to ARM 17.8.818--Review of Major Stationary 
Sources and Major Modifications---Source Applicability and Exemptions: 
The State is updating citations in ARM 17.8.818(2), (3), and (6). We 
are proposing to approve these changes.
    d. Review of changes to ARM 17.8.819--Control Technology Review: 
The State is updating a citation in ARM 17.8.819(3). We are proposing 
to approve these changes.
    e. Review of changes to ARM 17.8.821--Air Quality Models: The State 
is updating citations. We are proposing to approve these changes.
5. Changes to Sub-Chapter 9--Permit Requirements for Major Stationary 
Sources or Major Modifications Locating Within Nonattainment Areas
    a. Review of changes to ARM 17.8.901--Definitions: The State is 
making minor clerical changes, updating citations and revising the 
numbering to conform to State requirements. The specific sections the 
State is revising include: ARM 17.8.901(1), (11), (12) and (14). We are 
proposing to approve these changes.
    b. Review of changes to ARM 17.8.902--Incorporation by Reference: 
The State is updating citations, making wording consistent throughout 
and changing the order of subsections to a more logical sequence in ARM 
17.8.902(1). We are proposing to approve these changes.
    c. Review of changes to ARM 17.8.905--Additional Conditions of Air 
Quality Preconstruction: The State is updating citations in ARM 
17.8.905(1)(c). We are proposing to approve these changes.
6. Changes to Sub-Chapter 10--Preconstruction Permit Requirements for 
Major Stationary Sources or Major Modifications Locating Within 
Attainment or Unclassified Areas
    a. Review of changes to ARM 17.8.1002--Incorporation by Reference: 
The State is updating citations, making wording consistent throughout 
and changing the order of subsections to a more logical sequence in ARM 
17.8.1002(1). We are proposing to approve these changes.

IV. Announcement of NSPS Delegation

    EPA is announcing that on January 9, 2004, pursuant to section 
111(c) of the Act, we delegated the authority to the State of Montana 
to implement and enforce the NSPS. The January 9, 2004 letter follows:

Ref: 8P-AR
Honorable Judy Martz, Governor of Montana, State Capitol, Helena, 
Montana 59620-0801.

    Dear Governor Martz: On August 20, 2003, the State submitted a 
revision to the Administrative Rules of Montana (ARM) 17.8.102. 
Specifically, the State revised its rules to incorporate the July 1, 
2002 Code of Federal Regulations. This revision, in effect, updates 
the citation of the incorporated Federal New Source Performance 
Standards (NSPS) to July 1, 2002.
    Subsequent to States adopting NSPS regulations, EPA delegates 
the authority for the implementation and enforcement of those NSPS, 
so long as the State's regulations are equivalent to the Federal 
regulations. EPA reviewed the pertinent statutes and regulations of 
the State of Montana and determined that they provide an adequate

[[Page 43375]]

and effective procedure for the implementation and enforcement of 
the NSPS by the State of Montana. Therefore, pursuant to Section 
111(c) of the Clean Air Act (Act), as amended, and 40 CFR Part 60, 
EPA hereby delegates its authority for the implementation and 
enforcement of the NSPS to the State of Montana as follows:
    (A) Responsibility for all sources located, or to be located, in 
the State of Montana subject to the standards of performance for new 
stationary sources promulgated in 40 CFR Part 60. The categories of 
new stationary sources covered by this delegation are all NSPS 
subparts in 40 CFR Part 60, as in effect on July 1, 2002. Note this 
delegation does not include the emission guidelines in subparts Cb, 
Cc, Cd, Ce, BBBB and DDDD. These subparts require state plans which 
are approved under a separate process pursuant to Section 111(d) of 
the Act.
    (B) Not all authorities of NSPS can be delegated to States under 
Section 111(c) of the Act, as amended. The EPA Administrator retains 
authority to implement those sections of the NSPS that require: (1) 
Approving equivalency determinations and alternative test methods, 
(2) decision making to ensure national consistency, and (3) EPA 
rulemaking to implement. Therefore, of the NSPS of 40 CFR Part 60 
being delegated in this letter, the enclosure lists examples of 
sections in 40 CFR Part 60 that cannot be delegated to the State of 
Montana.
    (C) The DEQ and EPA will continue a system of communication 
sufficient to guarantee that each office is always fully informed 
and current regarding compliance status of the subject sources and 
interpretation of the regulations.
    (D) Enforcement of the NSPS in the State will be the primary 
responsibility of the DEQ. If the DEQ determines that such 
enforcement is not feasible and so notifies EPA, or where the DEQ 
acts in a manner inconsistent with the terms of this delegation, EPA 
may exercise its concurrent enforcement authority pursuant to 
section 113 of the Act, as amended, with respect to sources within 
the State of Montana subject to NSPS.
    (E) The State of Montana will at no time grant a variance or 
waiver from compliance with NSPS regulations. Should DEQ grant such 
a variance or waiver, EPA will consider the source receiving such 
relief to be in violation of the applicable Federal regulation and 
initiate enforcement action against the source pursuant to section 
113 of the Act. The granting of such relief by the DEQ shall also 
constitute grounds for revocation of delegation by EPA.
    (F) If at anytime there is a conflict between a State regulation 
and a Federal regulation (40 CFR Part 60), the Federal regulation 
must be applied if it is more stringent than that of the State. If 
the State does not have the authority to enforce the more stringent 
Federal regulation, this portion of the delegation may be revoked.
    (G) If the Regional Administrator determines that a State 
procedure for enforcing or implementing the NSPS is inadequate, or 
is not being effectively carried out, this delegation may be revoked 
in whole or part. Any such revocation shall be effective as of the 
date specified in a Notice of Revocation to the DEQ.
    (H) Acceptance of this delegation of presently promulgated NSPS 
does not commit the State of Montana to accept delegation of future 
standards and requirements. A new request for delegation will be 
required for any standards not included in the State's request of 
August 20, 2003.
    (I) Upon approval of the Regional Administrator of EPA Region 
VIII, the Director of DEQ may subdelegate his/her authority to 
implement and enforce the NSPS to local air pollution control 
authorities in the State when such authorities have demonstrated 
that they have equivalent or more stringent programs in force.
    (J) The State of Montana must require reporting of all excess 
emissions from any NSPS source in accordance with 40 CFR 60.7(c).
    (K) Performance tests shall be scheduled and conducted in 
accordance with the procedures set forth in 40 CFR Part 60 unless 
alternate methods or procedures are approved by the EPA 
Administrator. Although the Administrator retains the exclusive 
right to approve equivalent and alternate test methods as specified 
in 40 CFR 60.8(b)(2) and (3), the State may approve minor changes in 
methodology provided these changes are reported to EPA Region VIII. 
The Administrator also retains the right to change the opacity 
standard as specified in 40 CFR 60.11(e).
    (L) Determinations of applicability such as those specified in 
40 CFR 60.5 and 60.6 shall be consistent with those which have 
already been made by the EPA.
    (M) Alternatives to continuous monitoring procedures or 
reporting requirements, as outlined in 40 CFR 60.13(i), may be 
approved by the State with the prior concurrence of the Regional 
Administrator.
    (N) If a source proposes to modify its operation or facility 
which may cause the source to be subject to NSPS requirements, the 
State shall notify EPA Region VIII and obtain a determination on the 
applicability of the NSPS regulations.
    (O) Information shall be made available to the public in 
accordance with 40 CFR 60.9. Any records, reports, or information 
provided to, or otherwise obtained by, the State in accordance with 
the provisions of these regulations shall be made available to the 
designated representatives of EPA upon request.
    (P) All reports required pursuant to the delegated NSPS should 
not be submitted to the EPA Region VIII office, but rather to the 
DEQ.
    (Q) As 40 CFR Part 60 is updated, Montana should revise its 
regulations accordingly and in a timely manner and submit to EPA 
requests for updates to its delegation of authority.
    EPA is approving Montana's request for NSPS delegation for all 
areas within the State except for the following: Lands within the 
exterior boundaries of the Northern Cheyenne, Rocky Boys, Blackfeet, 
Crow, Flathead, Fort Belknap, and Fort Peck Indian Reservations; and 
any other areas which are Indian Country within the meaning of 18 
U.S.C. 1151.
    Since this delegation is effective immediately, there is no need 
for the State to notify the EPA of its acceptance. Unless we receive 
written notice of objections from you within ten days of the date on 
which you receive this letter, the State of Montana will be deemed 
to accept all the terms of this delegation. EPA will publish an 
information notice in the Federal Register in the near future to 
inform the public of this delegation, in which this letter will 
appear in its entirety.
    If you have any questions on this matter, please contact me or 
have your staff contact Richard Long, Director of our Air and 
Radiation Program. We can both be reached at (800) 227-8917.

Sincerely yours,
Robert E. Roberts,
Regional Administrator.

    Enclosure.

cc: Jan Sensibaugh, Director, Montana Department of Environmental 
Quality.
John Wardell, 8MO.

    Enclosure to Letter Delegating NSPS in 40 CFR Part 60, Effective 
Through July 1, 2002, to the State of Montana.

   Examples of Authorities in 40 CFR Part 60 Which Cannot Be Delegated
------------------------------------------------------------------------
          40 CFR subparts                        Section(s)
------------------------------------------------------------------------
A.................................  60.8(b)(2) and (b)(3), and those
                                     sections throughout the standards
                                     that reference 60.8(b)(2) and
                                     (b)(3); 60.11(b) and (e).
Da................................  60.45a.
Db................................  60.44b(f), 60.44b(g) and
                                     60.49b(a)(4).
Dc................................  60.48c(a)(4).
Ec................................  60.56c(i), 60.8.
J.................................  60.105(a)(13)(iii) and
                                     60.106(i)(12).
Ka................................  60.114a.
Kb................................  60.111b(f)(4), 60.114b,
                                     60.116b(e)(3)(iii),
                                     60.116b(e)(3)(iv), and
                                     60.116b(f)(2)(iii).
O.................................  60.153(e).
S.................................  60.195(b).

[[Page 43376]]

 
DD................................  60.302(d)(3).
GG................................  60.332(a)(3) and 60.335(a).
VV................................  60.482-1(c)(2) and 60.484.
WW................................  60.493(b)(2)(i)(A) and 60.496(a)(1).
XX................................  60.502(e)(6).
AAA...............................  60.531, 60.533, 60.534, 60.535,
                                     60.536(i)(2), 60.537, 60.538(e) and
                                     60.539.
BBB...............................  60.543(c)(2)(ii)(B).
DDD...............................  60.562-2(c).
GGG...............................  60.592(c).
III...............................  60.613(e).
JJJ...............................  60.623.
KKK...............................  60.634.
NNN...............................  60.663(f).
QQQ...............................  60.694.
RRR...............................  60.703(e).
SSS...............................  60.711(a)(16), 60.713(b)(1)(i) and
                                     (ii), 60.713(b)(5)(i), 60.713(d),
                                     60.715(a) and 60.716.
TTT...............................  60.723(b)(1), 60.723(b)(2)(i)(C),
                                     60.723(b)(2)(iv), 60.724(e) and
                                     60.725(b).
VVV...............................  60.743(a)(3)(v)(A) and (B),
                                     60.743(e), 60.745(a) and 60.746.
WWW...............................  60.754(a)(5).
CCCC..............................  60.2030(c) identifies authorities in
                                     Subpart CCCC that cannot be
                                     delegated to the State.
------------------------------------------------------------------------

V. Proposed Action

    EPA is proposing to approve the following changes to the 
Administrative Rules of Montana (ARM) that were submitted on April 18, 
2003 and effective on December 27, 2002: ARM 17.8.302(f); 17.8.601(1), 
(7) and (10); 17.8.604(1) (except the phrase in 604(1)(a) ``or unless 
approval is granted by the department on a case-by-case basis''); 
17.8.605(1); 17.8.606(3) and (4); 17.8.610(4); 17.8.612(4) and (5); and 
17.8.614(1).
    EPA is proposing to approve the following changes to the ARM that 
were submitted on August 20, 2003 and effective on April 11, 2003: ARM 
17.8.101(2), (8), (9), (12), (19), (20), (22), (23), (30) and (36); 
17.8.102; 17.8.103(1); 17.8.106; 17.8.110(2); 17.8.302(1); 17.8.801(1), 
(3), (4), (6), (20), (21), (22), (24), (27) and (28); 17.8.802(1); 
17.8.818(2), (3) and (6); 17.8.819(3); 17.8.821; 17.8.901(1), (11), 
(12) and (14); 17.8.902(1); 17.8.905(1)(c); and 17.8.1002(1). We are 
also proposing to approve the deletion of the definition in ARM 
17.8.101(43).
    EPA is proposing to disapprove the following change to the ARM that 
was submitted on April 18, 2003 and effective on December 27, 2002: the 
phrase ``or unless approval is granted by the department on a case-by-
case basis'' in ARM 17.8.604(1)(a).
    EPA is not acting on the following changes to the ARM that were 
submitted on August 20, 2003 and effective on April 11, 2003: ARM 
17.8.401 and 17.8.402. These revisions will be addressed in a separate 
action.
    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 
towards attainment of the NAAQS or any other applicable requirements of 
the Act. The Montana SIP revisions that are the subject of this 
document do not interfere with the maintenance of the NAAQS or any 
other applicable requirement of the Act. The April 18, 2003 submittal 
revises the open burning rules. However, as discussed earlier, we do 
not believe the changes will impact the NAAQS. The August 20, 2003 
submittal merely makes administrative amendments to the State's 
Administrative Rules of Montana. Therefore, section 110(l) requirements 
are satisfied.

VI. 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 proposed 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 proposed rule will not have a significant impact on a 
substantial number of small entities because SIP approvals and 
disapproval under section 110 and subchapter I, part D of the Clean Air 
Act do not create any new requirements but simply approve or disapprove 
requirements that the State is already imposing. Therefore, because the 
Federal SIP approval/disapproval 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).

D. Unfunded Mandates Reform Act

    Under sections 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

[[Page 43377]]

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 action proposed does not include a 
Federal mandate that may result in estimated costs of $100 million or 
more to either State, local, or tribal governments in the aggregate, or 
to the private sector. This Federal action proposes to partially 
approve and partially disapprove 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 proposed 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 proposes to partially approve and partially 
disapprove 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, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 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 proposed 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.
    EPA specifically solicits additional comment on this proposed rule 
from tribal officials.

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

    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.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

40 CFR Part 60

    Air pollution control, Aluminum, Ammonium sulfate plants, 
Beverages, Carbon monoxide, Cement industry, Coal, Copper, Dry 
cleaners, 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.

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


[[Page 43378]]


    Dated: July 13, 2004.
Robert E. Roberts,
Regional Administrator, Region 8.
[FR Doc. 04-16448 Filed 7-19-04; 8:45 am]
BILLING CODE 6560-50-P