[Federal Register Volume 73, Number 146 (Tuesday, July 29, 2008)]
[Rules and Regulations]
[Pages 43871-43873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-17094]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2006-0806, FRL-8683-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Montana; Revisions to the Administrative Rules of Montana--Air Quality, 
Incinerators

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is approving revisions to the State Implementation 
Plan (SIP) submitted by the Governor of Montana on December 8, 1997, 
May 28, 2003, and August 25, 2004. The December 8, 1997 submittal 
revised the Administrative Rules of Montana (ARM) chapter 8, subchapter 
3, section 17.8.316 (Incinerators) by adding subsection (6). ARM 
17.8.316(6) excludes incinerators from having to comply with the other 
provisions of ARM 17.8.316, including the particulate matter emissions 
standard of 0.10 grains per cubic foot and the 10% opacity standard, if 
these sources have been issued a Montana air quality permit under 75-2-
215, Montana Code Annotated (MCA), and ARM 17.8.770, which pertain to 
permitting of solid or hazardous waste incinerators. The August 25, 
2004 submittal made a minor editorial revision to ARM 17.8.316(5). The 
May 28, 2003 submittal made minor editorial revisions to ARM 
17.8.316(6). In a December 12, 2007 Notice of Proposed Rulemaking (72 
FR 70540), we proposed to approve these revisions to the Montana State 
Implementation Plan (SIP). This action is being taken under section 110 
of the Clean Air Act (CAA).

DATES: Effective Date: This final rule is effective August 28, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2006-0806. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, e.g., Confidential Business 
Information (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 through http://www.regulations.gov or in hard copy at 
the Air and Radiation Program, Environmental Protection Agency (EPA), 
Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. 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: Kathy Dolan, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, 303-312-6142, [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Summary of SIP Revision
II. Final Action
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 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. Summary of SIP Revision

    On December 8, 1997, the State of Montana submitted a SIP revision 
for EPA's approval. The revision added subsection (6) to section 
17.8.316 (Incinerators) of the Administrative Rules of Montana (ARM), 
chapter 8 (Air Quality), subchapter 3 (Emission Standards). Subsection 
(6) exempts incinerators from the requirements of ARM 17.8.316, 
including the particulate matter emissions standard of 0.10 grains per 
cubic foot and the 10% opacity standard, if these sources have been 
issued a Montana air quality permit

[[Page 43872]]

under 75-2-215, MCA, and ARM 17.8.706(5).\1\ \2\
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    \1\ MCA section 75-2-215 is titled ``Solid or hazardous waste 
incineration--Additional permit requirements''.
    \2\ ARM 17.8.706(5) was recodifed to ARM 17.8.770 effective on 
December 6, 2002. This provision has not been submitted by the State 
to be incorporated into the federally approved SIP. ARM 17.8.770 
(formerly ARM 17.8.706(5)) requires applicants for a preconstruction 
permit for an incineration facility to submit a human health risk 
assessment protocol and a human health risk assessment.
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    The revision also included wording changes to ARM 17.8.316. Most 
are minor editorial or technical corrections and do not change the 
substance of the rule. One of the changes was to substitute the words 
``solid and hazardous waste'' for the word ``refuse'' in the rule. The 
effect of this change was to extend the rule requirements to 
incinerators burning solid or hazardous waste, not just refuse. The 
full text of the changes can be found in our Technical Support Document 
(TSD), which is contained in the Docket for this action.
    We interpret ARM 17.8.316(6) to allow terms of a permit to override 
a requirement that has been approved as part of the SIP (i.e., the 
provisions in ARM 17.8.316(1)-(5)). Therefore, an analysis was needed 
to show that this new rule would not interfere with compliance with the 
National Ambient Air Quality Standards (NAAQS) or Prevention of 
Significant Deterioration (PSD) increments. Section 110(l) of the CAA 
states that EPA cannot approve a SIP revision that would interfere with 
any applicable requirement concerning attainment or reasonable further 
progress, as defined in section 171 of the CAA, or any other applicable 
requirements of the CAA. Montana did not provide any demonstration in 
its December 8, 1997 submittal that ARM 17.8.316(6) meets these 
criteria. Subsequent to the State's submittal, we requested information 
from the Montana Department of Environmental Quality (DEQ) in order to 
conduct our own analysis on the impact of ARM 17.8.316(6) on the 
attainment and maintenance of the NAAQS for particulate matter with an 
aerodynamic diameter less than or equal to 10 and 2.5 micrometers (PM-
10 and PM-2.5) and compliance with the PSD PM-10 increments. Based on 
this analysis, we have determined that this specific change to a SIP 
requirement will not adversely impact the attainment and maintenance of 
the PM-10 and PM-2.5 NAAQS, or compliance with the PM-10 increments, in 
Montana. Our analysis of this revision's impact is contained in the TSD 
for this action. In addition, the TSD discusses our verification that 
ARM 17.8.316(6) will not impact compliance with, or the ability to 
enforce, the Federal New Source Performance Standards (NSPS) or Maximum 
Achievable Control Technology (MACT) regulations. Based on a letter 
from the Montana DEQ dated October 2, 2007, and our own consideration 
of the rule change, we have determined that ARM 17.8.316(6) will not 
interfere with, supersede, or replace any NSPS or MACT requirements for 
sources, or affect in any way the State's, EPA's, or any other person's 
ability to enforce such NSPS or MACT requirements. The TSD and the DEQ 
letter are available for review as part of the Docket for this action.
    On August 25, 2004, the State of Montana submitted for our approval 
a revision to subsection (5) to ARM 17.8.316 (Incinerators). This 
revision makes a minor change to the third sentence of subsection (5), 
from: ``Testing shall be conducted in accordance with ARM 17.8.106 and 
the Montana Source Testing Protocol and Procedures Manual''; to: 
``Testing shall be conducted in accordance with ARM 17.8.106 and the 
Montana Source Test Protocol and Procedures Manual.''
    On May 28, 2003, the State of Montana submitted for our approval a 
revision to ARM 17.8.316(6). This revision makes minor changes to 
subsection (6), from: ``This rule does not apply to incinerators for 
which an air quality preconstruction permit has been issued under 75-2-
215, MCA, and ARM 17.8.706(5)''; to: ``This rule does not apply to 
incinerators for which a Montana air quality permit has been issued 
under 75-2-215, MCA, and ARM 17.8.770.''

II. Final Action

    Our review of the revisions to ARM 17.8.316 indicates that they are 
consistent with the CAA. Thus, we are approving the revisions to ARM 
17.8.316, submitted on December 8, 1997, May 28, 2003, and August 25, 
2004, into the Montana SIP.

III. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    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 action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and

[[Page 43873]]

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).

List of Subjects in 40 CFR Part 52

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

    Dated: June 5, 2008.
Carol Rushin,
Acting Regional Administrator, Region 8.

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

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)(67) to read as 
follows:


Sec.  52.1370  Identification of plan.

* * * * *
    (c) * * *
    (67) On December 8, 1997, May 28, 2003, and August 25, 2004, the 
Governor of Montana submitted revisions to the Montana State 
Implementation Plan. The December 8, 1997 submittal adds subsection (6) 
to Administrative Rules of Montana (ARM) section 17.8.316 
(Incinerators); the August 25, 2004 submittal makes a minor revision to 
ARM 17.8.316(5); and, the May 28, 2003 submittal makes minor editorial 
revisions to ARM 17.8.316(6).
    (i) Incorporation by reference. Administrative Rules of Montana 
(ARM) section 17.8.316, Incinerators, effective April 9, 2004.
    (ii) Additional Material.
    (A) October 2, 2007 Letter from MT DEQ to EPA regarding NSPS/MACT 
compliance.

 [FR Doc. E8-17094 Filed 7-28-08; 8:45 am]
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