[Federal Register Volume 75, Number 42 (Thursday, March 4, 2010)]
[Proposed Rules]
[Pages 9834-9843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4559]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2006-0601; FRL-9122-6]


Approval and Disapproval and Promulgation of Air Quality 
Implementation Plans; Montana; Revisions to the Administrative Rules of 
Montana--Air Quality, Subchapter 7 and Other Subchapters

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to partially approve and partially disapprove 
State Implementation Plan revisions submitted by the State of Montana 
on August 26, 1999, May 28, 2003, March 9, 2004, October 25, 2005, and 
October 16, 2006. The revisions contain new, amended, and repealed 
rules in Subchapter 7 (Permit, Construction, and Operation of Air 
Contaminant Sources) that pertain to the issuance of Montana air 
quality permits, in addition to other minor administrative changes to 
other subchapters of the Administrative Rules of Montana. The intended 
effect of this action is to propose to approve those

[[Page 9835]]

portions of the rules that are approvable and to propose to disapprove 
those portions of the rules that are inconsistent with the Clean Air 
Act. This action is being taken under section 110 of the Clean Air Act.

DATES: Comments must be received on or before April 5, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2006-0601, by one of the following methods:
     http://www.regulations.gov. 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: Callie A. Videtich, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129.
     Hand Delivery: Callie A. Videtich, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only 
accepted Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal 
holidays. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2006-0601. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, 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 http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, 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 http://www.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 the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. 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 http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly-available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air 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: Kevin Leone, Air Program, Mailcode 8P-
AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, (303) 312-6227, or [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
II. Summary of SIP Revisions
III. EPA Review and Proposed Action on SIP Revisions
IV. Summary of EPA's Proposed Action
V. 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 
http://www.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. Summary of SIP Revisions

A. August 26, 1999 Submittal

    On August 26, 1999, the Governor of Montana submitted a State 
Implementation Plan (SIP) revision request. The revision contains 
amended and repealed rules to various subchapters in the Administrative 
Rules of Montana (ARM) that were adopted by

[[Page 9836]]

the Montana Board of Environmental Review (Board) on May 14, 1999. 
Specific to Subchapter 7 (Permit, Construction, and Operation of Air 
Contaminant Sources), the submittal revised ARM 17.8.705 and 17.8.733 
and repealed ARM 17.8.708. However, as indicated below, a May 28, 2003 
submittal rescinded the August 26, 1999 revisions to ARM 17.8.705 and 
17.8.733.

B. May 28, 2003 Submittal

    On May 28, 2003, the Governor of Montana submitted a SIP revision 
request. The revision contains new, amended, and repealed rules adopted 
by the Board on December 6, 2002. The new and repealed rules pertain to 
the issuance of Montana air quality permits and are in Subchapter 7 of 
the ARM. The amended rules contain references to the new and repealed 
rules.
    The new rules include: ARM 17.8.740, 17.8.743, 17.8.744, 17.8.745, 
17.8.748, 17.8.749, 17.8.752, 17.8.755, 17.8.756, 17.8.759, 17.8.760, 
17.8.762, 17.8.763, 17.8.764, 17.8.765, 17.8.767, and 17.8.770.
    The repealed SIP-approved rules include: ARM 17.8.701, 17.8.702, 
17.8.704, 17.8.705, 17.8.706, 17.8.707, 17.8.710, 17.8.715, 17.8.716, 
17.8.717, 17.8.720, 17.8.730, 17.8.731, 17.8.732, 17.8.733, and 
17.8.734.
    The amended SIP-approved rules include: ARM 17.8.101, 17.8.110, 
17.8.309, 17.8.310, 17.8.316, 17.8.818, 17.8.825, 17.8.826, 17.8.901, 
17.8.904, 17.8.905, 17.8.906, 17.8.1004, 17.8.1005, 17.8.1106, and 
17.8.1109.
    The May 28, 2003 submittal also rescinded outstanding SIP 
submissions for rules that amended the following: ARM 17.8.702, adopted 
July 20, 2001 and submitted on December 20, 2001; \1\ ARM 17.8.705 and 
17.8.733, adopted on May 14, 1999 and submitted on August 26, 1999.
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    \1\ Note that the May 28, 2003 submittal requested rescinding 
revisions to ARM 17.8.702, adopted on July 20, 2001 and submitted on 
December 20, 2001. EPA had already approved the revisions to ARM 
17.8.702 (see 67 FR 55125, 8/28/02, and 40 CFR 52.1370(c)(55)) by 
the time we had received the May 28, 2003 letter. However, the May 
28, 2003 submittal also requests that all of ARM 17.8.702 be 
repealed. We are proposing to remove ARM 17.8.702 from the 
federally-approved SIP.
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    EPA provided written comments to the State during the rulemaking 
process for the revisions submitted to EPA on May 28, 2003. To review 
these comments please see the October 9, 2002 letter from Richard R. 
Long, EPA, to the Board included in the docket for this action. All 
future references in this notice to EPA's comments during the State 
rulemaking process refer to this letter. In addition, the State 
provided a response to all comments received during their rulemaking. 
To review these responses please see Public Hearing Notice and Final 
Notices on amendments of air quality rules letter dated December 26, 
2002 included as part of the May 28, 2003 submittal. All future 
references in this notice to the State's response to EPA's comments 
refer to this letter.

C. March 9, 2004 Submittal

    On March 9, 2004, the Governor of Montana submitted a SIP revision 
request. The revision contains amended rules adopted by the Board on 
September 26, 2003. The amended rules pertain to the issuance of 
Montana air quality permits. The following rules were amended: ARM 
17.8.749, 17.8.759, 17.8.763, and 17.8.764.

D. October 25, 2005 Submittal

    On October 25, 2005, the Governor of Montana submitted a SIP 
revision request. The revision contains amended rules adopted by the 
Board on June 3, 2005. EPA approved all of the October 25, 2005 
submittal on July 19, 2006 (71 FR 40922), except for ARM 17.8.767. We 
are addressing ARM 17.8.767 in this document.

E. October 16, 2006 Submittal

    On October 16, 2006, the Governor of Montana submitted a SIP 
revision request. The revision contains an amended rule for ARM 
17.8.743(1) and new rules codified as ARM 17.8.1601, 17.8.1602, 
17.8.1603, 17.8.1604, 17.8.1605, and 17.8.1606, and ARM 17.8.759 
adopted by the Board on December 2, 2005. The submittal also requested 
to withdraw ARM 17.8.743(1)(c) from being incorporated into the SIP. We 
are addressing ARM 17.8.759 in this document. The revision to ARM 
17.8.743(1) and the new rules pertain to the regulation of oil and gas 
well facilities, and we will address this revision request in a 
separate action.

III. EPA Review and Proposed Action on SIP Revisions

A. Repealed Rules

    The State has completely rewritten its permitting rules in 
Subchapter 7 of the ARM. The State has repealed the existing SIP-
approved rules and adopted new rules. We are proposing to approve the 
State's May 28, 2003 request to repeal the following rules from the 
SIP: ARM 17.8.701, 17.8.702, 17.8.704, 17.8.705, 17.8.706, 17.8.707, 
17.8.710, 17.8.715, 17.8.716, 17.8.717, 17.8.720, 17.8.730, 17.8.731, 
17.8.732, 17.8.733, and 17.8.734. Our review and proposed action on the 
new rules submitted on May 28, 2003, with revisions submitted on March 
9, 2004 and October 25, 2005, are discussed below.
    The August 26, 1999 SIP revision requested that ARM 17.8.708 be 
repealed from the SIP. On September 19, 1997, the Governor of Montana 
submitted a SIP revision that completely recodified the State's air 
quality rules. ARM 17.8.708 was one of the rules recodified. In our 
August 13, 2001 final notice (66 FR 42427) on the recodification, we 
indicated that we would act on several provisions, including ARM 
17.8.708, at a later date. Therefore, ARM 17.8.708 was never approved 
into the SIP. (See page 42434 of the August 13, 2001 notice). At this 
point there is no ARM 17.8.708 to repeal as requested by the August 26, 
1999 submittal letter.

B. New Subchapter 7 Rules

1. ARM 17.8.740 Definitions
    On May 28, 2003, the State submitted new section ARM 17.8.740. ARM 
17.8.740 contains the definitions applicable to Subchapter 7. 
Previously the definitions were in ARM 17.8.701, which was repealed 
with the May 2003 submittal. ARM 17.8.740 contains definitions for some 
terms not contained in ARM 7.8.701, as well as makes minor 
modifications to some of the definitions that were contained in ARM 
17.8.701. Also, two terms in ARM 17.8.701, ``lowest achievable emission 
rate'' and ``major emitting facility,'' are not contained in ARM 
17.8.740.
    It is acceptable that the ARM 17.8.740 does not contain definitions 
for ``lowest achievable emission rate'' and ``major emitting 
facility.'' ``Lowest achievable emission rate'' is defined at ARM 
17.8.901(10) and the State's rules also contain a definition of ``major 
stationary source'' at ARM 17.8.801(22) and 17.8.901(12).
    Definitions for the following terms are being added to ARM 
17.8.740, which were not previously in ARM 17.8.701: day; emitting 
unit; facility; install or installation; modify, Montana air quality 
permit; and routine maintenance, repair, or replacement.
    We are proposing to approve the definitions in section ARM 
17.8.740, with the exception of the definitions of ``routine 
maintenance, repair, or replacement'' (RMRR), ``modify,'' ``negligible 
risk to the public health, safety, and welfare and to the environment'' 
and ``construct or construction.'' We are proposing to disapprove the 
definition of ``routine maintenance, repair, or replacement'' and 
``negligible risk to the public health, safety, and welfare and to the 
environment,'' and portions of the

[[Page 9837]]

definition of ``construct or construction'' and we are not taking 
action on portions of the definition of ``modify'' for the following 
reasons.
    a. ``RMRR'' EPA has determined that the definition for RMRR at ARM 
17.8.740(14) would be applicable to major sources, since this 
definition does not explicitly limit its application to true minor 
sources. The term RMRR is used in Montana's Prevention of Significant 
Deterioration (PSD) and non-attainment New Source Review (NSR) 
regulations (ARM 17.8.801(20)(b)(i) and 17.8.901(11)(b)(i)), but RMRR 
is not defined in these subchapters. During the State's rulemaking 
process we provided comments that expressed our concerns with the 
definition of RMRR.\2\ In response to our comments, the State indicated 
that the definitions section (that includes the RMRR definition) in 
Subchapter 7 (Permit, Construction and Operation of Air Contaminant 
Sources) explicitly states that the definitions contained in that rule 
are ``for the purposes of this subchapter,'' and therefore, the 
definition of ``routine maintenance, repair, or replacement'' would not 
apply to Subchapters 8, 9, and 10.\3\ However, EPA interprets ARM 
17.8.743 (Montana Air Quality Permits--When Required) as requiring all 
Montana sources (both major and minor) to comply with the requirements 
in Subchapter 7, and that major sources would also comply with the 
requirements in Subchapters 8, 9, or 10 as applicable. Therefore, major 
sources and the public may believe the definition of RMRR in Subchapter 
7 is applicable to the major sources since there is nothing in 
subchapters 8, 9, or 10 prohibiting a major source from using this 
definition.
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    \2\ See October 9, 2002 letter from Richard R. Long, EPA, to the 
Montana Board of Environmental Review--all future references in this 
notice to EPA's comments during the State rulemaking process refer 
to this letter.
    \3\ See Public Hearing Notice and Final Notices on amendments of 
air quality rules letter dated December 26, 2002 included as part of 
the May 28, 2003 submittal--all future references in this notice to 
the State's response to EPA's comments refer to this letter.
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    Montana's definition of RMRR allows associated fixed capital costs 
less than 50% of the fixed capital cost necessary to construct a 
comparable new emitting unit to be considered RMRR. Montana's 
definition of RMRR is inconsistent with EPA's current policy concerning 
RMRR at PSD sources. EPA's position is that a determination of routine 
maintenance, repair, or replacement is a case specific process that 
cannot be generally defined, and takes into consideration the nature, 
extent, purpose, frequency and cost of the work, as well as any other 
relevant factors.\4\ Furthermore, the State's rule is less stringent 
than EPA's vacated Routine Equipment Replacement Provision rule for PSD 
sources (68 FR 61248), which had specified that the capital cost 
threshold for routine equipment replacement shall not exceed 20 percent 
of the replacement value of the process (rule vacated by the Court of 
Appeals for the D.C. Circuit, New York v. EPA, 443 F.3d 880 
(D.C.Cir.2006).) Based on the above analysis, we have determined that 
Montana's definition for RMRR at ARM 17.8.740(14) is inconsistent with 
the Clean Air Act (CAA) and is not approvable.
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    \4\ See September 9, 1988 Memorandum from Don R. Clay, Acting 
Assistant Administrator for Air and Radiation, to David A. Kee, 
Director, Air and Radiation Division, Region V, titled 
``Applicability of Prevention of Significant Deterioration (PSD) and 
New Source Performance Standards (NSPS) Requirements to the 
Wisconsin Power Company (WEPCO) Port Washington Life Extension 
Project.''
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    b. ``Modify.'' We are not taking action on part of the definition 
of ``modify.'' The new definition for ``modify'' at ARM 17.8.740(8) 
refers to the ``Exclusion of De Minimis Changes'' provision codified at 
ARM 17.8.745, which EPA is not taking action on (see discussion 
regarding ARM 17.8.745 below). Since we are not taking action on ARM 
17.8.745, we are proposing to approve ARM 17.8.740(8) with the 
exception of the following phrases: (1) ``Except when a permit is not 
required under ARM 17.8.745'' in ARM 17.8.740(8)(a); and (2) ``except 
as provided in ARM 17.8.745'' in ARM 17.8.740(8)(c).
    c. ``Negligible risk to the public health, safety, and welfare and 
to the environment.'' We are proposing to disapprove the definition of 
``negligible risk to the public health, safety, and welfare and to the 
environment'' in ARM 17.8.740(10) because, in a March 30, 2006 letter 
to EPA, the State rescinded its May 28, 2003 request for provision ARM 
17.8.770 (Additional Requirements for Incinerators) to be included in 
the federally-approved SIP. ARM 17.8.770 is the only provision in 
Subchapter 7 that utilizes this definition; and therefore, it is not 
necessary for it to be incorporated into the SIP.
    Finally, during the State's rulemaking process we expressed 
concerns with the definition of ``construct or construction'' in ARM 
17.8.740(2). We were concerned because this definition includes the 
phrase ``reasonable period of time for startup and shakedown.'' 
Subchapters 8, 9 and 10 contain their own definitions addressing 
construction in ARM 17.8.801(5) and (10) and ARM 17.8.901(3) and (6) 
for major source permitting; however, the addition of the phrase 
``reasonable period of time for startup and shakedown'' makes the 
definition of ``construct or construction'' in ARM 17.8.740(2) 
inconsistent with the same term used in major source permitting. Since 
this phrase also reduces the stringency of the current SIP approved 
regulations, an analysis should be provided by the State showing that 
this new rule will not interfere with compliance with the National 
Ambient Air Quality Standards (NAAQS) or 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 requirement of the CAA. Montana did not provide 
any analysis or demonstration that the definition of ``construct or 
construction'' in ARM 17.8.740(2) meets these criteria. Therefore, we 
are proposing to approve the definition of ``construct or 
construction'' in ARM 17.8.740(2) with the exception of the phrase 
``reasonable period of time for startup and shakedown.''
2. ARM 17.8.743 Montana Air Quality Permits--When Required
    On May 28, 2003, the State submitted new section ARM 17.8.743. ARM 
17.8.743(1) describes those sources that are required to obtain a 
Montana air quality permit and ARM 17.8.743(2)--(5) adds new provisions 
pertaining to seasonal construction activities that can occur prior to 
receiving a Montana air quality permit.
    ARM 17.8.743(1) provides that any new or modified facility or 
emitting unit that has the potential to emit more than 25 tons per year 
of any airborne pollutant, except lead,\5\ must obtain a Montana air 
quality permit except as provided in ARM 17.8.744 and ARM 17.8.745 
before constructing, installing, modifying or operating. ARM 
17.8.431(1)(b) also requires asphalt concrete plants, mineral crushers, 
and mineral screens that have the potential to emit more than 15 tons 
per year of any airborne pollutant, other than lead, to obtain a 
Montana air quality permit. Sources excluded from the above 
requirements are those that are

[[Page 9838]]

identified in ARM 17.8.744 and ARM 17.8.745.
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    \5\ Facilities or emitting units that emit airborne lead must 
obtain a Montana air quality permit if they are new and emit greater 
than five tons per year of airborne lead, or if they are an existing 
facility or emitting unit and a modification results in an increase 
of airborne lead by an amount greater than 0.6 tons per year.
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    ARM 17.8.743(l) is similar to what was previously required in 
sections ARM 17.8.705(1)(l), (m), (n), and (o). ARM 17.8.705, which was 
repealed with the May 28, 2003 submittal, identified those sources that 
were not required to obtain a permit. ARM 17.8.705(1) listed those 
sources that were not required to obtain a permit and included: (l) 
Sources and stacks which do not have the potential to emit more than 25 
tons per years, other than lead; (m) a new stack or source of airborne 
lead whose potential to emit is less than 5 tons per year; (n) an 
alteration or modification of an already constructed stack or other 
source of lead contamination which results in an increase in maximum 
potential of the source or stack to emit airborne lead by an amount 
less than 0.6 tons per year; and (o) asphalt concrete plants and 
mineral crushers which do not have the potential to emit more than 5 
tons per year of any pollutant, other than lead.
    For the most part, the provisions that were in ARM 17.8.705(1)(l), 
(m), (n) and (o) are contained in the ARM 17.8.743(1), except that the 
permitting threshold for asphalt concrete plants and mineral crushers 
has been changed from 5 tons per year to 15 tons per year. During the 
State's rulemaking process we expressed concerns with the new permit 
threshold for asphalt concrete plants and mineral crushers. In its 
response to our comments, the State indicated that it was making the 
permit level for this source category consistent with other permitting 
thresholds in the subchapter. Also, the State indicated that for 
mineral screen operations the rule was more stringent since previously 
only mineral screens greater than 25 tons per year had to get permits.
    Since for asphalt concrete plants and mineral crushers this 
revision (ARM 17.8.743(1)(b)) reduces the stringency of the current SIP 
approved regulations, an analysis should be provided by the State 
showing that this new rule will not interfere with compliance with the 
NAAQS or 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 requirement 
of the CAA. Montana did not provide any analysis or demonstration that 
the increased permit threshold, from 5 tons per year to 15 tons per 
year, for asphalt concrete plants and mineral crushers meets these 
criteria. Montana plans on providing a 110(l) analysis at a later date. 
At the request of the State, we are taking no action on the phrase 
``asphalt concrete plants, mineral crushers'' from ARM 17.8.743(1)(b). 
We are proposing to approve the remainder of ARM 17.8.743(1)(b), which 
is ``mineral screens that have the potential to emit more than 15 tons 
per year of any airborne pollutant, other than lead, that is regulated 
under this chapter.''
    ARM 17.8.743(1) also refers to ARM 17.8.745. As indicated below, we 
are taking no action on ARM 17.8.745. Consequently, we are taking no 
action on the phrase ``and 17.8.745'' that is contained in ARM 
17.8.743(1).
    As part of the October 16, 2006 submittal, Montana requested to 
withdraw the request to include ARM 17.8.743(1)(c) into the SIP as part 
of the May 28, 2003 submission. This provision requires any incinerator 
to obtain a Montana air quality permit. This incinerator specific 
provision is not in the currently approved SIP. The approved SIP treats 
incinerator sources under the provision for ``all other sources and 
stacks not specifically excluded, which do not have the potential to 
emit more than 25 tons per year of any pollutant, other than lead'' 
(codified at ARM 17.8.743(e)). We also note that any incinerators in 
Montana that are not permitted must meet the SIP approved provisions in 
ARM 17.8.316. Therefore, we are taking no action on ARM 17.8.743(1)(c) 
and this section will not be incorporated into Montana's SIP. In 
addition, the October 16, 2006 submittal requested a revision to ARM 
17.8.743(1) to add a reference to a new rule codified at ARM 17.8.1602. 
This revision and the new rule pertain to the regulation of oil and gas 
well facilities, and we will address this revision request in a 
separate action.
    With the exceptions noted above, we are proposing to approve the 
remaining language in ARM 17.8.743(1).
    During the State's rulemaking process we expressed concerns with 
the provisions in ARM 17.8.743(2)-(5). However, after further analysis 
and for the reasons stated below, we are proposing to approve ARM 
17.8.743(2)-(5). These provisions allow only limited site preparation 
and construction, can be stopped by the State at any time, require a 
permit application completeness determination from the State before 
this type of work can occur, and exclude sources subject to Federal 
requirements (i.e., PSD and synthetic minors). EPA's regulations at 40 
CFR 51.160 do not require the issuance of a permit for the construction 
or modification of minor sources, but only that the SIP include a 
procedure to prevent the construction of a source or modification that 
would violate the SIP control strategy or interfere with attainment or 
maintenance of the NAAQS. Provision (2) of the State's regulation 
limits site work prior to permit issuance to only installing concrete 
foundation work, below-ground plumbing, installing ductwork, and other 
infrastructure and/or excavation work involving the same. No 
construction or installation of emission units will be allowed under 
this provision. Provision (3) indicates that ``Notwithstanding the 
ability to undertake the construction activities described above, the 
department may issue a letter instructing the owner or operator to 
immediately cease such activities pending a final determination on an 
application if it finds that the proposed project would result in a 
violation of the State Implementation Plan or would interfere with the 
attainment or maintenance of any Federal or State ambient air quality 
standard.'' Provision (4) indicates that the State is not obligated to 
issue an air quality permit and that an ``owner or operator who has 
received a completeness determination and who elects to engage in 
initial construction activities accepts the regulatory risks of 
engaging in such activities.'' Provision (5) indicates that ``the 
provisions of (2) do not supersede any other local, state, or federal 
requirements.'' The State has interpreted ARM 17.8.743(5), in its 
formal response to EPA's comments, to mean that ARM 17.8.743(2) ``does 
not allow pre-permit construction if some other permit or rule 
prohibits such activities. For example, if a source needs a Prevention 
of Significant Deterioration (PSD) permit, both federalFederal and 
stateState regulations require that the applicant secure the permit 
before undertaking any construction.'' The State's formal response to 
comments on this provision also stated that ``nothing in this rule 
would supersede these existing restrictions in other rules. The 
applicant would only be able to undertake limited pre-permit 
construction if it did not need a PSD permit as well.''
    EPA approved minor NSR programs in several States do not require 
permits prior to construction, but instead require sources to submit a 
notice and authorization for sources to begin construction after a 
specified time if the permitting authority does not issue an order 
preventing construction. However, all minor NSR projects above the 
permitting thresholds (25 tons per year for new sources and 15 tons per 
year for modifications (not approved into the SIP)) in Montana will 
receive a permit.

[[Page 9839]]

These projects go through the required air quality impact analysis 
before the project is approved. Additionally, all minor NSR permits go 
through a public notice and comment period before being issued.
    EPA had commented to the State that we had concerns that ARM 
17.8.743(2) does not require some type of administrative approval from 
the State prior to allowing pre-permit construction activities. EPA did 
not initially take into account the permit application completeness 
determination from the Montana Department of Environment Quality (DEQ). 
After reviewing the procedure for permit application completeness 
determination, EPA has concluded that it is an administrative approval 
which must be issued by the State prior to the start of pre-permit 
construction activities, ensuring that sources that are subject to 
Federal requirements (i.e., PSD and synthetic minors) do not begin any 
construction prior to permit issuance. Also, the State clarified in its 
response to EPA's comments that this pre-permit construction provision 
is limited to true minor sources. A true minor source is not subject to 
PSD requirements and is not subject to other Federal requirements.
    As part of our analysis of Montana's pre-permit construction 
provision we also reviewed recent EPA actions approving pre-permit 
construction rules into other State SIPs. EPA's July 10, 2006 (71 FR 
38773) approval of Mississippi's minor source permit regulations 
included a new provision entitled ``Optional Pre-Permit Construction,'' 
which allows construction to commence on certain non-major sources and 
non-major modifications prior to receiving a final permit to construct, 
provided certain conditions are met. EPA also approved pre-permit 
construction rules for the State of Idaho's permit to construct 
regulations, which were approved into the Idaho SIP on January 16, 2003 
(68 FR 2217). Both of these State provisions allow complete 
construction of the source, including the emission units, prior to 
issuance of the permit. However, these provisions preclude any actual 
operation of the new or modified source before issuance of the final 
construction permit. EPA has approved these provisions because they 
require the prior written approval of the State and have safeguards to 
ensure that new major stationary sources and major modifications do not 
commence construction prior to permit issuance. Montana's pre-permit 
construction provision differs from these other States' rules in that 
it allows only limited site preparation and construction, which does 
not include the emission units, and does not require the prior written 
approval of the State.
    As discussed above, Montana's ARM 17.8.743(2)-(5) is consistent 
with the requirements of section 110(a)(2)(C) of the CAA and Federal 
regulations found at 40 CFR 51.160 through 51.164, including 40 CFR 
51.160(b), which requires States to have legally enforceable procedures 
to prevent construction or modification of a source if it would violate 
any SIP control strategies or interfere with attainment or maintenance 
of the NAAQS. Furthermore, Montana's rule is consistent with 40 CFR 
51.160(e), which requires States to identify the basis for determining 
which facilities will be subject to review. Sources in Montana subject 
to ARM 17.8.743 must have an air quality permit prior to construction 
or modification of the emission units and prior to operation. Only 
limited site preparation and construction, which does not include the 
emission units, would be allowed at minor sources prior to issuance of 
an air quality permit. A permit application completeness determination 
from the Montana Department of Environmental Quality (Department) must 
be made before this type of work can occur. Additionally, the 
Department can require the owner or operator to immediately cease any 
pre-permit construction activities if it finds that the proposed 
project would result in a violation of the SIP or would interfere with 
the attainment or maintenance of any Federal or State ambient air 
quality standard. Finally, this proposal is consistent with prior EPA 
statements.\6\ Therefore, we are proposing approval for ARM 
17.8.743(2)-(5).
---------------------------------------------------------------------------

    \6\ NEPA's October 10, 1978, memorandum from Edward E. Reich, 
Director Division of Stationary Source Enforcement, to Thomas W. 
Devine, Chief Air Branch, Region 1, titled ``Source Construction 
Prior to Issuance of PSD Permit,'' discusses preconstruction 
activities allowed at a site with both PSD and non-PSD sources. This 
memo states that construction may begin on PSD-exempt projects 
before the permit is issued.
---------------------------------------------------------------------------

3. ARM 17.8.744 Montana Air Quality Permits--General Exclusions
    On May 28, 2003, the State submitted new section ARM 17.8.744. This 
section describes those sources that are not required to obtain a 
Montana air quality permit. This section is similar to what previously 
existed in ARM 17.8.705(1), except that: (a) Several of the provisions 
that were in ARM 17.8.705(1) were deleted or incorporated into ARM 
17.8.743(1), and (b) two provisions were added (ARM 17.8.744(1)(f) and 
(k)).
    During the State's rulemaking process we expressed concerns with 
the provisions in ARM 17.8.744(1)(f). However, after further review, we 
are proposing to approve all of ARM 17.8.744 including ARM 
17.8.744(1)(f). ARM 17.8.744(1)(f) is acceptable since this exclusion 
is limited to emergency equipment used only to alleviate adverse 
effects on public health or facility safety. In addition, this 
exclusion is limited to only minor sources, since ARM 17.8.818(1) 
states that ``a major stationary source or major modification exempted 
from the requirements of Subchapter 7 under ARM 17.8.744 or 17.8.745 
shall, if applicable, still be required to obtain a Montana air quality 
permit and comply with all applicable requirements of this 
subchapter.'' Likewise, ARM 17.8.904(1) and 17.8.1004(1) both indicate 
``a major stationary source or major modification exempted from the 
requirements of Subchapter 7 under ARM 17.8.744 or 17.8.745 * * *, 
shall, prior to construction, still be required to obtain a Montana air 
quality permit* * *''
4. ARM 17.8.745 Montana Air Quality Permits--Exclusion for De Minimis 
Changes
    On May 28, 2003, the State submitted new section ARM 17.8.745. This 
section describes those situations where a source is not required to 
obtain a Montana air quality permit under ARM 17.8.743 for de minimis 
changes. With this provision, Montana has adopted a 15 tons per year 
potential to emit increase as a de minimis limit for any pollutant 
below which no permit is required for changes.
    During the State's rulemaking process we expressed concerns with 
the de minimis level specified in this provision. Since this new 
section (ARM 17.8.745) reduces the stringency of the current SIP 
approved regulations, an analysis should be provided by the State 
showing that this new rule will not interfere with compliance with the 
NAAQS or 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 requirement 
of the CAA. Montana did not provide any analysis or demonstration that 
the new section (ARM 17.8.745) meets these criteria. Montana plans on 
providing a 110(l) analysis at a later date, as well as a revision to 
its 15 tons per year de minimus limit. At the request of the State, we 
are taking no action on

[[Page 9840]]

Montana's de minimis provision in ARM 17.8.745.
5. ARM 17.8.748 New or Modified Emitting Units--Permit Application 
Requirements
    On May 28, 2003, the State submitted new section ARM 17.8.748. This 
section describes the permit application requirements and for the most 
part is the same as what previously existed in ARM 17.8.706 with some 
minor changes. The last sentence contained in ARM 17.8.748(1) was 
originally contained in ARM 17.8.707(1)(b) and ARM 17.8.748(7) was 
originally contained in ARM 17.8.720(2)(a).
    We are proposing to approve all of ARM 17.8.748.
6. ARM 17.8.749 Conditions for Issuance or Denial of Permit
    On May 28, 2003, the State submitted new section ARM 17.8.749. This 
section describes the conditions for issuance or denial of a Montana 
air quality permit. The provisions in ARM 17.8.749(1), (3), (4), and 
(7) are similar to what previously existed in ARM 17.8.710(1), (2), 
(4), and ARM 17.7.730. The provisions in ARM 17.8.749(2), (5) and (6) 
are new provisions.
    On March 9, 2004, the State submitted revisions to ARM 17.8.749(7) 
pertaining to how the Department notifies an applicant when it denies a 
permit and advises the applicant of the right to appeal. The revisions 
allow the Department to provide such notice through the mail.
    During the State's rulemaking process, we expressed concerns with 
provisions ARM 17.8.749(2)--that allow the department to extend the 
deadlines specified in a permit and ARM 17.8.749(5)--that requires 
``state-only'' conditions be identified in the permit, and specifies 
these conditions ``are not intended by the department to be enforceable 
under federal law.'' For ARM 17.8.749(2) we were concerned that 
extended deadlines may conflict with requirements for sources subject 
to PSD. In response to our concerns, the State indicated that the 
provisions of their PSD rules (ARM 17.8.819) meet the requirements of 
40 CFR 52.21(r) and 51.166(j)(4). After further analysis we are have 
determined that ARM 17.8.749(2) allows a director's discretion, in that 
it states that ``the department may extend a deadline specified in the 
schedule'' for permit conditions to become effective. Based on this 
director's discretion we are proposing to disapprove ARM 17.8.749(2).
    For ARM 17.8.749(5) we asked for a justification as to why certain 
permit provisions would not warrant Federal (and citizen) review and 
enforceability. In response to our concerns, the State noted that they 
``have adopted certain requirements that are more stringent than 
Federal requirements,'' ``these rules are not intended to be part of 
the SIP,'' and ``during the permitting process, EPA and other concerned 
persons will have the opportunity to ensure that the Department 
correctly applies the state-only designation.'' After further analysis 
we have determined that ARM 17.8.749(5) will be used to identify State-
only provisions in permits that are more stringent than Federal 
requirements. Therefore, we are proposing to approve ARM 17.8.749(5).
    We are proposing to approve ARM 17.8.749(1), (3), (4), (5), (6) and 
(8) submitted on May 28, 2003; and ARM 17.8.749(7) submitted on March 
9, 2004.
7. ARM 17.8.752 Emission Control Requirements
    On May 28, 2003, the State submitted new section ARM 17.8.752. This 
section describes the emission control requirements for a new or 
modified facility or emission unit. The provisions in ARM 17.8.752 are 
similar to what previously existed in ARM 17.8.715, except that the 
provisions in ARM 17.8.752(1)(a)(i) are new. This new provision states 
that Montana's minor source Best Available Control Technology (BACT) 
requirement is only triggered for the modified unit at an existing 
source (not the entire source). Federal NSR regulations do not require 
BACT for minor sources. Therefore, we are proposing to approve all of 
ARM 17.8.752.
8. ARM 17.8.755 Inspection of Permit
    On May 28, 2003, the State submitted new section ARM 17.8.755. This 
section indicates that the current Montana air quality permit must be 
made available at the facility or emitting unit unless the permittee 
and Department agree on a different location. This section is similar 
to what previously existed in ARM 17.8.716, except that a new phrase 
was added indicating that a different location may be acceptable if 
mutually agreeable between the permittee and department.
    We are proposing to approve ARM 17.8.755.
9. ARM 17.8.756 Compliance With Other Requirements
    On May 28, 2003, the State submitted new section ARM 17.8.756. This 
section describes the permittee responsibilities in complying with 
other requirements. ARM 17.8.756(1) is similar to what previously 
existed in ARM 17.8.717, and ARM 17.8.756(2) and (3) is similar to what 
previously existed in ARM 17.8.710(6) and (3), respectively.
    We are proposing to approve ARM 17.8.756.
10. ARM 17.8.759 Review of Permit Applications
    On May 28, 2003, the State submitted new section ARM 17.8.759. This 
section describes the Department's responsibilities for determining 
completeness of the permit application, for issuing a preliminary 
completeness determination, for public notification and providing the 
opportunity for comment, and for issuing a final decision. Most of this 
new section is similar to what previously existed in ARM 17.8.720(2) 
and (3).
    During the State's rulemaking process we expressed concerns with 
the timeframe allowed for the public and EPA to comment on preliminary 
permit determinations. On March 9, 2004, the State submitted revisions 
to ARM 17.8.759(4). The revisions extend the date by which comments can 
be submitted on the preliminary determination for certain permit 
actions and the timeline for the department to notify the applicant of 
approval or denial of the application. On October 16, 2006, the State 
submitted additional revisions to ARM 17.8.759(4), added a new 
17.8.759(5), and renumbered the existing paragraph 17.8.759(5) to (6). 
The new 17.8.759(5) specifies, in part, that ``the department may, on 
its own action, or at the request of the applicant or member of the 
public, extend by 15 days the period within which public comments may 
be submitted as described in (4)(b)(ii) and the date for issuing a 
final decision on a permit application.'' After further analysis, we no 
longer have concerns with this provision because the Department now has 
an opportunity to extend by 15 days the period in which public comments 
may be submitted either on its own, or at the request of an external 
party. This would minimize the time crunch for reviewing draft permits.
    We are proposing to approve ARM 17.8.759(1) through (3), submitted 
on May 28, 2003; and ARM 17.8.759(4), (5), and (6) submitted on October 
16, 2006.
11. ARM 17.8.760 Additional Review of Permit Applications
    On May 28, 2003, the State submitted new section ARM 17.8.760. This 
section describes additional review requirements for applications 
subject to the Montana Environmental Policy Act and the Major Facility 
Siting Act. This section is similar to what previously existed in ARM 
17.8.720(1) and (4).

[[Page 9841]]

    We are proposing to approve ARM 17.8.760.
12. ARM 17.8.762 Duration of Permit
    On May 28, 2003, that State submitted new section ARM 17.8.762. 
This section describes the conditions that affect the duration of a 
permit. This section is similar to what previously existed in ARM 
17.8.731. Provision ARM 17.8.762(2) specifies that a permit will expire 
unless construction or installation is commenced within the time 
specified in the permit, which may not be less than one year or more 
than three years after the permit is issued. The current SIP-approved 
provision in ARM 17.8.731 does not specify a maximum time period for 
permit expiration.
    During the State's rulemaking process, we expressed concerns with 
the permit expiration timelines in ARM 17.8.762(2). We were concerned 
that extended deadlines may conflict with requirements for sources 
subject to PSD. In response to our concerns, the State indicated that a 
provision in their PSD rules (ARM 17.8.819) met the requirements of 40 
CFR 52.21(r)(2) and 51.166(j)(4). The State further indicated that this 
rule ``will not replace the PSD requirements for PSD sources (i.e., the 
18-month limit applies to PSD sources, but not to non-PSD sources).'' 
Despite the State's assertion, we note that ARM 17.8.819 does not meet 
the Federal PSD requirements of 40 CFR 52.21(r)(2), which specifies 
that ``approval to construct shall become invalid if construction is 
not commenced within 18 months after receipt of such approval.'' 40 CFR 
52.21 specifies the PSD requirements for areas that are not covered by 
a federally approved PSD SIP.
    However, the PSD requirements for SIP-approved States, such as 
Montana, contained in 40 CFR 51.166 do not have an ``18-month'' 
provision analogous to 40 CFR 52.21(r)(2). ARM 17.8.819 is consistent 
with the ``18-month phased construction project'' provision in 
51.166(j)(4). Therefore, ARM 17.8.762(2) is consistent with the Federal 
PSD rules for SIP-approved States. We are proposing to approve ARM 
17.8.762.
13. ARM 17.8.763 Revocation of Permit
    On May 28, 2003, the State submitted new section ARM 17.8.763. This 
section describes the reasons why the Department may revoke a Montana 
air quality permit, the process the Department must follow when 
revoking a permit, and the ability of the permittee to request a 
hearing before the Board. This section is similar to what previously 
existed in ARM 17.8.732.
    During the State's rulemaking process, we expressed concerns with 
the provisions in ARM 17.8.763(1) in that applicable provisions or the 
permit (e.g., major source requirements) may be inadvertently revoked 
at the request of the permittee. In response to our concerns, the State 
indicated that while some portions of a permit may be revoked, the 
permit as a whole must still meet any underlying applicable 
regulations. After further analysis, we no longer have concerns with 
these provisions because the State does not intend to revoke any 
applicable regulations, only minor administrative changes.
    On March 9, 2004, the State submitted revisions to ARM 17.8.763(2) 
and (3) pertaining to how the Department notifies an applicant when it 
revokes a permit or a portion of a permit. The revisions allow the 
Department to provide such notice through the mail.
    We are proposing to approve ARM 17.8.763 (1) and (4), submitted on 
May 28, 2003; and ARM 17.8.763(2) and (3), submitted on March 9, 2004.
14. ARM 17.8.764 Administrative Amendment to Permit
    On May 28, 2003, the State submitted new section AMR 17.8.764. This 
section describes how the Department may make administrative amendments 
to a Montana air quality permit, the process the Department must follow 
when making administrative amendments to a permit, and the ability of 
the permittee to request a hearing before the Board of. This section is 
similar to what previously existed in ARM 17.8.733, except that ARM 
17.8.764(1)(c) is a new provision.
    On March 9, 2004, the State submitted revisions to ARM 17.8.764(2) 
and (3) pertaining to how the Department notifies an applicant when it 
proposes administrative amendments to a permit. The revisions allow the 
Department to provide such notice through the mail.
    During the State's rulemaking process we raised concerns that some 
administrative amendments should receive public review even though 
there might not be an increase in emissions. In response to our 
concerns, the State indicated that the current SIP-approved rule 
contains the same provision. After further analysis, we have determined 
that new section ARM 17.8.764 is consistent with the existing SIP-
approved ARM 17.8.733.
    We are proposing to approve ARM 17.8.764(1) (except as noted below) 
and (4), submitted on May 28, 2003; and ARM 17.8.764(2) and (3) 
submitted on March 9, 2004. As indicated earlier, we are taking no 
action on ARM 17.8.745. Consequently, we are taking no action on the 
phrase ``the emission increase meets the criteria in ARM 17.8.745 for a 
de minimis change not requiring a permit,'' that is contained in ARM 
17.8.764(1)(b).
15. ARM 17.8.765 Transfer of Permit
    On May 28, 2003, the State submitted new section ARM 17.8.765. This 
section describes the requirements for transferring a Montana air 
quality permit from one location to another, and from one owner or 
operator to another. This section is similar to what previously existed 
in ARM 17.8.734, except that ARM 17.8.765(3) revises what was in ARM 
17.8.734(3). The main difference is that the prior rule required action 
by the Department to approve or disapprove the permit transfer and the 
new rule indicates that the transfer is deemed approved if the 
Department does not act within 30 days of receipt of the notice.
    During the State's rulemaking process we expressed concerns with 
the provisions in ARM 17.8.765(3) in that a source may inappropriately 
locate in an area and jeopardize attainment of the NAAQS and the permit 
transfer would be deemed approved if the Department does not act within 
30 days. In its response to our concerns, the State indicated that 
permits for portable sources are written in such a manner as to comply 
with applicable requirements regardless of location of the source. 
Consequently, we are proposing to approve all of ARM 17.8.765.
16. ARM 17.8.767 Incorporation by Reference
    On May 28, 2003, the State submitted new section ARM 17.8.767. This 
section adopts and incorporates by reference various documents and 
indicates where these documents are available. This section is similar 
to what previously existed in ARM 17.8.702.
    On October 25, 2005, the State submitted revisions to ARM 17.8.767. 
This revision deletes the incorporation by reference (IBR) of 40 CFR 
52.21 (Prevention of significant deterioration of air quality) in ARM 
17.8.767(1)(d) and modifies the addresses where various documents can 
be obtained in ARM 17.8.767(2), (3) and (4). 40 CFR 52.21 specifies the 
PSD requirements for areas that are not covered by a federally approved 
PSD SIP. Since Subchapter 7 contains the requirements for the 
permitting, construction, and operation of all air contaminant sources 
and not just PSD sources, this IBR of 40 CFR 52.21 is not necessary. 
Subchapter 8

[[Page 9842]]

contains Montana's SIP approved PSD rules.
    We are proposing to approve ARM 17.8.767(1)(a) through (c), 
submitted on May 28, 2003; and ARM 17.8.767(1)(d) through (g) and 
17.8.767(2), (3) and (4) submitted on October 25, 2005.
17. ARM 17.8.770 Additional Requirements for Incinerators
    On May 28, 2003, the State submitted new section ARM 17.8.770. This 
section discusses additional requirements an incineration facility must 
meet for a Montana air quality permit. In the prior codification of 
Subchapter 7, this section had not been incorporated into the SIP. On 
March 30, 2006, the Department requested to withdraw the request to 
include ARM 17.8.770 into the SIP as part of the May 28, 2003 
submission. Consequently, we are taking no action on ARM 17.8.770, and 
this section will not be incorporated into Montana's SIP.

C. Revisions to Other Subchapters

    On May 28, 2003, the State submitted revisions to other subchapters 
of the ARM. Because the State repealed, in Subchapter 7, various rules 
and added new rules in their place, the cross-references in other 
subchapters are being revised. In addition, the previous Subchapter 7 
referred to ``air quality preconstruction permits'' whereas the new 
Subchapter 7 refers to ``Montana air quality permits.'' In other 
subchapters, the phrase ``air quality preconstruction permits'' is 
being replaced with ``Montana air quality permits.'' Finally, new rules 
are being added and minor administrative changes are occurring in other 
subchapters.
    EPA is proposing to approve revisions to the following sections 
submitted on May 28, 2003: ARM 17.8.101(4); 7.8.110(7), (8), and (9); 
17.8.818(1); 17.8.825(3); 17.8.826(1) and (2); 17.8.904(1) and (2); 
17.8.905(1) and (4); 17.8.906; 17.8.1004; 17.8.1005(1), (2), and (5); 
17.8.1106; and 17.8.1109.
    On May 28, 2003, the State submitted revisions to ARM 
17.8.309(5)(b) and 17.8.310(3)(e). We previously disapproved the 
provisions in ARM 17.8.309(5)(b) and 17.8.310(3)(e) on January 24, 2006 
(see 40 CFR 52.1384(a)). Therefore, we are proposing to not act on the 
revisions to these same sections submitted on May 28, 2003.
    On May 28, 2003, the State submitted revisions to ARM 17.8.316(6). 
This rule pertains to the regulation of incinerators and we will 
address this revision in a separate action with other revisions to ARM 
17.8.316 submitted previously.
    We have previously approved changes to ARM 17.8.901(14) that 
incorporate the changes to ARM 17.8.901(14)(e)(iii) submitted on May 
28, 2003 (see January 24, 2006 (71 FR 3776) action). Since we have 
already approved these revisions into the SIP we are not taking action 
on them in this document.
    On October 16, 2006, the State submitted a revision to ARM 
17.8.743(1) and new rules codified at ARM 17.8.1601, 17.8.1602, 
17.8.1603, 17.8.1604, 17.8.1605, and 17.8.1606. These rules pertain to 
the regulation of oil and gas well facilities, and we will address this 
revision request in a separate action.

IV. Summary of EPA's Proposed SIP Action

    We are proposing to approve the removal of the following provisions 
from the federally- approved SIP: ARM 17.8.701, 17.8.702, 17.8.704, 
17.8.705, 17.8.706, 17.8.707, 17.8.710, 17.8.715, 17.8.716, 17.8.717, 
17.8.720, 17.8.730, 17.8.731, 17.8.732, 17.8.733, and 17.8.734.
    We are proposing to approve the following new Subchapter 7 
provisions into the federally-approved SIP: ARM 17.8.740 (except 
17.8.740(10) and (14) and the following phrases in 17.8.740(8)(a) and 
(c), respectively, (1) ``except when a permit is not required under ARM 
17.8.745;'' and (2) ``except as provided in ARM 17.8.745'' and the 
phrase ``reasonable period of time for startup and shutdown'' in ARM 
17.8.740(2)), submitted on May 28, 2003; 17.8.743 (except the phrases 
``asphalt concrete plants, mineral crushers'' in 17.8.743(1)(b) ``and 
17.8.745'' in 17.8.743(1), and 17.8.743(1)(c)), submitted on May 28, 
2003; 17.8.744 and 17.8.748, submitted on May 28, 2003; 17.8.749(1), 
(3), (4), (5), (6), and (8), submitted on May 28, 2003; 17.8.749(7), 
submitted on March 9, 2004; 17.8.752, 17.8.755, and 17.8.756, submitted 
on May 28, 2003; 17.8.759(1) through (3), submitted on May 28, 2003; 
17.8.759(4) through (6), submitted on October 16, 2006; 17.8.760 and 
17.8.762, submitted on May 28, 2003; 17.8.763(1) and (4), submitted on 
May 28, 2003; 17.8.763(2) and (3), submitted on March 9, 2004; 
17.8.764(1) (except the phrase ``the emission increase meets the 
criteria in ARM 17.8.745 for a de minimis change not requiring a 
permit'' in 17.8.764(1)(b)) and (4), submitted on May 28, 2003; 
17.8.764(2) and (3), submitted on March 9, 2004; 17.8.765, submitted on 
May 28, 2003; 17.8.767(1)(a) through (c), submitted on May 28, 2003; 
and 17.8.767(1)(d) through (g), (2), (3), and (4), submitted on October 
25, 2005.
    We are proposing to disapprove the following new Subchapter 7 
provisions: ARM 17.8.749(2), ARM 17.8.740(10), 17.8.740(14); and 
portions of 17.8.740(2).
    We are proposing to approve revisions to the following sections of 
other subchapters submitted on May 28, 2003: ARM 17.8.101(4); 
17.8.110(7), (8), and (9); 17.8.818(1); 17.8.825(3); 17.8.826(1) and 
(2); 17.8.904(1) and (2); 17.8.905(1) and (4); 17.8.906; 17.8.1004; 
17.8.1005(1), (2), and (5); 17.8.1106; and 17.8.1109.
    We are not acting, at the request of the State, on the following 
provisions in Subchapter 7: ARM 17.8.743(1)(c) and ARM 17.8.770, the 
phrase ``asphalt concrete plants, mineral crushers'' in ARM 
17.8.743(1)(b) and ARM 17.8.745 submitted on May 28, 2003.
    We are not acting on the following provisions of other subchapters: 
The following phrases in 17.8.740(8)(a) and (c), respectively, (1) 
``except when a permit is not required under ARM 17.8.745'' and (2) 
``except as provided in ARM 17.8.745,'' submitted on May 28, 2003; ARM 
17.8.309(5)(b), 17.8.310(3)(e), 17.8.316(6), and 17.8.901(14)(3)(iii), 
submitted on May 28, 2003; the phrase ``and 17.8.745'' in ARM 
17.8.743(1), submitted on May 28, 2003; ARM 17.8.749(2) submitted on 
May 28, 2003; and the phrase ``the emission increase meets the criteria 
in ARM 17.8.745 for a de minimis change not requiring a permit,'' in 
ARM 17.8.764(1)(b), submitted on May 28, 2003; and ARM 17.8.743(1), 
17.8.1601, 17.8.1602, 17.8.1603, 17.8.1604, 17.8.1605, and 17.8.1606, 
submitted on October 16, 2006.

V. 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 proposed 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.);

[[Page 9843]]

     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.

List of Subjects in 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, Incorporation by reference.

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

    Dated: February 3, 2010.
Carol Rushin,
Acting Regional Administrator, Region 8.
[FR Doc. 2010-4559 Filed 3-3-10; 8:45 am]
BILLING CODE 6560-50-P