[Federal Register Volume 76, Number 97 (Thursday, May 19, 2011)]
[Proposed Rules]
[Pages 28934-28942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12357]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2010-0298; FRL-9308-5]


Approval and Disapproval and Promulgation of State Implementation 
Plan Revisions; Infrastructure Requirements for the 1997 8-Hour Ozone 
National Ambient Air Quality Standards; Montana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed Rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to partially approve and partially disapprove 
the State Implementation Plan (SIP) submission from the State of 
Montana to demonstrate that the SIP meets the requirements of sections 
110(a)(1) and (2) of the Clean Air Act (CAA) for the National Ambient 
Air Quality Standards (NAAQS) promulgated for ozone on July 18, 1997. 
Section 110(a)(1) of the CAA requires that each state, after a new or 
revised NAAQS is promulgated, review their SIPs to ensure that they 
meet the requirements of the ``infrastructure elements'' of section 
110(a)(2). The State of Montana submitted two certifications of their 
infrastructure SIP for the 1997 ozone NAAQS, dated November 28, 2007, 
which was determined to be complete on March 27, 2008 (73 FR 16205), 
and December 22, 2009.
    EPA does not propose to act on the State's November 28, 2007 and 
December 22, 2009, submissions to meet the requirements of section 
110(a)(2)(D)(i) of the CAA, relating to interstate transport of air 
pollution, for the 1997 ozone NAAQS. EPA approved the State's 
interstate transport SIP submission on February 26, 2008 (73 FR 10150).

DATES: Written comments must be received on or before June 20, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2010-0298, by one of the following methods:

[[Page 28935]]

     http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Director, Air Program, Environmental Protection 
Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129.
     Hand Delivery: Director, Air Program, Environmental 
Protection Agency (EPA), Region 8, Mail Code 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-
2010-0298. 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: Kathy Dolan, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. 303-312-6142, 
[email protected].

SUPPLEMENTARY INFORMATION:

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.

Table of Contents

I. General Information
II. Background
III. What infrastructure elements are required under sections 
110(a)(1) and (2)?
IV. How did the State of Montana address the infrastructure elements 
of sections 110(a)(1) and (2)?
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews

I. General Information

What should I consider as I prepare my comments for EPA?

    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI 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 on 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:
    Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register, date, and page number);
    Follow directions and organize your comments;
    Explain why you agree or disagree;
    Suggest alternatives and substitute language for your requested 
changes;
    Describe any assumptions and provide any technical information and/
or data that you used;
    If you estimate potential costs or burdens, explain how you arrived 
at your estimate in sufficient detail to allow for it to be reproduced;
    Provide specific examples to illustrate your concerns, and suggest 
alternatives;
    Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats; and,
    Make sure to submit your comments by the comment period deadline 
identified.

II. Background

    On July 18, 1997, EPA promulgated new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the 
previous 1-hour averaging period, and the level of the NAAQS was 
changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). By 
statute, SIPs meeting the requirements of sections 110(a)(1) and (2) 
are to be submitted by states within three years after promulgation of 
a new or revised standard. Section 110(a)(2) provides basic 
requirements for SIPs, including emissions inventories, monitoring, and 
modeling, to assure attainment and maintenance of the standards. These 
requirements are set out in several ``infrastructure elements,'' listed 
in section 110(a)(2).
    Section 110(a) imposes the obligation upon states to make a SIP 
submission to EPA for a new or revised NAAQS, and the contents of that 
submission may vary depending upon the facts and circumstances. In 
particular, the data and analytical tools available at the time

[[Page 28936]]

the state develops and submits the SIP for a new or revised NAAQS 
affects the content of the submission. The contents of such SIP 
submissions may also vary depending upon what provisions the state's 
existing SIP already contains. In the case of the 1997 ozone NAAQS, 
states typically have met the basic program elements required in 
section 110(a)(2) through earlier SIP submissions in connection with 
previous NAAQS. In a guidance issued on October 2, 2007, EPA noted 
that, to the extent an existing SIP already meets the section 110(a)(2) 
requirements, states need only to certify that fact via a letter to 
EPA.\1\
---------------------------------------------------------------------------

    \1\ Memorandum from William T. Harnett, Director, Air Quality 
Policy Division, ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards'' (Oct. 2, 2007).
---------------------------------------------------------------------------

    On March 27, 2008, EPA published a final rule entitled, 
``Completeness Findings for Section 110(a) State Implementation Plans 
for the 8-hour Ozone NAAQS'' (73 FR 16205). In the rule, EPA made a 
finding for each state that it had submitted or had failed to submit a 
complete SIP that provided the basic program elements of section 
110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. In 
particular, EPA found that the State of Montana had submitted a 
complete SIP to meet these requirements.

III. What infrastructure elements are required under sections 110(a)(1) 
and (2)?

    Section 110(a)(1) provides the procedural and timing requirements 
for SIP submissions after a new or revised NAAQS is promulgated. 
Section 110(a)(2) lists specific elements the SIP must contain or 
satisfy. These infrastructure elements include requirements, such as 
modeling, monitoring, and emissions inventories, which are designed to 
assure attainment and maintenance of the NAAQS. The elements that are 
the subject of this action are listed below.
     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control measures.
     110(a)(2)(D)(ii): Interstate and international pollution.
     110(a)(2)(E): Adequate resources and authority.
     110(a)(2)(F): Stationary source monitoring and reporting.
     110(a)(2)(G): Emergency powers.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(J): Consultation with government officials; 
public notification; and prevention of significant deterioration (PSD) 
and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.
    A detailed discussion of each of these elements is contained in the 
next section.
    Two elements identified in section 110(a)(2) are not governed by 
the three year submission deadline of section 110(a)(1) and are 
therefore not addressed in this action. These elements relate to part D 
of Title I of the CAA, and submissions to satisfy them are not due 
within three years after promulgation of a new or revised NAAQS, but 
rather are due at the same time nonattainment area plan requirements 
are due under section 172. The two elements are: (i) section 
110(a)(2)(C) to the extent it refers to permit programs (known as 
``nonattainment new source review (NSR)'') required under part D, and 
(ii) section 110(a)(2)(I), pertaining to the nonattainment planning 
requirements of part D. As a result, this action does not address 
infrastructure elements related to the nonattainment NSR portion of 
section 110(a)(2)(C) or related to 110(a)(2)(I).
    This action also does not address the ``interstate transport'' 
requirements of element 110(a)(2)(D)(i). In a separate action, EPA 
approved the State's submission to meet the requirements of 
110(a)(2)(D)(i) for the 1997 ozone NAAQS (73 FR 10150).

IV. How did the State of Montana address the infrastructure elements of 
sections 110(a)(1) and (2)?

    1. Emission limits and other control measures: Section 110(a)(2)(A) 
requires SIPs to include enforceable emission limitations and other 
control measures, means, or techniques (including economic incentives 
such as fees, marketable permits, and auctions of emissions rights), as 
well as schedules and timetables for compliance as may be necessary or 
appropriate to meet the applicable requirements of this Act.
    a. Montana's response to this requirement: Enforceable control 
measures exist to protect the ozone NAAQS throughout the State. Montana 
implements a stationary source permit program which requires subject 
sources to demonstrate emissions will not cause or contribute to a 
violation of any NAAQS (Administrative Rules of Montana (ARM) 
17.8.749). Subject sources are further required to utilize best 
available control technology (BACT) when installing emission controls 
(ARM 17.8.752). Montana also regulates open burning and subjects those 
conducting open burning to BACT requirements as well (Title 17, Chapter 
8, Subchapter 6).
    Except for specific control measures adopted in Montana Board of 
Environmental Review (BER) orders, the emission limits and other air 
pollution control regulations are contained in the following 
subchapters of Title 17, Chapter 8, ARM: Subchapter 1--General 
Provisions; Subchapter 2--Emission Standards; Subchapter 4--Stack 
Heights and Dispersion Techniques; Subchapter 6--Open Burning; 
Subchapter 7--Permit, Construction and Operation of Air Contaminant 
Sources; Subchapter 8--Prevention of Significant Deterioration of Air 
Quality; Subchapter 9--Permit Requirements for Major Stationary Sources 
or Major Modifications Locating within Nonattainment Areas; Subchapter 
10--Preconstruction Permit Requirements for Major Stationary Sources or 
Major Modifications Locating within Attainment or Unclassified Areas; 
Subchapter 16--Emission Control Requirements for Oil and Gas Well 
Facilities Operating Prior to Issuance of a Montana Air Quality Permit.

----------------------------------------------------------------------------------------------------------------
             State rule(s)                       Federal action \2\                    Action reference
----------------------------------------------------------------------------------------------------------------
ARM 17.8.101 et seq...................  approved...........................  60 FR 3615.
ARM 17.8.301 et seq...................  approved...........................  44 FR 14036.
ARM 17.8.401 et seq...................  approved...........................  60 FR 36715.
ARM 17.8.601 et seq...................  approved...........................  61 FR 54947.
ARM 17.8.701 et seq...................  approved...........................  60 FR 36715.
ARM 17.8.801 et seq...................  approved...........................  60 FR 36715.
ARM 17.8.901 et seq...................  approved...........................  60 FR 36715.
ARM 17.8.1001 et seq..................  approved...........................  60 FR 36715.

[[Page 28937]]

 
ARM 17.8.1601 et seq..................  approved...........................  60 FR 36715.
----------------------------------------------------------------------------------------------------------------

     
---------------------------------------------------------------------------

    \2\ In its certification, Montana noted here and elsewhere that 
EPA has subsequently approved revisions to the cited provisions and 
in some instances Montana has submitted revisions to the provisions 
but EPA has not yet taken action on them.
---------------------------------------------------------------------------

    b. EPA analysis: Montana's SIP meets the requirements of CAA 
section 110(a)(2)(A) for the 1997 ozone NAAQS, subject to the following 
clarifications. First, this infrastructure element does not require the 
submittal of regulations or emission limitations developed specifically 
for attaining the 1997 ozone NAAQS. Furthermore, Montana has no areas 
designated as nonattainment for the 1997 ozone NAAQS. Montana primarily 
regulates emissions of ozone and ozone precursors through its SIP-
approved major and minor source permitting programs. The SIP also 
contains limitations for emissions of hydrocarbons from storage and 
processing of petroleum products. See ARM 17.8.324. This suffices, in 
the case of Montana, to meet the requirements of 110(a)(2)(A) for the 
1997 ozone NAAQS.
    Second, in this action, EPA is not proposing to approve or 
disapprove any existing state rules with regard to director's 
discretion or variance provisions. A number of states have such 
provisions which are contrary to the CAA and existing EPA guidance (52 
FR 45109, Nov. 24, 1987), and the Agency plans to take action in the 
future to address such state regulations. In the meantime, EPA 
encourages any state having a director's discretion or variance 
provision which is contrary to the CAA and EPA guidance to take steps 
to correct the deficiency as soon as possible.
    Finally, in this action, EPA is also not proposing to approve or 
disapprove any existing SIP provisions with regard to excess emissions 
during startup, shutdown, or malfunction (SSM) of operations at a 
facility. A number of states have SSM provisions which are contrary to 
the CAA and existing EPA guidance \3\ and the Agency plans to address 
such state regulations in the future. In the meantime, EPA encourages 
any state having a deficient SSM provision to take steps to correct it 
as soon as possible.
---------------------------------------------------------------------------

    \3\ Steven Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Robert Perciasepe, Assistant Administrator 
for Air and Radiation, Memorandum to EPA Air Division Directors, 
``State Implementation Plans (SIPs): Policy Regarding Excess 
Emissions During Malfunctions, Startup, and Shutdown.'' (Sept. 20, 
1999).
---------------------------------------------------------------------------

    2. Ambient air quality monitoring/data system: Section 110(a)(2)(B) 
requires SIPs to provide for establishment and operation of appropriate 
devices, methods, systems, and procedures necessary to (i) monitor, 
compile, and analyze data on ambient air quality, and (ii) upon 
request, make such data available to the Administrator.
    a. Montana's response to this requirement: On an annual basis, the 
Department of Environmental Quality (``Department'' or ``DEQ'') 
evaluates trends in industrial and economic development, meteorology, 
and population growth and makes other scientific, social, and 
geographic observations regarding areas of the State which may be 
adversely affected by the impact of criteria pollutants. Based on this 
information, the Department identifies potential air pollution 
``hotspots.'' The Department, with participation and input from local 
control program staff and other interested persons, makes decisions 
regarding monitor type, location, and schedules for monitoring air 
quality in these hotspots. The Department makes the product of this 
decision making process, the annual monitoring network plan, available 
for public inspection prior to submission to EPA.
    Pursuant to its Quality Assurance Project Plans, the Department 
makes arrangements to operate and maintain Federal reference monitors 
and establishes Federally-approved protocols for sample collection, 
handling, and analysis. Ambient air monitoring data is subject to 
strict quality assurance/quality control processes. Air monitoring data 
is included in the AIRS database.
    Montana has monitored the Billings area for ambient ozone levels 
since June 2005. No exeedences have been recorded.
    The provisions in state law for the collection and analysis of 
ambient air quality data are contained in the CAA of Montana (MT CAA), 
75-2-101 et seq., MCA, and, specifically, 75-2-112, MCA, Powers and 
Responsibilities of Department.
    b. EPA analysis: Montana's air monitoring programs and data systems 
meet the requirements of CAA section 110(a)(2)(B) for the 1997 ozone 
NAAQS. The 2009-2010 Montana Annual Monitoring Network Plan (AMNP), 
dated June 2009, was approved by EPA Region 8 on August 24, 2010.
    3. Program for enforcement of control measures: Section 
110(a)(2)(C) requires SIPs to include a program to provide for the 
enforcement of the measures described in subparagraph (A), and 
regulation of the modification and construction of any stationary 
source within the areas covered by the plan as necessary to assure that 
NAAQS are achieved, including a permit program as required in parts C 
and D.
    a. Montana's response to this requirement: Congress directed states 
to develop and implement measures to prevent significant deterioration 
(PSD) of air quality pursuant to 42 U.S.C. 7470, et seq. and 7501, et 
seq. Pursuant to ARM 17.8.130, sources subject to the provisions of 
Title 17, Chapter 8, subchapters 8, 9, and 10, ARM, regulating 
construction of new or modified stationary sources consistent with PSD 
and NSR requirements, shall be subject to enforcement. The Department 
has the authority to issue a notice of violation, complaint regarding 
the source violation, and an order to take corrective action.

------------------------------------------------------------------------
        State rule(s)           Federal action      Action reference
------------------------------------------------------------------------
ARM 17.8.130.................  Approved.......  71 FR 3770.
ARM 17.8.801 et seq..........  Approved.......  60 FR 36715.
ARM 17.8.901 et seq..........  Approved.......  60 FR 36715.
ARM 17.8.1001 et seq.........  Approved.......  60 FR 36715.
------------------------------------------------------------------------


[[Page 28938]]

    The provisions in state law for the enforcement of emission 
limitations and other control measures, means or techniques is 
contained in the MT CAA, 75-2-101 et seq., MCA, and specifically, 75-2-
111, MCA, Powers of the Board and 75-2-112, MCA, Powers and 
Responsibilities of Department.
    b. EPA analysis: To generally meet the requirements of section 
110(a)(2)(C), the State is required to have SIP-approved PSD, 
nonattainment NSR, and minor NSR permitting programs adequate to 
implement the 1997 8-hour ozone NAAQS. As explained above, in this 
action EPA is not evaluating nonattainment related provisions, such as 
the nonattainment NSR program required by part D of the Act. In 
addition, Montana has no nonattainment areas for the 1997 ozone NAAQS 
and is therefore not required at this point to have a corresponding 
nonattainment NSR program. In this action, EPA is evaluating the 
State's PSD program as required by part C of the Act, and the State's 
minor NSR program as required by 110(a)(2)(C).
    Montana has a SIP-approved PSD program that generally meets the 
requirements of part C of the Act. However, in order for the State's 
SIP-approved PSD program to satisfy the requirements of section 
110(a)(2)(C) for the 1997 ozone NAAQS, the program must properly 
regulate ozone precursors. On November 29, 2005, EPA promulgated the 
phase 2 implementation rule for the 1997 ozone NAAQS, which includes 
requirements for PSD programs to treat nitrogen oxides as a precursor 
for ozone (72 FR 71612). The State's approved PSD program does not 
satisfy the requirements of the phase 2 implementation rule.\4\ 
Furthermore, the State has not submitted a revision to the program to 
address this deficiency. As a result, the SIP does not satisfy, for the 
1997 ozone NAAQS, the requirement of element 110(a)(2)(C) for the SIP 
to include a permit program as required in part C of Title I of the 
Act. EPA therefore proposes to disapprove the Montana infrastructure 
SIP for the 1997 ozone NAAQS for this requirement.
---------------------------------------------------------------------------

    \4\ In particular, the State's definitions of ``major stationary 
source,'' ARM 17.8.801(22)(b), ``net emissions increase,'' ARM 
17.8.801(24), and ``significant,'' ARM 17.8.801(27)(a), do not meet 
the corresponding requirements in, respectively, 40 CFR 
51.166(b)(1)(i)(c)(ii), 51.166(b)(2)(ii), and 51.166(b)(23)(i) with 
regard to treating nitrogen oxides as an ozone precursor. In 
addition, the definition of ``air pollutant'' used in the State's 
PSD program does not meet the requirements of 40 CFR 
51.166(49)(i)(a) regarding identifying nitrogen oxides as an ozone 
precursor. See 72 FR at 71699.
---------------------------------------------------------------------------

    Turning to minor NSR, EPA is proposing to approve Montana's 
infrastructure SIP for the 1997 ozone NAAQS with respect to the general 
requirement in section 110(a)(2)(C) to include a program in the SIP 
that regulates the modification and construction of any stationary 
source as necessary to assure that the NAAQS are achieved. (See ARM 
Chapter 17.8, Subchapter 7.) EPA is not proposing to approve or 
disapprove the State's existing minor NSR program itself to the extent 
that it is inconsistent with EPA's regulations governing this program. 
A number of states may have minor NSR provisions that are contrary to 
the existing EPA regulations for this program. EPA intends to work with 
states to reconcile state minor NSR programs with EPA's regulatory 
provisions for the program. The statutory requirements of section 
110(a)(2)(C) provide for considerable flexibility in designing minor 
NSR programs, and it may be time to revisit the regulatory requirements 
for this program to give the states an appropriate level of flexibility 
to design a program that meets their particular air quality concerns, 
while assuring reasonable consistency across the country in protecting 
the NAAQS with respect to new and modified minor sources.
    4. Interstate transport: Section 110(a)(2)(D)(i) requires SIPs to 
contain adequate provisions prohibiting, consistent with the provisions 
of this title, any source or other type of emissions activity within 
the state from emitting any air pollutant in amounts which will (I) 
contribute significantly to nonattainment in, or interfere with 
maintenance by, any other state, with respect to any such national 
primary or secondary ambient air quality standard, or (II) interfere 
with measures required to be included in the applicable implementation 
plan for any other state under part C to prevent significant 
deterioration of air quality or to protect visibility.
    a. EPA Analysis: EPA approved the State's Interstate Transport 
provisions for the 1997 ozone and PM2.5 NAAQS on February 
26, 2008 (73 FR 10150). EPA is taking no action relevant to section 
110(a)(2)(D)(i) in this proposal.
    5. Interstate and International transport provisions: Section 
110(a)(2)(D)(ii) requires that each SIP shall contain adequate 
provisions insuring compliance with applicable requirements of sections 
126 and 115 (relating to interstate and international pollution 
abatement).
    a. Montana's response to this requirement: Although Montana 
certified that its SIP met the requirements of sections 110(a)(1) and 
(2) generally and 110(a)(2)(D) specifically, Montana did not identify 
particular provisions to meet this requirement.
    b. EPA Analysis: Section 126(a) requires notification to affected, 
nearby states of major proposed new (or modified) sources. Sections 
126(b) and (c) pertain to petitions by affected states to the 
Administrator regarding sources violating the ``interstate transport'' 
provisions of section 110(a)(2)(D)(i). Section 115 similarly pertains 
to international transport of air pollution.
    As required by 40 CFR 51.166(q)(2)(iv), Montana's SIP-approved PSD 
program requires notice to states whose lands may be affected by the 
emissions of sources subject to PSD. See ARM 17.8.826(2)(d). This 
suffices to meet the notice requirement of section 126(a).
    Montana has no pending obligations under sections 126(c) or 115(b); 
therefore, its SIP currently meets the requirements of those sections. 
In summary, the SIP meets the requirements of 110(a)(2)(D)(ii) for the 
1997 ozone NAAQS.
    6. Adequate resources and authority: Section 110(a)(2)(E) requires 
states to provide (i) necessary assurances that the state will have 
adequate personnel, funding, and authority under state law to carry out 
the SIP (and is not prohibited by any provision of Federal or state law 
from carrying out the SIP or portion thereof), (ii) requires that the 
state comply with the requirements respecting state boards under 
section 128, and (iii) necessary assurances that, where the state has 
relied on a local or regional government, agency, or instrumentality 
for the implementation of any SIP provision, the state has 
responsibility for ensuring adequate implementation of such SIP 
provision.
    a. Montana's response to this requirement: No state or Federal 
provisions prohibit the implementation of any provision of the Montana 
SIP. Montana devotes adequate resources to SIP development and 
maintenance sufficient to ensure attainment and maintenance of the 
NAAQS for ozone.
    Montana receives from EPA grant monies intended to fund programs to 
protect NAAQS. Montana allocates a portion of the EPA grant money to 
fund SIP activities for attainment and maintenance of the NAAQS. 
Montana imposes and collects fees from permit applicants. Montana 
allocates all of the permit fee revenue to activities associated with 
permitting and compliance of regulated sources of air pollutants, 
including criteria pollutant emissions. Montana also receives state 
general funds to conduct state air

[[Page 28939]]

quality program activities. Montana allocates all state general funding 
to non-permit air program activities including SIP programs for 
attainment and maintenance of the NAAQS.
    The Air Resources Management Bureau has 50 fulltime equivalent 
positions with an annual budget of $6.3 million for fiscal year 2010. 
The program funding is broken down as follows: $163,536 from state 
general funds, $1,643,940 from Federal grants, and $4,546,047 from 
stationary source fees.
    The provisions in State law providing for adequate resources are 
contained in the MT CAA, 75-2-101 et seq., MCA. More specifically, 
those provisions are contained in 75-2-102, MCA, Intent--Policy and 
Purpose; 75-2-111, MCA, Powers of the Board and 75-2-112, MCA, Powers 
and Responsibilities of Department.
    The Montana Board of Environmental Review (BER) oversees the 
Montana DEQ, including actions taken by the State air program. The 
composition and requirements of the BER are detailed in 2-15-3502, MCA, 
2-15-121, MCA, and 2-15-124, MCA. Laws related to conflict of interest 
in Montana state government are found in 2-2-201, MCA, and 2-2-202, 
MCA.
    b. EPA Analysis: The provisions contained in 75-2-102, MCA, 75-2-
111, MCA, and 75-2-112, MCA, provide adequate authority for the State 
of Montana and the DEQ to carry out its SIP obligations with respect to 
the 1997 ozone NAAQS. The State receives sections 103 and 105 grant 
funds through its Performance Partnership Grant along with required 
state matching funds to provide funding necessary to carry out 
Montana's SIP requirements. EPA therefore proposes to approve the 
Montana infrastructure SIP with regards to the requirements of section 
110(a)(2)(E) for the 1997 ozone NAAQS.
    7. Stationary source monitoring system: Section 110(a)(2)(F) 
requires (i) the installation, maintenance, and replacement of 
equipment, and the implementation of other necessary steps, by owners 
or operators of stationary sources to monitor emissions from such 
sources, (ii) periodic reports on the nature and amounts of emissions 
and emissions-related data from such sources, and (iii) correlation of 
such reports by the state agency with any emission limitations or 
standards established pursuant to the Act, which reports shall be 
available at reasonable times for public inspection.
    a. Montana's response to this requirement: Montana requires 
stationary sources subject to State regulation to annually submit all 
information necessary to complete a source emissions inventory. 
Affected permits require emissions monitoring from stationary sources 
of air pollution. Further, on an annual basis the Department compiles a 
State emissions inventory of all regulated sources for the evaluation 
of compliance with applicable standards and inclusion in EPA databases.

----------------------------------------------------------------------------------------------------------------
             State rule(s)                         Federal action                      Action reference
----------------------------------------------------------------------------------------------------------------
ARM 17.8.105..........................  Approved...........................  66 FR 42427.
ARM 17.8.106..........................  Approved...........................  66 FR 42427.
ARM 17.8.505..........................  Not submitted......................  State only rule.
----------------------------------------------------------------------------------------------------------------

    b. EPA Analysis: The provisions cited by Montana (ARM 17.8.105 and 
17.8.106) pertain to testing requirements and protocols. Montana also 
incorporates by reference 40 CFR part 51, appendix P, regarding minimum 
monitoring requirements. (See ARM 17.8.103(1)(D)). In addition, Montana 
provides for monitoring, recordkeeping, and reporting requirements for 
sources subject to minor and major source permitting. EPA therefore 
proposes to approve Montana's infrastructure SIP with regards to the 
requirements of section 110(a)(2)(F) for the 1997 ozone NAAQS.
    8. Emergency powers: Section 110(a)(2)(G) requires states to 
provide for authority to address activities causing imminent and 
substantial endangerment to public health, including contingency plans 
to implement the emergency episode provisions in their SIPs.
    a. Montana's response to this requirement: On January 3, 2006, EPA 
approved Montana's Emergency Episode Avoidance Plan (EEAP) in 71 FR 19. 
Montana's EEAP made provision for emergency control of all criteria 
pollutants. Under authority granted by section 75-2-402, MCA, Emergency 
Procedures, and the Montana's EEAP, the Department may order sources of 
pollution to limit or cease emissions. The Montana CAA is not subject 
to approval by EPA.
    b. EPA analysis: Section 75-2-402 of the MCA provides DEQ with 
general emergency authority comparable to that in section 303 of the 
Act. EPA last approved revisions to the EEAP on January 3, 2006 (71 FR 
19). The EEAP meets the requirements of 40 CFR part 51, Subpart H. The 
SIP therefore meets the requirements of 110(a)(2)(G) for the 1997 ozone 
NAAQS.
    9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs 
provide for revision of such plan (i) from time to time as may be 
necessary to take account of revisions of such national primary or 
secondary ambient air quality standard or the availability of improved 
or more expeditious methods of attaining such standard, and (ii), 
except as provided in paragraph 110(a)(3)(C), whenever the 
Administrator finds on the basis of information available to the 
Administrator that the SIP is substantially inadequate to attain the 
NAAQS which it implements or to otherwise comply with any additional 
requirements under this Act.
    a. Montana's response to this requirement: The Montana CAA invests 
in the BER the authority to adopt, amend, and repeal rules for 
administering implementing, and enforcing rules promulgated to regulate 
emissions of air pollutants, including rules necessary to establish 
measures to attain and maintain the NAAQS. The Governor submits, for 
inclusion into the SIP, rules determined to be necessary to attain and 
maintain the NAAQS.
    The provisions in state law providing for adoption of rules and 
regulations are contained in the Montana CAA, 75-2-101 et seq., MCA. 
More specifically, those provisions are contained in 75-2-102, MCA, 
Intent--Policy and Purpose; 75-2-111, MCA, Powers of the Board, and 75-
2-112, MCA, Powers and Responsibilities of Department.
    b. EPA analysis: Montana's statutory provisions in the Montana CAA 
at 75-2-101 et seq., give the BER sufficient authority to meet the 
requirements of 110(a)(2)(H).
    10. Nonattainment Area Plan or Plan Revision under Part D: Section 
110(a)(2)(I) requires that a SIP or SIP revision for an area designated 
as a nonattainment area must meet the applicable requirements of part D 
of title I of the Act (relating to nonattainment areas).
    a. Montana's response to this requirement: All control plans for 
non-attainment areas in Montana are

[[Page 28940]]

prepared in accordance with the applicable requirements of 42 U.S.C. 
7501-7505. There are no ozone nonattainment areas in Montana.
    b. EPA analysis for Section 110(a)(2)(I): As noted above, the 
specific nonattainment area plan requirements of section 110(a)(2)(I) 
are subject to the timing requirement of section 172, not the timing 
requirement of section 110(a)(1). This element is therefore not 
applicable to this action. EPA will take action on part D attainment 
plans through a separate process.
    11. Consultation with government officials, public notification, 
PSD and visibility protection: Section 110(a)(2)(J) requires that each 
SIP meet the applicable requirements of section 121 of this title 
(relating to consultation), section 127 of this title (relating to 
public notification), and part C of title I of the Act (relating to PSD 
of air quality and visibility protection).
    a. Montana's response to this requirement: Montana satisfies EPA's 
requirements for intergovernmental relations, see 59 FR 2988. Montana 
has not changed or revoked consultation processes since that time. 
Montana holds public meetings and hearings on all SIP revisions in 
accordance with 40 CFR part 51, Appendix V and Montana's open meeting 
laws. See 3-2-203, MCA.\5\
---------------------------------------------------------------------------

    \5\ Montana's certification cited MCA 2-2-203, which appears to 
be a typographical error.
---------------------------------------------------------------------------

    On January 3, 2006, EPA approved Montana's EEAP in 71 FR 19. 
Montana's EEAP provides for all criteria pollutants, including ozone. 
The EEAP contains provisions for disseminating information regarding an 
exeedence of the NAAQS to appropriate news media, health officials, law 
enforcement, and others. The Department notice includes recommendations 
for actions citizens may take to reduce the impact of their activities 
and reduce their exposure. Montana also complies with 40 CFR 51.930 
during exceptional events.
    Congress directed states to develop and implement measures to 
prevent significant deterioration of air quality pursuant to 42 U.S.C. 
7471. Montana adopted permitting requirements for major sources 
proposing to modify or construct; PSD rules in subchapter 8 and 
nonattainment New Source Review rules in subchapter 10 of Title 17, 
Chapter 8, ARM. Montana continues to implement and enforce these rules. 
Montana consults with Federal Land Managers as needed and/or required.

----------------------------------------------------------------------------------------------------------------
             State rule(s)                         Federal action                      Action reference
----------------------------------------------------------------------------------------------------------------
ARM 17.8.801 et seq...................  Approved...........................  60 FR 36715.
ARM 17.8.1001 et seq..................  Approved...........................  60 FR 36715.
----------------------------------------------------------------------------------------------------------------

    b. EPA Analysis: The State has demonstrated that it has the 
authority and rules in place to provide a process of consultation with 
general purpose local governments, designated organizations of elected 
officials of local governments and any Federal Land Manager having 
authority over Federal land to which the SIP applies, consistent with 
the requirements of CAA section 121. Furthermore, Montana's EEAP, 
approved into the SIP, meets the requirements of CAA section 127.
    Turning to the requirement in section 110(a)(2)(J) that the SIP 
meet the applicable requirements of part C of title I of the Act, EPA 
has evaluated this requirement in the context of infrastructure element 
(C) in section IV.3 above. As discussed there, EPA proposes to 
disapprove Montana's infrastructure SIP for the requirement in 
110(a)(2)(C) that the SIP include a permit program as required in part 
C, on the basis that Montana's SIP-approved PSD program does not 
properly regulate nitrogen oxides as an ozone precursor. For the same 
reason, EPA proposes to disapprove Montana's infrastructure SIP with 
regards to the requirement in section 110(a)(2)(J) that the SIP meet 
the applicable requirements of part C of title I the Act.
    Finally, with regard to the applicable requirements for visibility 
protection, EPA recognizes that states are subject to visibility and 
regional haze program requirements under part C of the act. In the 
event of the establishment of a new NAAQS, however, the visibility and 
regional haze program requirements under part C do not change. Thus we 
find that there is no new visibility obligation ``triggered'' under 
section 110(a)(2)(J) when a new NAAQS becomes effective.
    In conclusion, the Montana SIP meets the requirements of section 
110(a)(2)(J) for the 1997 ozone NAAQS with regards to sections 121 and 
127 of the Act, and does not meet the requirements of section 
110(a)(2)(J) for the 1997 ozone NAAQS with regards to meeting the 
applicable requirements of part C relating to PSD.
    12. Air quality and modeling/data: Section 110(a)(2)(K) requires 
that each SIP provide for (i) the performance of such air quality 
modeling as the Administrator may prescribe for the purpose of 
predicting the effect on ambient air quality of any emissions of any 
air pollutant for which the Administrator has established a NAAQS, and 
(ii) the submission, upon request, of data related to such air quality 
modeling to the Administrator.
    a. Montana's response to this requirement: Montana requires an 
applicant proposing to construct or modify a source of criteria 
pollutants to demonstrate the facility can be expected to operate in 
compliance with applicable law and that it will not cause or contribute 
to a violation of any NAAQS. Sources subject to the provisions of Title 
17, Chapter 8, Subchapters 7, 8, 9, and 10, ARM (regulating 
construction of new or modified major stationary sources consistent 
with PSD and New Source Review (NSR) requirements) shall demonstrate 
the facility can be expected to operate in compliance with applicable 
law and that it will not cause or contribute to a violation of any 
NAAQS.

----------------------------------------------------------------------------------------------------------------
             State rule(s)                         Federal action                      Action reference
----------------------------------------------------------------------------------------------------------------
ARM 17.8.701 et seq...................  Approved...........................  60 FR 36715.
ARM 17.8.801 et seq...................  Approved...........................  60 FR 36715.
ARM 17.8.901 et seq...................  Approved...........................  60 FR 36715.
ARM 17.8.1001 et seq..................  Approved...........................  60 FR 36715.
----------------------------------------------------------------------------------------------------------------


[[Page 28941]]

    Absent any privacy restrictions regarding the release of 
proprietary business information, all preconstruction data and analysis 
regarding the results of source predictive modeling for purposes of 
NAAQS compliance is public information available for anyone, including 
EPA, to review upon request.
    b. EPA Analysis: Montana's SIP meets the requirements of CAA 
section 110(a)(2)(K) for the 1997 ozone NAAQS. In particular, Montana's 
PSD program (see ARM 17.8.821(1)) requires estimates of ambient air 
concentrations to be based on the applicable air quality models, data 
bases, and other requirements specified in Appendix W of 40 CFR part 
51, pertaining to the Guidelines on Air Quality Models. As a result, 
the SIP provides for such air quality modeling as the Administrator has 
prescribed.
    13. Permitting fees: Section 110(a)(2)(L) requires SIPs to require 
the owner or operator of each major stationary source to pay to the 
permitting authority, as a condition of any permit required under this 
act, a fee sufficient to cover (i) the reasonable costs of reviewing 
and acting upon any application for such a permit, and (ii) if the 
owner or operator receives a permit for such source, the reasonable 
costs of implementing and enforcing the terms and conditions of any 
such permit (not including any court costs or other costs associated 
with any enforcement action), until such fee requirement is superseded 
with respect to such sources by the Administrator's approval of a fee 
program under title V.
    a. Montana's response to this requirement: Montana has an approved 
Title V permitting program. Montana requires an applicant proposing to 
construct or modify an air pollution source to pay an application fee. 
See ARM 17.8.504. Pursuant to ARM 7.8.505, Montana assesses an annual 
air quality operation fee against the owner or operator of any source 
issued a Montana air quality permit or an operating permit or which is 
registered with the Department as an oil and gas facility under ARM 
17.8.1701, et seq.

----------------------------------------------------------------------------------------------------------------
            State rules(s)                         Federal action                      Action reference
----------------------------------------------------------------------------------------------------------------
ARM 17.8.504..........................  Not Submitted......................  State only rule.
ARM 17.8.505..........................  Not submitted......................  State only rule.
ARM 17.8.1701, et seq.................  Pending............................  MT submitted 11/1/06.
----------------------------------------------------------------------------------------------------------------

    b. EPA Analysis: Montana's approved title V operating permit 
program meets the requirements of CAA section 110(a)(2)(L) for the 1997 
ozone NAAQS. As discussed in the Direct Final Rule approving the 
State's title V program (65 FR 37049, June 13, 2000), the State 
demonstrated that the fees collected were sufficient to administer the 
program.
    14. Consultation/participation by affected local entities: Section 
110(a)(2)(M) requires states to provide for consultation and 
participation in SIP development by local political subdivisions 
affected by the SIP.
    a. Montana's response to this requirement: As a matter of practice, 
the Department consults with the local agencies when necessary to 
implement a control plan for a nonattainment area. The Department also 
meets with county air pollution control program staff and discusses 
monitoring issues, including ozone, prior to making decisions regarding 
monitoring needs, monitor type, locations, and monitoring schedules.
    Section 75-2-112(2)(j) of the Montana CAA requires the Department 
to `` * * * advise, consult, contract, and cooperate with other 
agencies of the state, local governments, industries, other states, 
interstate and interlocal agencies, the United States, and any 
interested persons or groups; * * * ''
    Parties affected by Department actions, including local political 
subdivisions, may petition the BER for a hearing and address of their 
grievances, see ARM 17.8.140, 17.8.141, and 17.8.142.

----------------------------------------------------------------------------------------------------------------
             State rule(s)                         Federal action                      Action reference
----------------------------------------------------------------------------------------------------------------
ARM 17.8.140..........................  Approved...........................  66 FR 42427.
ARM 17.8.141..........................  Approved...........................  66 FR 42427.
ARM 17.8.142..........................  Approved...........................  66 FR 42427.
----------------------------------------------------------------------------------------------------------------

    b. EPA Analysis: Montana's submittal meets the requirements of CAA 
section 110(a)(2)(M) for the 1997 ozone NAAQS.

V. What action is EPA taking?

    In this action, EPA is proposing to approve the following 
infrastructure elements for the 1997 ozone NAAQS: (A), (B), (C) with 
regards to the requirement to have a SIP-approved minor NSR program, 
(D)(ii), (E), (F), (G), (H), (J) with regards to the requirements of 
sections 121 and 127 of the Act, (K), (L), and (M).
    In this action, EPA is proposing to disapprove the following 
infrastructure elements for the 1997 ozone NAAQS: (C) with regards to 
the requirement for the SIP to include a permit program as required in 
part C of title I of the Act, and (J) with regards to the requirement 
for the SIP to meet the applicable requirements of part C relating to 
PSD.
    In this action, EPA is taking no action on infrastructure elements 
(D)(i) and (I) for the 1997 ozone NAAQS.

VI. Statutory and Executive Order Reviews

    Under the CAA, 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 CAA. Accordingly, this 
proposed action merely approves some state law as meeting Federal 
requirements and disapproves other state law because it does not meet 
Federal requirements; this proposed action does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed 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 28942]]

     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 CAA; 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.

    Dated: May 12, 2011.
James B. Martin,
Acting Regional Administrator, Region 8.
[FR Doc. 2011-12357 Filed 5-18-11; 8:45 am]
BILLING CODE 6560-50-P