[Federal Register Volume 78, Number 92 (Monday, May 13, 2013)]
[Proposed Rules]
[Pages 27891-27898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-11293]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2011-0724; FRL-9812-9]


Promulgation of State Implementation Plan Revisions; 
Infrastructure Requirements for the 1997 and 2006 PM2.5 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 infrastructure 
requirements for the 1997 and 2006 National Ambient Air Quality 
Standards (NAAQS) for particulate matter less than or equal to 2.5 
micrometers ([mu]m) in diameter (PM2.5). The Clean Air Act 
(CAA) requires that each state, after a new or revised NAAQS is 
promulgated, review their SIP to ensure that they meet infrastructure 
requirements. The State of Montana submitted a certification of their 
infrastructure SIP for the 1997 and 2006 PM2.5 NAAQS, dated 
February 10, 2010. EPA does not propose to act in this notice on the 
State's submissions to meet requirements relating to interstate 
transport of air pollution for the 1997 and 2006 PM2.5 
NAAQS. EPA will act on those submissions in a separate action.

DATES: Written comments must be received on or before June 12, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2011-0724, by one of the following methods:
     http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     Email: [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, 8:00 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-
2011-0724. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
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 www.regulations.gov or email. The 
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 email comment 
directly to EPA, without going through www.regulations.gov your email 
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

[[Page 27892]]

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 
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 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, 8:00 a.m. to 4:00 p.m., excluding 
federal holidays.

FOR FURTHER INFORMATION CONTACT: Kathy Ayala, 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 initials AIRS mean or refer to national air quality 
database.
    (iii) The initials ARM mean or refer to Administrative Rules of 
Montana.
    (iv) The initials BACT mean or refer to best available control 
technology.
    (v) The initials BER mean of refer to Board of Environmental 
Review.
    (vi) The initials CBI mean or refer to confidential business 
information.
    (vii) The words or initials Department or DEQ mean or refer to 
the Department of Environmental Quality.
    (viii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (ix) The initials EEAP mean or refer to Emergency Episode 
Avoidance Plan.
    (x) The initials FIP mean or refer to a Federal Implementation 
Plan.
    (xi) The initials GHG mean or refer to greenhouse gases.
    (xii) The initials QAPPs mean or refer to Quality Assurance 
Project Plans.
    (xiii) The initials QA/QC mean or refer to quality assurance/
quality control.
    (xiv) The initials LAER mean or refer to lowest achievable 
emission rate.
    (xv) The initials MCA mean or refer to Montana Code Annotated.
    (xvi) The initials MT CAA mean or refer to the Clean Air Act of 
Montana.
    (xvii) The initials NAAQS mean or refer to national ambient air 
quality standards.
    (xviii) The initials NOX mean or refer to nitrogen oxides.
    (xix) The initials NPRM mean or refer to notice of proposed 
rulemaking.
    (xx) The initials NSR mean or refer to new source review.
    (xxi) The initials PM mean or refer to particulate matter.
    (xxii) The initials PM2.5 mean or refer to particulate matter 
with an aerodynamic diameter of less than 2.5 micrometers (fine 
particulate matter).
    (xxiii) The initials ppm mean or refer to parts per million.
    (xxiv) The initials PSD mean or refer to Prevention of 
Significant Deterioration.
    (xxv) The initials SIP mean or refer to State Implementation 
Plan.
    (xxvi) The initials SOP mean or refer to Standard Operating 
Procedures.
    (xxvii) The initials SSM mean or refer to start-up, shutdown, or 
malfunction.

Table of Contents

I. General Information
II. Background
III. What is the scope of this rulemaking?
IV. What infrastructure elements are required under sections 
110(a)(1) and (2)?
V. How did Montana address the infrastructure elements of Sections 
110(a)(1) and (2)?
VI. What action is EPA taking?
VII. 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 email. 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 PM2.5. 
Two new PM2.5 standards were added, set at 15 [mu]g/m\3\, 
based on the 3-year average of annual arithmetic mean PM2.5 
concentration from single or multiple community-oriented monitors, and 
65 [mu]g/m\3\, based on the 3-year average of the 98th percentile of 
24-hour PM2.5 concentrations at each population-oriented 
monitor within an area. In addition, the 24-hour PM10 
standard was revised to be based on the 99th percentile of 24-hour 
PM10 concentration at each monitor within an area (62 FR 
38652).
    On October 17, 2006 EPA promulgated a new NAAQS for 
PM2.5, revising the level of the 24-hour PM2.5 
standard to 35 [mu]g/m\3\ and retaining the level of the annual 
PM2.5 standard at 15 [mu]g/m\3\. EPA also retained the 24-
hour PM10 and revoked the annual PM10 standard 
(71 FR 61144). 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 27893]]

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.

III. What is the scope of this rulemaking?

    This rulemaking will not cover four substantive issues that are not 
integral to acting on a state's infrastructure SIP submission: (i) 
Existing provisions related to excess emissions during periods of 
start-up, shutdown, or malfunction at sources, that may be contrary to 
the CAA and EPA's policies addressing such excess emissions (``SSM''); 
(ii) existing provisions related to ``director's variance'' or 
``director's discretion'' that purport to permit revisions to SIP 
approved emissions limits with limited public process or without 
requiring further approval by EPA, that may be contrary to the CAA 
(``director's discretion''); (iii) existing provisions for minor source 
NSR programs that may be inconsistent with the requirements of the CAA 
and EPA's regulations that pertain to such programs (``minor source 
NSR''); and, (iv) existing provisions for PSD programs that may be 
inconsistent with current requirements of EPA's ``Final NSR Improvement 
Rule,'' 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 
(June 13, 2007) (``NSR Reform''). Instead, EPA has indicated that it 
has other authority to address any such existing SIP defects in other 
rulemakings, as appropriate. A detailed rationale for why these four 
substantive issues are not part of the scope of infrastructure SIP 
rulemakings can be found in EPA's July 13, 2011, final rule entitled, 
``Infrastructure SIP Requirements for the 1997 8-hour Ozone and 
PM2.5 National Ambient Air Quality Standards'' in the 
section entitled, ``What is the scope of this final rulemaking?'' (see 
76 FR 41075 at 41076-41079).

IV. 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)(E)(i): Adequate resources and authority.
     110(a)(2)(E)(ii): Compliance with CAA section 128 
regarding state boards.
     110(a)(2)(E)(iii): State responsibility for local 
government implementation.
     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 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.
    Element 110(a)(2)(D), Interstate transport of pollutants from 
Montana, which contribute significantly to nonattainment in, or 
interfere with maintenance by, any other state will be acted upon in a 
separate action.
    Two elements identified in section 110(a)(2) are not governed by 
the 3-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 3 
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).

V. How did 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: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
Lincoln County Health and Environment Regulations approved by the BER 
on March 23, 2006 and submitted for inclusion into the SIP on June 26, 
2006. The Libby control plan was effective in maintaining ambient 
PM2.5 concentrations at a level below both the annual and 
revised 2006 24-hour PM2.5 NAAQS. On October 8, 2006, EPA 
notified the State of Montana that the Libby area was in attainment 
with the 2006 PM2.5 NAAQS.
    In addition, to control plan implementation for the Libby area, 
Montana implemented a statewide program for permitting major and minor 
stationary sources of air pollution, including PM2.5. 
Montana's permitting program(s) require affected sources to demonstrate 
that source emissions will not cause or contribute to a violation of 
the NAAQS. Affected sources are further required to utilize BACT and/or 
LAER, as applicable, for emissions of regulated pollutants.
    Montana also regulates major and minor open burning activities and 
subjects those conducting open burning to BACT requirements.
    Except for specific control measures adopted in 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 (60 FR 36715); Subchapter 3--Emission 
Standards (44 FR 14036); Subchapter 4--Stack Heights and Dispersion 
Techniques (60 FR 36715); Subchapter 6--Open Burning; Subchapter (60 FR 
36715); Subchapter 7--Permit, Construction and Operation of Air 
Contaminant Sources (60 FR 36715); Subchapter 8--Prevention of 
Significant Deterioration of Air Quality (60 FR 36715); Subchapter 9--
Permit Requirements for Major Stationary Sources or Major Modifications 
Locating within Nonattainment Areas (60 FR 36715); Subchapter 10--
Preconstruction Permit Requirements for Major Stationary Sources or 
Major Modifications Locating within Attainment or Unclassified Areas 
(60 FR 36715); and Subchapter 16--Emission Control Requirements for Oil 
and Gas Well Facilities Operating Prior to Issuance of a Montana Air 
Quality Permit.
    b. EPA analysis: Montana's SIP meets the requirements of CAA 
section 110(a)(2)(A) for the 1997 and 2006 PM2.5

[[Page 27894]]

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 and 
2006 PM2.5 NAAQS. In Montana's case, we have approved an 
attainment plan for Lincoln County, which was designated nonattainment 
for the annual PM2.5 standard. Outside of the Lincoln County 
PM2.5 attainment plan, Montana regulates emissions of 
PM2.5 in two ways: (1) Through its SIP approved open burning 
program; and (2) through its SIP approved major and minor source 
permitting programs. This suffices to meet the requirements of 
110(a)(2)(A) for the 1997 and 2006 PM2.5 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 that are contrary to the CAA and existing EPA guidance (52 
FR 45109, November 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 \1\ and the Agency is addressing such 
state regulations separately (78 FR 12460).
---------------------------------------------------------------------------

    \1\ 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.'' (September 
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: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
a statewide air quality monitoring network operated by the Department, 
including numerous monitoring activities dedicated specifically to 
PM2.5.
    On an annual basis, the Department 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 emissions of air 
pollutants, including PM2.5. The Department, with 
participation and input by local county air pollution control agencies 
and other interested parties, makes informed decisions regarding the 
type, location, and schedules for monitoring various air quality 
parameters, including PM2.5. The product of this decision-
making process, the Air Monitoring Network Plan, is made available for 
public inspection and the Department annually submits the final 
document to EPA.
    All of the Department's ambient air monitoring operations and 
resultant data is subject to strict QA/QC processes. The Department 
employs a variety of QAPPs, and SOPs to maintain the highest level of 
data quality. The Department's air monitoring and data handling QAPPs 
and SOPs are routinely submitted to EPA for review and approval. The 
air monitoring data resulting from these rigorous QA/QC processes is 
uploaded and stored in EPA's AIRS for further review and analysis.
    The provisions in State law for the collection and analysis of 
ambient air quality data is contained in the MT CAA, 75-2-101 et seq., 
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 and 2006 
PM2.5 NAAQS. The 2012 Montana Annual Monitoring Network Plan 
(AMNP), dated July 10, 2012, was approved by EPA Region 8 on April 8, 
2013.
    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: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
Montana's administrative rules which authorize enforcement activities 
sufficient to ensure enforceable emission control measures are 
implemented to protect the NAAQs.
    Congress directed states to develop and implement measures to 
prevent significant deterioration. Pursuant to ARM 17.8.130 (71 FR 
3770), sources subject to the provisions of Title 17, Chapter 8, 
subchapters 8 (60 FR 36715), 9 (60 FR 36715), and 10 (60 FR 36715), ARM 
(regulating construction of new or modified major stationary sources 
consistent with PSD and NSR requirements) shall be subject to 
enforcement. The Department is authorized to issue a notice of 
violation, complaint regarding the source violation, and an order to 
take corrective action.
    The provisions in state law for the enforcement of emission 
limitations and other control measures, means, or techniques are 
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 and 2006 PM2.5 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 
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 and 2006 PM2.5 NAAQS, the program 
must meet all requirements of part C of Title I of the Act, including 
proper regulation of 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 (70 FR 71612). The State's approved PSD 
program does not satisfy the requirements of the phase 2 implementation 
rule. Furthermore, the State has not submitted a revision to the 
program to address this deficiency.\2\ As

[[Page 27895]]

a result, the SIP does not satisfy, for the 1997 and 2006 
PM2.5 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 and 2006 PM2.5 NAAQS for this requirement.
---------------------------------------------------------------------------

    \2\ The State did submit a SIP revision to address the 
requirements of the phase 2 ozone implementation rule for the 
State's nonattainment NSR program. As discussed above, the 
nonattainment NSR program is outside the scope of this 
infrastructure SIP action. We understand that the state has 
promulgated a rule that may satisfy this requirement and we will 
propose action on that SIP revision when it is submitted.
---------------------------------------------------------------------------

    Turning to minor NSR, EPA is proposing to approve Montana's 
infrastructure SIP for the 1997 and 2006 PM2.5 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, specifically the PM2.5 NAAQS. (See ARM Chapter 
17.8, Subchapter 7.) The SIP approved minor NSR program addresses 
PM2.5, as any facility required to obtain a permit must 
demonstrate that it will not cause or contribute to a violation of any 
NAAQS. (See ARM 17.8.749(3).) 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. Adequate resources and local and regional government: 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) * * *
    (iii) necessary assurances that, where the state has relied upon 
a local or regional government, agency, or instrumentality for the 
implementation of any plan provision, the state has responsibility 
for ensuring adequate implementation of such plan provision.

    a. Montana's response to this requirement: According to the State's 
submissions for the 1997 and 2006 PM2.5 infrastructure 
requirements, 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.
    The Department receives grant monies from EPA intended to fund 
programs to protect the NAAQS. The Department allocates a portion of 
the EPA grant money to fund SIP activities for attainment and 
maintenance of the NAAQS. In addition, Montana imposes and collects 
fees from permitted sources. Montana allocates a portion of the permit 
fee revenue to activities associated with permitting and compliance for 
sources of regulated air pollutants, including PM2.5 
emissions. Montana also receives state general funds to conduct state 
air quality program activities. Montana allocates a portion of 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 which describe adequate implementation 
of local or regional implementation of any plan provision are provided 
in MCA 75-2-112, Power and Responsibilities of Department.
    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.
    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 and 2006 PM2.5 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 regard to the requirements of 
section 110(a)(2)(E)(i) and (iii) for the 1997 and 2006 
PM2.5 NAAQS.
    5. State boards: Section 110(a)(2)(E)(ii) requires that ``the State 
comply with the requirements respecting State boards under section 
128.''
    a. Montana's response to this requirement: The Montana BER adopts 
regulations and the Montana DEQ implements and enforces those 
regulations, including those of 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. None of 
these Montana statutes are subject to approval by the federal 
government.
    b. EPA Analysis: The Montana SIP does not contain provisions that 
meet the requirements of CAA section 128. Section 128 must be 
implemented through SIP-approved, federally enforceable provisions. In 
particular, subsection 128(a)(2) requires that all SIPs must contain 
provisions for the adequate disclosure of potential conflicts of 
interest. The Montana SIP does not currently contain any such 
provisions and is deficient with respect to the requirements of 
subsection 128(a)(2).
    Furthermore, section 2-15-3502 of the Montana Code creates a Board 
of Environmental Review (``Board''). The Board consists of seven 
members appointed by the Governor and meeting certain statutory 
criteria. Under 75-2-211(10), MCA, a person who is directly and 
adversely affected by the Montana DEQ's approval or denial of a permit 
to construct an air pollution source may (with certain exceptions) 
request a hearing before the Board. Similarly, under section 75-2-
218(5) of the Montana Code, a person who participated in the comment 
period on DEQ's issuance, renewal, amendment or modification of a title 
V operating permit may request a hearing before the Board. Finally, 
under 75-2-201(1), MCA, a person who receives an enforcement order from 
DEQ under Chapter 2 of Title 75, Air Quality, may request a hearing 
before the Board.
    Based on these State statutory provisions and our discussion above 
of the text of section 128(a)(1), we propose to conclude that the Board 
falls within the terms of subsection 128(a)(1). The Board is a multi-
member body that has authority to approve permits and enforcement 
orders under the Act. The

[[Page 27896]]

term ``permits under the Act'' includes PSD, nonattainment NSR, and 
minor NSR permits. These are all permits required to construct a new or 
modified stationary source, and, under 75-2-211(1), MCA, are 
potentially subject to a hearing before the Board. Permits under the 
Act also includes title V operating permits, which, under 75-2-218(5), 
MCA, are potentially subject to a hearing before the Board. Similarly, 
enforcement orders under the Act are, under Montana Code section 75-2-
201(1), potentially subject to a hearing before the Board. In short, 
the Board has authority to hear appeals of permits and enforcement 
orders under the Act.
    The Board's authority to hear appeals is ``authority to approve'' 
within the meaning of section 128, for two reasons. First, the Board's 
authority falls within the plain meaning of the word ``approve.'' To 
approve means, among other things, ``to give formal sanction to.'' This 
is precisely what, for example, an order from the Board upholding a 
permit does: It formally sanctions the permit. Second, the contrary 
interpretation, that ``authority to approve'' does not include the 
Board's authority to hear appeals, would be inconsistent with the 
structure and purpose of section 128. It would limit the applicability 
of subsection 128(a)(1) to multi-member boards that issue permits in 
the first instance. As the purpose of section 128 is to promote 
disinterested decision-making on permits and enforcement orders, it is 
paramount that section 128 should apply to the entity with authority to 
make the final decision, and not merely to the initial decision maker. 
In addition, due to the language ``with similar powers'' in subsection 
128(a)(2), the contrary interpretation would lead to the illogical 
result that a state director who issues permits and enforcement orders 
that are subject to administrative appeal would fall under the 
disclosure requirement, but a director that was the final decision 
maker on permits and enforcement orders would not.
    As the Board has authority to approve permits and enforcement 
orders under the Act, it is subject to subsection 128(a)(1). However, 
the Montana SIP does not currently contain any provisions to meet the 
requirements of subsection 128(a)(1) and is therefore deficient for 
this requirement.
    Based on these deficiencies in the Montana SIP, we propose to 
disapprove Montana's infrastructure SIP for this element. We do not 
consider it necessary to identify any particular instances in which the 
Board's actual composition in practice has failed to meet the 
compositional requirements of subsection 128(a)(1) or in which Board 
members in practice have failed to meet the disclosure requirements of 
subsection 128(a)(2). The deficiency is in the Montana SIP itself, 
which simply fails to contain any provisions meeting the explicit legal 
requirements of these subsections. As a result, we propose to 
disapprove this element of the State's infrastructure SIP.
    6. 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: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
three State Rules: ARM 17.8.105 (66 FR 42427); ARM 17.8.106 (66 FR 
42427); and ARM 17.8.505 (State only rule).
    Montana's administrative rules authorize the Department to require 
monitoring of emissions from stationary sources and annual submissions 
of all information necessary to complete a source emissions inventory. 
Affected permits require emissions monitoring from stationary sources 
of air pollution, including PM emissions. 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.
    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 regard to the 
requirements of section 110(a)(2)(F) for the 1997 and 2006 
PM2.5 NAAQS.
    7. 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: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
EPA approved Montana's Emergency Episode Avoidance Plan (EEAP) in 71 FR 
19, January 3, 2006. Montana's EEAP made provision for emergency 
control of all criteria pollutants. Under authority granted by the 75-
2-402, MCA, and the Montana EEAP, the Department may order sources of 
pollution to limit or cease emissions. The MT CAA is not subject to 
approval by EPA.
    b. EPA analysis: Section 75-2-402 of the MCA provides the 
Department 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 SIP therefore meets the requirements of 
110(a)(2)(G) for the 1997 and 2006 PM2.5 NAAQS.
    8. 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 (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 established under this [Act].

    a. Montana's response to this requirement: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
provisions in state law providing for adoption of rules and regulations 
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 MT 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.
    b. EPA analysis: Montana's statutory provisions in the Montana CAA 
at 75-2-101 et seq., give the BER sufficient

[[Page 27897]]

authority to meet the requirements of 110(a)(2)(H).
    9. 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 this subchapter (relating to [PSD] 
of air quality and visibility protection).''
    a. Montana's response to this requirement: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
the State Implementation Plan for Columbia Falls PM10 
Nonattainment Area which was approved by EPA on April 14, 1994 (59 FR 
17700). 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 51, appendix V and Montana's open 
meeting laws 2-2-203, MCA.
    On January 3, 2006, EPA approved Montana's EEAP at 71 FR 19. 
Montana's EEAP provides for all criteria pollutants, including PM. The 
EEAP contains provisions for disseminating information regarding an 
exceedance 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. 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 (60 FR 
36715), and nonattainment NSR rules in subchapter 9 (60 FR 36715) and 
10 (60 FR 36715) 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.
    The EPA promulgated a Federal Implementation Plan (FIP), which 
became final on September 18, 2012 (77 FR 57864), to address regional 
haze requirements for the State of Montana.
    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 general 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 
regard 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.
    We propose to find that the Montana SIP meets the requirements of 
section 110(a)(2)(J) for the 1997 and 2006 PM2.5 NAAQS with 
regard to sections 121 and 127 of the Act, and does not meet the 
requirements of section 110(a)(2)(J) for the 1997 and 2006 
PM2.5 NAAQS with regard to meeting the applicable 
requirements of part C relating to PSD.
    10. 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: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
Title 17, Chapter 8, subchapters 7 (60 FR 3615), 8 (60 FR 36715), 9 (60 
FR 36715), and 10 (60 FR 36715), ARM (regulating construction of new or 
modified major stationary sources consistent with PSD and NSR 
requirements). Sources subject to these provisions 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.
    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 and 2006 PM2.5 NAAQS. In 
particular, Montana's approved PSD program (see ARM 17.8.821(1)) 
requires estimates of ambient air concentrations to be based on the 
applicable air quality models, databases, 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 with respect to 
the SIP outside of the nonattainment context.
    11. Permitting fees: Section 110(a)(2)(L) directs 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: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
an approved Title V permitting program. Montana requires an applicant 
proposing to construct or modify an air pollution source to pay an 
application fee, ARM 17.8.504 (State rule only). Sources must also pay 
an annual operation fee, ARM 17.8.505 (State rule only).
    b. EPA Analysis: Montana's approved title V operating permit 
program meets the requirements of CAA section 110(a)(2)(L) for the 1997 
and 2006 PM2.5 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.

[[Page 27898]]

    12. 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: The State's submissions 
for the 1997 and 2006 PM2.5 infrastructure requirements cite 
Section 75-2-112(2)(j) of the MT CAA which 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; . . .''
    As a matter of practice, the Department consults with the local 
agencies when nec . . . essary to implement a control plan for a 
nonattainment area. The Department also meets with county/local air 
pollution control program staff and discusses monitoring issues, 
including monitoring for PM2.5, prior to making decisions 
regarding monitoring needs, monitor type, locations, and monitoring 
schedules.
    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 (66 FR 42427), 17.8.141 (66 FR 42427), and 
17.8.142 (66 FR 42427).
    b. EPA Analysis: Montana's submittal meets the requirements of CAA 
section 110(a)(2)(M) for the 1997 and 2006 PM2.5 NAAQS.

VI. What action is EPA taking?

    In this action, EPA is proposing to approve the following 
infrastructure elements for the 1997 and 2006 PM2.5 NAAQS: 
(A), (C) with respect to the requirement to have a minor NSR program 
that addresses PM2.5; (E)(i), (E)(iii), (F), (G), (H), (J) 
with respect to the requirements of sections 121 and 127, (K), (L), and 
(M). EPA is proposing to disapprove the following infrastructure 
elements for the 1997 and 2006 PM2.5 NAAQS: (E)(ii) 
concerning requirements for state boards under section 128; and 
elements (C) and (J) with respect to the requirement to have a PSD 
program that meets the requirements of part C of Title I of the Act. 
Finally, in this action, EPA is taking no action on infrastructure 
element (D) for the 1997 and 2006 PM2.5 NAAQS as that 
element will be acted on separately.

VII. 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.);
     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, Greenhouse gases, Lead, Nitrogen dioxide, 
Ozone, Particulate matter, Reporting and recordkeeping requirements, 
Sulfur oxides, Volatile organic compounds.

    Dated: May 2, 2013.
Howard M. Cantor,
Acting Regional Administrator, Region 8.
[FR Doc. 2013-11293 Filed 5-10-13; 8:45 am]
BILLING CODE 6560-50-P