[Federal Register Volume 78, Number 146 (Tuesday, July 30, 2013)]
[Rules and Regulations]
[Pages 45869-45871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18156]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2012-0347; FRL-9839-1]


Approval and Promulgation of State Implementation Plans; State of 
Montana; Interstate Transport of Pollution for the 2006 PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to partially approve and partially 
disapprove portions of a State Implementation Plan (SIP) submission 
from the State of Montana that are intended to demonstrate that its SIP 
meets certain interstate transport requirements of the Clean Air Act 
(``Act'' or ``CAA'') for the 2006 fine particulate matter 
(``PM2.5'') National Ambient Air Quality Standards 
(``NAAQS''). Specifically, EPA is partially approving and partially 
disapproving the portion of the Montana SIP submission that addresses 
the CAA requirement prohibiting emissions from Montana sources from 
significantly contributing to nonattainment of the 2006 
PM2.5 NAAQS in any other state or interfering with 
maintenance of the 2006 PM2.5 NAAQS by any other state. EPA 
is also partially approving and partially disapproving the portion of 
Montana's submission that addresses the CAA requirement that SIPs 
contain provisions to insure compliance with specific other CAA 
requirements relating to interstate and international pollution 
abatement. These partial disapprovals will not trigger an obligation 
for EPA to promulgate a Federal Implementation Plan (FIP) to address 
these interstate transport requirements as EPA is determining that the 
existing SIP is adequate to meet the specific CAA requirements.

DATES: Effective Date: This final rule is effective August 29, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2012-0347. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through 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: Adam Clark, Air Program, U.S. 
Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 
Wynkoop, Denver, Colorado 80202-1129, (303) 312-7104, 
[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 NAAQS mean or refer to National Ambient Air 
Quality Standards.
    (iv) The initials SIP mean or refer to State Implementation 
Plan.
    (v) The initials MDEQ mean or refer to the Montana Department of 
Environmental Quality.
    (vi) The words Montana and State mean the State of Montana.

Table of Contents

I. Background
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    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\. (71 FR 61144). By statute, 
SIPs meeting the ``infrastructure'' requirements of CAA sections 
110(a)(1) and (2) are to be submitted by states within three years 
after promulgation of a new or revised standard. Among the

[[Page 45870]]

infrastructure requirements of section 110(a)(2) are the ``interstate 
transport'' requirements of section 110(a)(2)(D).
    CAA section 110(a)(2)(D)(i) identifies four distinct elements 
related to the evaluation of impacts of interstate transport of air 
pollutants. In this action for the state of Montana, EPA is addressing 
the first two elements of section 110(a)(2)(D)(i) with respect to the 
2006 PM2.5 NAAQS.\1\ The first element of section 
110(a)(2)(D)(i) requires that each SIP for a new or revised NAAQS 
contain adequate provisions to prohibit any source or other type of 
emissions activity within the state from emitting air pollutants that 
will ``contribute significantly to nonattainment'' of the NAAQS in 
another state. The second element of CAA section 110(a)(2)(D)(i) 
requires that each SIP for a new or revised NAAQS contain adequate 
provisions to prohibit any source or other type of emissions activity 
in the state from emitting pollutants that will ``interfere with 
maintenance'' of the applicable NAAQS in any other state.
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    \1\ This action does not address the two elements of the 
transport SIP provision (in CAA section 110(a)(2)(D)(i)(II)) 
regarding interference with measures required to prevent significant 
deterioration of air quality or to protect visibility in another 
state. We will act on these elements in a separate rulemaking.
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    EPA is also addressing the requirements of section 110(a)(2)(D)(ii) 
with respect to the 2006 PM2.5 NAAQS. Section 
110(a)(2)(D)(ii) requires each SIP to contain adequate provisions to 
insure compliance with the applicable requirements of sections 126 and 
115 of the Act. Section 126 pertains to notification to nearby states 
and petitions from states to EPA regarding interstate transport of 
pollution. Section 115 pertains to international transport of 
pollution.
    On February 10, 2010, the Montana Department of Environmental 
Quality (MDEQ) provided a submission to EPA certifying that Montana's 
SIP is adequate to implement the 2006 PM2.5 NAAQS for all 
the infrastructure requirements of CAA section 110(a)(2). This 
submission included a brief analysis to support the conclusion that 
Montana's SIP meets the interstate transport requirements of CAA 
section 110(a)(2)(D)(i)(I) for this NAAQS.\2\
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    \2\ MDEQ's certification letter, dated February 10, 2010, is 
included in the docket for this action.
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    On May 13, 2013 (78 FR 27883), EPA proposed to partially approve 
and partially disapprove MDEQ's February 2010 submission with regard to 
the infrastructure requirements of CAA section 110(a)(2)(D)(i)(I) and 
110(a)(2)(D)(ii). As explained in that action, we proposed to partially 
disapprove these elements of Montana's submission because the 
submission did not include any technical analysis to support its 
conclusion regarding section 110(a)(2)(D)(i)(I), and did not to address 
section 110(a)(2)(D)(ii). (78 FR 27885) However, we also proposed to 
partially approve elements 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(ii) of 
Montana's submission based on our supplemental analysis, through which 
we concluded that the existing SIP for the State of Montana is adequate 
to satisfy the requirements of CAA section 110(a)(2)(D)(i)(I) and 
110(a)(2)(D)(ii). The details of our supplemental analysis are provided 
in our notice of proposed rulemaking.

II. Response to Comments

    EPA received one anonymous public comment on the proposed action. 
The commenter expressed concern about the potential for particulate 
matter pollution from what the commenter called the ``slash and burn 
policies'' of the U.S. Forest Service (USFS). The commenter alleged 
that the USFS had created an air pollution violation, but did not 
identify any particular provision of the Act or the Montana SIP that 
the USFS had violated.
    As discussed in our proposal notice, the scope of our action was to 
evaluate Montana's submission that the Montana SIP is adequate to 
prevent sources in Montana from significantly contributing to 
nonattainment or interfering with maintenance of the 2006 
PM2.5 NAAQS in any other state. To the extent that the 
commenter is concerned that the SIP is inadequate with respect to 
interstate transport impacts of PM2.5 created by intentional 
burns by the USFS, EPA disagrees with that concern. Our technical 
analysis confirmed that emissions from Montana in total, including 
emissions from prescribed burns, do not significantly contribute to 
nonattainment or interfere with maintenance of the 2006 
PM2.5 NAAQS in any other state. The commenter did not 
identify any issues with this analysis.
    The commenter also expressed concern that the Regulations.gov site 
was inaccessible on a particular day. In our notice, we provided 
alternative means of commenting: email, fax, postal mail, and hand 
delivery. We also provided an address, phone number, and email contact 
for further information. However, the commenter did not attempt to use 
any of these alternative means to comment or to inform us of the 
problem. While we acknowledge the commenter's concerns, we find that 
the public had adequate opportunity to comment on our action.

III. Final Action

    EPA is partially approving and partially disapproving the 
110(a)(2)(D)(i)(I) and 110(a)(2)(D)(ii) portions of Montana's February 
10, 2010 submission. We are partially disapproving the 
110(a)(2)(D)(i)(I) portion of the submission because it relies on 
irrelevant factors and lacks any technical analysis to support the 
State's conclusion with respect to interstate transport. However, we 
are also partially approving this portion of the submission based on 
EPA's supplemental evaluation of relevant technical information, which 
supports a finding that emissions from Montana do not significantly 
contribute to nonattainment or interfere with maintenance of the 2006 
24-hour PM2.5 NAAQS in any other state and that the existing 
Montana SIP is, therefore, adequate to meet the requirements of CAA 
section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS. 
We conclude that any FIP obligation resulting from this partial 
disapproval is satisfied by our determination that there is no 
deficiency in the SIP to correct. This disapproval also does not 
require any further action on Montana's part given EPA's conclusion 
that the SIP is adequate to meet the requirements of CAA section 
110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS.
    Similarly, EPA is partially disapproving the 110(a)(2)(D)(ii) 
portion of Montana's submission because it fails to address or discuss 
this CAA requirement. However, we are partially approving this portion 
of the submission based on the conclusion that the State's existing SIP 
is adequate to meet the requirements of CAA section 110(a)(2)(D)(ii) 
for the 2006 24-hour PM2.5 NAAQS. For similar reasons to 
those noted above for the 110(a)(2)(D)(i)(I) requirement, the partial 
disapproval of the submission for the 110(a)(2)(D)(ii) requirement does 
not require any further action from Montana or create any additional 
FIP obligation for EPA.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law that meets Federal 
requirements and disapproves state law

[[Page 45871]]

that does not meet Federal requirements; this action does not impose 
additional requirements beyond those imposed by state law. For that 
reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 30, 2013. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

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

    Dated: July 12, 2013.
Shaun L. McGrath,
Regional Administrator, Region 8.

    40 CFR part 52 is amended to read as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart BB--Montana

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2. Section 52.1393 is amended by revising section heading, designating 
existing paragraph as (a) and adding paragraph (b) to read as follows:


Sec.  52.1393  Interstate transport requirements.

* * * * *
    (b) On February 10, 2010, Montana Governor Brian Schweitzer 
submitted a letter certifying, in part, that Montana's SIP is adequate 
to meet the interstate transport requirements of CAA section 
110(a)(2)(D)(i)(I) for the 2006 PM2.5 NAAQS.

[FR Doc. 2013-18156 Filed 7-29-13; 8:45 am]
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