[Federal Register Volume 78, Number 223 (Tuesday, November 19, 2013)]
[Rules and Regulations]
[Pages 69296-69299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-27555]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2012-0846; FRL-9817-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Montana; Revisions to the Administrative Rules of Montana--Air Quality, 
Subchapter 7, Subchapter 16 and Subchapter 17

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve new rules as submitted 
by the State of Montana on September 23, 2011. Montana adopted these 
rules on December 2, 2005 and March 23, 2006. These new rules meet the 
requirements of the Clean Air Act (CAA) and EPA's minor new source 
review (NSR) regulations. In this action, EPA is approving these rules 
as they are consistent with the CAA. This action is being taken under 
section 110 of the CAA.

DATES: This final rule is effective December 19, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2012-0846. All documents in the docket are listed in 
the www.regulations.gov Web site. 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 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: Kevin Leone, Air Program, Mailcode 8P-
AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, (303) 312-6227, or [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is EPA taking?
    A. Summary of Final Action
II. What is the background?
    A. Brief Discussion of Statutory and Regulatory Requirements
    B. Summary of the Submittal Addressed in This Final Action
III. Response to Comments
IV. What are the grounds for this approval action?
V. Final Action
VI. Statutory and Executive Order Reviews

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The words Minor NSR mean NSR established under section 110 of 
the Act and 40 CFR 51.160.
    (iv) The initials NSR mean new source review, a phrase intended to 
encompass the stationary source regulatory programs that regulate the 
construction and modification of stationary sources as provided under 
CAA section 110(a)(2)(C), CAA Title I, parts C and D, and 40 CFR 51.160 
through 51.166.
    (v) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words State or Montana mean the State of Montana, unless 
the context indicates otherwise.

I. What action is EPA taking?

A. Summary of Final Action

    EPA is taking final action to approve the Montana State 
Implementation Plan (SIP) and rules submitted to EPA on September 23, 
2011. This submission contained revisions to ARM 17.8.744, and new 
rules I-VI, codified as ARM 17.8.1601, 17.8.1602, 17.8.1603, 17.8.1604, 
17.8.1605, and 17.8.1606, pertaining to the regulation of oil and gas 
well facilities. The Montana Board of Environmental Review (Board) 
adopted these revisions to existing SIP revisions and new rules on 
December 2, 2005 and they became effective on January 1, 2006. This 
submission also contains new rules I-IX, codified as ARM 17.8.1701, 
17.8.1702, 17.8.1703, 17.8.1704, 17.8.1705, 17.8.1710, 17.8.1711, 
17.8.1712 and 17.8.1713 pertaining to the regulation of oil and gas 
well facilities. The Board adopted these revisions to existing SIP 
revisions and new rules on March 23, 2006 and they became effective on 
April 7, 2006. The new rules and revisions meet the requirements of the 
Act and EPA's minor NSR regulations.
    EPA proposed action for the above SIP revision submittals on 
November 13, 2012 (77 FR 67596). We accepted comments from the public 
on this proposal from November 14, 2012, until December 13, 2012. A 
summary of the comments received and our evaluation thereof is 
discussed in section III below. In the proposed rule, we described our 
basis for the actions identified above. The reader should refer to the 
proposed rule, and sections IV and V of this preamble, for additional 
information regarding this final action.
    EPA reviews a SIP revision submission for its compliance with the 
Act and EPA regulations. CAA 110(k)(3). We evaluated the submitted new 
and revised rules based upon the regulations and associated record that 
have been submitted and are currently before EPA. In order for EPA to 
ensure that Montana has a program that meets the requirements of the 
CAA, the State must demonstrate the program is as stringent as the Act 
and the implementing regulations discussed in this notice. For example, 
EPA must have sufficient information to make a finding that the new 
program will ensure protection of the NAAQS, and noninterference with 
the Montana SIP control strategies, as required by section 110(l) of 
the Act. The provisions in these submittals were not submitted to meet 
a mandatory requirement of the Act.

II. What is the background?

A. Brief Discussion of Statutory and Regulatory Requirements

    The CAA (section 110(a)(2)(C)) and 40 CFR 51.160 require states to 
have legally

[[Page 69297]]

enforceable procedures to prevent construction or modification of a 
source if it would violate any SIP control strategies or interfere with 
attainment or maintenance of the National Ambient Air Quality Standards 
(NAAQS). Such minor NSR programs are for pollutants from stationary 
sources that do not require Prevention of Significant Deterioration 
(PSD) or nonattainment NSR permits. States may customize the 
requirements of the minor NSR program as long as their program meets 
minimum requirements.
    Section 110(l) of the CAA states: ``[e]ach revision to an 
implementation plan submitted by a State under this Act shall be 
adopted by such State after reasonable notice and public hearing. The 
Administrator shall not approve a revision to a plan if the revision 
would interfere with any applicable requirement concerning attainment 
and reasonable further progress (as defined in section 171), or any 
other applicable requirement of this chapter.''
    The States' obligation to comply with each of the NAAQS is 
considered as ``any applicable requirement(s) concerning attainment.'' 
A demonstration is necessary to show that this SIP revision will not 
interfere with attainment or maintenance of the NAAQS, including those 
for ozone, particulate matter, carbon monoxide (CO), sulfur dioxide 
(SO2), lead, nitrogen oxides (NOX) or any other 
requirement of the Act. Montana's demonstration of noninterference (see 
docket), as submitted to EPA on September 23, 2011, provides sufficient 
basis that the inclusion of the new rules and revisions, as described 
in section I of this preamble, will not interfere with attainment, 
reasonable further progress (RFP), or any other applicable requirement 
of the CAA. Further details are provided in sections IV and V of this 
action.

B. Summary of the Submittal Addressed in This Final Action

    The final action to approve the new and revised rules as described 
in section I of this preamble, hereafter referred to as ``the 
program'', would establish a registration system for certain facilities 
that presently require a minor NSR air quality permit under the SIP 
regulations. The new and revised rules would establish a general 
registration system for oil and gas well facilities and would allow the 
owner or operator of an oil or gas well facility to register with the 
Montana Department of Environmental Quality (MDEQ) in lieu of 
submitting a permit application and obtaining a permit to construct or 
modify the source. Currently, with specific exemptions, the 
administrative rules adopted under the Clean Air Act of Montana and 
approved by the EPA into the SIP, require the owner or operator of 
sources of air pollution to obtain a permit prior to construction or 
modification.
    Montana originally submitted these rules on October 16, 2006, and 
November 1, 2006 to EPA for inclusion into the SIP. EPA proposed action 
on these submittals on January 6, 2011 (76 FR 758). EPA had several 
concerns with the Program, as was explained in 76 FR 758. Montana 
withdrew the October 16, 2006, and November 1, 2006, submittals in 
March of 2011 and resubmitted the Program on September 23, 2011. The 
September 23, 2011, submittal contained a 110(l) demonstration, as well 
as other supplemental data, which addressed EPA's concerns that were 
raised in 76 FR 758.

III. Response to Comments

    In response to our November 13, 2012 proposal, we received comments 
from the following: Montana Petroleum Association, Inc. (MPA); True Oil 
LLC; and the Montana Department of Environmental Quality (MDEQ).
A. MPA
    Comment: Commenter states MPA has reviewed the proposed approval 
found at 77 FR 67596 and agrees with EPA's proposal to approve the 
program as submitted on September 23, 2011. MPA encourages EPA to 
promptly incorporate the new and revised rules, as outlined in 77 FR 
67596, into the Montana SIP. MPA notes that the new and revised rules 
provide a workable alternative to the Montana air quality permitting 
program and that the program meets the requirements of CAA section 
110(l) of the Federal Clean Air Act and other applicable requirements. 
MPA outlined specific federal requirements and demonstrations from 77 
FR 67596 in which they agree with EPA's proposed conclusions. For those 
reasons, MPA concurs with EPA's proposed action.
    MPA further notes they had previously submitted comments to EPA in 
regard to the incorporation of Subchapters 16 and 17 into the Montana 
SIP. Those comments and analysis are contained in the Docket ID: EPA-
R08-OAR-2007-0662, which were in response to our January 6, 2011, 
proposed action. MPA notes that their analysis is similar to that 
submitted by MDEQ; MPA's analysis also reviewed ambient air quality 
data around the state and compared this data to data collected near oil 
and gas sites. MPA wishes to incorporate by reference their previous 
comments and analysis as contained in EPA-R08-OAR-2007-0662 into their 
comments for this rulemaking.
    Response: We acknowledge receipt of these comments and the support 
for our proposal for approval. We also acknowledge receipt of the 
comments submitted by MPA which are contained in EPA-R08-OAR-2007-0662 
and hereby incorporate those comments by reference into MPA's comments 
for this rulemaking.
B. True Oil, LLC
    Comment: Commenter states that they support EPA's proposed rule 
found in 77 FR 67596 to approve the inclusion of Montana's Subchapters 
16 and 17 into the Montana SIP. The commenter states they fully concur 
with EPA's review of those rules and that they meet all obligations 
under the Federal Clean Air Act for incorporation into a state SIP.
    Response: We acknowledge receipt of these comments and the support 
for our proposal for approval.
C. MDEQ
    Comment: Commenter states that they support EPA's proposed rule 
found in 77 FR 67596 to approve the inclusion of Montana's Subchapters 
16 and 17 into the Montana SIP. The commenter states that Montana's Oil 
and Gas Registration program represents advanced regulatory ideas for 
stewardship and sustainability and that the program is an innovative, 
efficient method for ensuring sources install and operate emission 
control equipment that protects and improves air quality. The commenter 
also states they appreciate the time EPA invested in reviewing and 
studying the issues around Montana's Oil and Gas Registration program.
    Response: We acknowledge receipt of these comments and the support 
for our proposal for approval. EPA recognizes that approval of an oil 
and gas registration program is a priority for the State; EPA also 
indicates its support for registration/permit-by-rule programs as they 
provide efficiencies and environmental benefits. EPA commends MDEQ for 
periodically revising their SIP in order to adapt to environmental, 
economic and social changes, and recognizing the need for a more 
collaborative, flexible, and performance based regulatory strategy to 
meet the regulatory challenge posed by Montana's oil and gas industry. 
EPA also commends Montana's work in developing an approvable program 
that is consistent with CAA and regulatory requirements.

[[Page 69298]]

IV. What are the grounds for this approval action?

    EPA evaluated the new rules and revisions, as described in section 
I of this preamble, using the following:
    (1) The statutory requirements under CAA section 110(a)(2)(c), 
which requires states to include a minor NSR program in their SIP to 
regulate modifications and new construction of stationary sources 
within the area as necessary to assure the NAAQS are achieved;
    (2) The regulatory requirements under 40 CFR 51.160, including 
section 51.160(a), which require that the SIP include legally 
enforceable procedures that enable a state or local agency to determine 
whether construction or modification of a facility, building, structure 
or installation, or combination of these will result in a violation of 
applicable portions of the control strategy; or interference with 
attainment or maintenance of a national standard in the state in which 
the proposed source (or modification) is located or in a neighboring 
state; section 51.160(b), which requires states to have legally 
enforceable procedures to prevent construction or modification of a 
source if it would violate any SIP control strategies or interfere with 
attainment or maintenance of the NAAQS; and
    (3) The statutory requirements under CAA section 110(l), which 
provides that EPA cannot approve a SIP revision if the revision would 
interfere with any applicable requirement concerning attainment and 
RFP, or any other applicable requirement of the CAA. Therefore, EPA 
will approve a SIP revision only after a state has demonstrated that 
such a revision will not interfere (``noninterference'') with 
attainment of the NAAQS, RFP or any other applicable requirement of the 
CAA. In this instance, EPA asked the State to submit an analysis 
showing that the new rules and revisions, as described in section I of 
this preamble, would not violate section 110(l) of the CAA (see 
docket); this is also referred to as a ``demonstration of 
noninterference'' with attainment and maintenance under CAA section 
110(l). The scope and rigor of the demonstration of noninterference 
conducted in support of this notice is appropriate given the air 
quality status of the State, and the potential impact of the revision 
on air quality and the pollutants affected.
    As EPA described in this preamble and in the proposed notice (77 FR 
67596), the new rules and revisions we are taking final action to 
approve meet the requirements of CAA section 110(a)(2)(c) and 40 CFR 
51.160. In addition, the State's September 23, 2011, demonstration of 
noninterference indicates that incorporating the new rules and 
revisions, as described in section I of this preamble, will not 
interfere with attainment of the NAAQS, RFP, or any other applicable 
requirement of the CAA.

V. Final Action

    EPA is taking final action to approve the new and revised rules as 
submitted by Montana on September 23, 2011, based upon three criteria. 
First, the State provided sufficient information to determine that the 
requested revision to add the new oil and gas registration program to 
the Montana Minor NSR SIP will not interfere with any applicable 
requirement concerning attainment and RFP as required by CAA section 
110(l), or any other requirement of the Act; Second, the new rules 
comply with CAA section 110(a)(2)(C), which requires states to include 
a minor NSR program in their SIP to regulate modifications and new 
construction of stationary sources within the area as necessary to 
assure the NAAQS are achieved; Third, the new rules comply with 40 CFR 
51.160.

VI. 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 final action merely approves state law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and 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 January 21, 2014. 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

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enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

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

    Dated: April 26, 2013.
Howard M. Cantor,
Acting Regional Administrator, Region 8.

    40 CFR part 52 is amended 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

0
2. Section 52.1370 is amended by adding paragraph (c)(73) to read as 
follows:


Sec.  52.1370  Identification of plan.

* * * * *
    (c) * * *
    (73) On September 23, 2011, the State of Montana submitted new 
rules to the Administrative Rules of Montana (ARM). The submittal 
included new rules to ARM Chapter 17. The incorporation by reference in 
paragraphs (i)(A) and (i)(B) reflect the new rules.
    (i) Incorporation by reference.
    (A) Administrative Rules of Montana: 17.8.1601, Definitions; 
17.8.1602, Applicability and Coordination with Montana Air Quality 
Permit Rules; 17.8.1603, Emission Control Requirements; 17.8.1604, 
Inspection and Repair Requirements; 17.8.1605, Recordkeeping 
Requirements; 17.8.1606, Delayed Effective Date; effective January 1, 
2006.
    (B) Administrative Rules of Montana: 17.8.1701, Definitions; 
17.8.1702, Applicability; 17.8.1703, Registration Process and 
Information; 17.8.1704, Registration Fee; 17.8.1705, Operating 
Requirements: Facility-wide; 17.8.1710, Oil or Gas Well Facilities 
General Requirements; 17.8.1711, Oil or Gas Well Facilities Emission 
Control Requirements; 17.8.1712, Oil or Gas Well Facilities Inspection 
and Repair Requirements; 17.8.1713, Oil or Gas Well Facilities 
Recordkeeping and Reporting Requirements; effective April 7, 2006.

[FR Doc. 2013-27555 Filed 11-18-13; 8:45 am]
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