[Federal Register Volume 82, Number 65 (Thursday, April 6, 2017)]
[Proposed Rules]
[Pages 16770-16772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-06894]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2016-0477; FRL-9960-70-Region 8]


Montana Administrative Rule Revisions: 17.8.334

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to fully approve a revision to Montana's 
State Implementation Plan (SIP). On July 6, 2016, the Governor of 
Montana submitted to the EPA a revision to the Montana SIP that removed 
one section of the Administrative Rules of Montana (ARM) pertaining to 
aluminum plants. In this action, the EPA is proposing to approve the 
removal of this section from the SIP because the provision is 
inconsistent with Clean Air Act (CAA) requirements, as explained in the 
EPA's June 12, 2015 startup, shutdown, and malfunction (SSM) SIP call 
for Montana. Removal of this provision will correct certain 
deficiencies related to the treatment of excess emissions from aluminum 
plants.

DATES: Written comments must be received on or before May 8, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2016-0477 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Adam Clark, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. (303) 312-7104, 
[email protected].

SUPPLEMENTARY INFORMATION:

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 the 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 the 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 volume, 
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.

[[Page 16771]]

II. Background

    On June 30, 2011, the Sierra Club (the Petitioner) filed a petition 
for rulemaking with the EPA Administrator, asking the EPA to take 
action on specific provisions in the SIPs of 39 states. The petition 
included interrelated requests concerning state rule treatment of 
excess emissions by sources during periods of SSM. Exemptions from 
emission limitations during periods of SSM exist in a number of state 
rules, some of which were adopted and approved into SIPs by the EPA 
many years ago. The petition alleged that SSM exemptions undermine the 
emission limitations in SIPs and threaten states' abilities to achieve 
and maintain compliance with national ambient air quality standards, 
thereby threatening public health and public welfare. The Petitioner 
requested that the EPA either (i) notify the states of the substantial 
inadequacies in their SIPs and finalize a rule requiring them to revise 
their plans pursuant to CAA section 110(k)(5) (referred to as a ``SIP 
call''), or (ii) determine that the EPA's action approving the 
implementation plan provisions was in error and revise those approvals 
so that the SIPs are brought into compliance with the requirements of 
the CAA pursuant to CAA section 110(k)(6). On February 22, 2013 (78 FR 
12459), the EPA proposed an action that would either grant or deny the 
Sierra Club petition with respect to each of the SIP provisions alleged 
to be inconsistent with the CAA. That proposal summarizes the EPA's 
review of all of the provisions that were identified in the petition, 
providing a detailed analysis of each provision and explaining how each 
one either does or does not comply with the CAA with regard to excess 
emission events. For each SIP provision that appeared to be 
inconsistent with the CAA, the EPA proposed to find that the existing 
SIP provision was substantially inadequate to meet CAA requirements and 
thus proposed to issue a SIP call under CAA section 110(k)(5) of the 
CAA.
    On May 22, 2015, the EPA Administrator signed the final SSM SIP 
action. That action responds to the Sierra Club petition by granting it 
with respect to the provisions determined to be deficient and denying 
it with respect to the others. The final action responds to all public 
comments received on the proposed action and calls for 36 states to 
submit corrective SIP revisions by November 22, 2016, to bring 
specified provisions into compliance with the CAA. In addition, the 
final action reiterates the EPA's interpretation of the CAA regarding 
excess emissions during SSM periods and clarifies the EPA's 
longstanding SSM Policy as it applies to SIPs.
    With regard to the Montana SIP, the Petitioner objected to ARM 
17.8.334.\1\ Specifically, the Petitioner argued that ARM 17.8.334 is 
inconsistent with the CAA and the EPA's interpretation of the CAA in 
the SSM Policy because it contained an automatic exemption for 
emissions during startup and shutdown events. ARM 17.8.334 stated, 
``Operations during startup and shutdown shall not constitute 
representative conditions for the purposes of determining compliance 
with this rule,'' and further specified that, ``nor shall emissions in 
excess of the levels required in [two other ARM sections] during 
periods of startup and shutdown be considered a violation of [those 
sections].''
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    \1\ 80 FR 33846 (June 12, 2015).
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    In accordance with the requirements of CAA section 110(a)(2)(A), 
SIPs must contain enforceable emission limitations that, in accordance 
with the definition of ``emission limitation'' in CAA section 302(k), 
limit emissions of air pollutants on a continuous basis. CAA section 
304 generally provides that any person may bring a civil action against 
any person who is alleged to have violated or to be in violation of an 
``emission standard or limitation'' under the CAA, including SIP 
emission limitations. The EPA can similarly enforce against violations 
of SIP emission limitations under CAA section 113. Thus, SIP emission 
limitations can be enforced in a section 304 action or under section 
113 and so must be enforceable. SIP provisions that create exemptions 
such that excess emissions during SSM and other conditions are not 
violations of the applicable emission limitations are inconsistent with 
these fundamental requirements of the CAA with respect to emission 
limitations in SIPs.\2\ Because ARM 17.8.334 exempts emissions 
occurring during periods of startup and shutdown from otherwise 
applicable SIP emission limitations, the EPA determined in its final 
SSM SIP action that this provision is inconsistent with CAA 
requirements.
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    \2\ For details regarding these legal requirements for SIP 
emission limitations, including EPA's interpretation of the cited 
CAA provisions and guidance for satisfying them, please see EPA's 
``State Implementation Plans: Response to Petition for Rulemaking; 
Findings of Substantial Inadequacy; and SIP Calls To Amend 
Provisions Applying To Excess Emissions During Periods of Startup, 
Shutdown, and Malfunction,'' (SSM SIP Action), 78 FR 12459 (Feb. 22, 
2014) (proposal); 80 FR 33839 (June 12, 2015) (final).
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    Under CAA section 110(k)(5), Montana is required to revise the SIP 
as necessary to correct the inadequacies identified by the SSM SIP 
action within a period specified by the Administrator (not to exceed 
eighteen months); the SSM SIP action set a deadline of November 22, 
2016 for the corrective SIP revision. On July 6, 2016, the Governor of 
Montana submitted to the EPA for approval a SIP revision that would 
remove ARM 17.8.334 from the SIP.\3\
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    \3\ The State rulemaking that repealed ARM 17.8.334 also 
repealed two other sections of Montana's rules, including ARM 
17.8.335, which allowed aluminum plants to exceed applicable 
limitations during maintenance periods. ARM 17.8.335 was never 
approved into Montana's SIP and correspondingly was not identified 
in the final SSM SIP Action as substantially inadequate. As 
indicated by the cover letter from the Governor of Montana for the 
July 6, 2016 submission, the only portion of the rulemaking 
submitted for approval is the removal of ARM 17.8.334 from the SIP. 
Today's proposed action, if finalized, will complete the EPA's 
action on the entirety of the July 6, 2016 submission.
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III. Montana Revision and EPA Analysis

    Under CAA section 110(k), the EPA has the authority and 
responsibility to review SIP submissions to assure that they meet all 
applicable requirements. CAA section 110(l) prohibits the EPA from 
approving a SIP revision that would interfere with any applicable 
requirement of the CAA.
    In this instance, the State has elected to bring its existing SIP 
into compliance with CAA requirements by removing a previously approved 
provision that created unlawful exemptions from otherwise applicable 
emission limitations in the SIP during periods of startup and shutdown. 
As noted, the State proposed removing this provision, ARM 17.8.334, 
from the Montana SIP in its July 6, 2016 submission.
    We consider the removal of this provision sufficient to correct the 
inadequacies that the EPA's SSM SIP action identified in the Montana 
SIP.\4\ As a result of the removal from the SIP, the impermissible 
exemptions from emissions limitations contained within this provision 
will no longer be available to sources. As explained in the SSM SIP 
action, removal of an automatic exemption is an appropriate way to 
address the inadequacy. 80 FR at 33848. The EPA's proposed approval of 
this revision is consistent with CAA section 110(l) because approval 
will not interfere with any applicable requirement of the CAA. 
Specifically, by removing the unlawful exemptions created by ARM 
17.8.334, the SIP is now more protective. Furthermore, this revision 
will render the revised

[[Page 16772]]

emission limitations consistent with the CAA requirement that emission 
limitations in SIPs must be continuously applicable and enforceable. 
Therefore, we are proposing to approve the removal of this provision 
from the SIP. Because removal of this provision would fully address the 
inadequacies that the SSM SIP action identified in the Montana SIP, 
this proposed action, if finalized, will satisfy Montana's obligations 
pursuant to the EPA's SSM SIP action.
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    \4\ For a more in-depth discussion on the inadequacies of ARM 
17.8.334, see our proposed SSM SIP Action, 78 FR 12459, 12530-12531, 
February 22, 2013.
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IV. The EPA's Proposed Action

    We are proposing to fully approve Montana's July 6, 2016 SIP 
submission, which removes ARM 17.8.334 from the Montana SIP. If 
finalized, our approval of this submission will fully correct the 
inadequacies in Montana's SIP that were identified in the EPA's SSM SIP 
action.

V. Statutory and Executive Orders Review

    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, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves state law as meeting 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 Orders 
12866 (58 FR 51735, Oct. 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 the 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).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where the EPA or an Indian tribe has demonstrated 
that a tribe has jurisdiction. In those areas of Indian country, the 
rule does not have tribal implications and will not impose substantial 
direct costs on tribal governments or preempt tribal law as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000).

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: January 30, 2017.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. 2017-06894 Filed 4-5-17; 8:45 am]
 BILLING CODE 6560-50-P