[Federal Register Volume 84, Number 130 (Monday, July 8, 2019)]
[Proposed Rules]
[Pages 32361-32363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14243]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2019-0326; FRL-9995-94-Region 8]


Approval and Promulgation of Air Quality Implementation Plans; 
Montana; Revisions to Administrative Rules of Montana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve State Implementation Plan (SIP) revisions submitted by the 
State of Montana on February 23, 2017. The revisions are to the 
Administrative Rules of Montana (ARM) open burning and permitting 
regulations to align the ARM with the current Montana Code Annotated 
(MCA) procedures for appealing a permit and requesting a hearing. The 
EPA is taking this action pursuant to the Clean Air Act (CAA).

DATES: Written comments must be received on or before August 7, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2019-0326, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
www.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

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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.
    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 and Radiation 
Division, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129. The 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: Jaslyn Dobrahner, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD-QP, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, (303) 312-6252, [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On February 23, 2017, the State of Montana submitted a SIP revision 
containing amendments to open burning and permitting regulations in the 
ARM at 17.8.610, Major Open Burning Source Restrictions; 17.8.612, 
Conditional Air Quality Open Burning Permits; 17.8.613, Christmas Tree 
Waste Open Burning Permits; 17.8.614, Commercial Film Production Open 
Burning Permits; 17.8.615, Firefighter Training; and 17.8.749, 
Conditions for Issuance or Denial of Permit.\1\ The amendments: (1) Add 
references to sections 75-2-211, Permits for Construction, 
Installation, Alteration, or Use and 75-2-213, Energy Development 
Project--Hearing and Procedures of the MCA pertaining to the process 
for appealing air quality permits, including requesting a hearing; (2) 
remove duplicative language in the ARM; and (3) and make minor 
editorial changes. The Montana Board of Environmental Review adopted 
the amendments on June 3, 2016 (effective July 9, 2016).
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    \1\ The February 23, 2017, submittal also included revisions to 
17.8.1210, General Requirements for Air Quality Operating Permit 
Content. However, the state does not want us to act on 17.8.1210, 
because it is not part of the federal SIP. (Memorandum from State of 
Montana to the EPA (June 26, 2019)).
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II. Analysis of State Submittal

    We evaluated Montana's February 23, 2017, submittal regarding 
amendments to the State's ARM. The amendments to ARM 17.8.610(3), 
17.8.612(10) and (11), 17.8.613(8) and (9), 17.8.614(8) and (9), and 
17.8.615(6) and (7) incorporate by reference section 75-2-211 of the 
MCA pertaining to the permit appeals process, including requesting a 
hearing. These statutes provide as follows:
     That a person who is directly and adversely affected by 
the issuance or denial of a permit may request a hearing within 15 days 
after the state renders a decision;
     that a request for hearing does not stay the state's 
decision on an application unless the board orders a stay; and
     an affidavit supporting the request for hearing must be 
filed within 30 days after the issuance or denial of a permit.
    The revisions also remove corresponding duplicative language 
between the ARM and MCA and make editorial changes.
    The language in the revisions to 17.8.610, 17.8.612, 17.8.613, 
17.8.614, and 17.8.615 referencing 75-2-211, MCA, is equivalent to the 
language being removed from these sections of the ARM except for 
17.8.610. According to the State,\2\ 17.8.610 had not been updated 
during the last State revision in 2011, whereas 17.8.612, 17.8.613, 
17.8.614, and 17.8.615 had been amended by the State and subsequently 
approved into the SIP on August 20, 2015.\3\ The revisions to 17.8.610 
in the February 23, 2017, submittal are identical to the revisions we 
approved in our August 20, 2015 rulemaking to 17.8.612, 17.8.613, 
17.8.614, and 17.8.615 in that they require a hearing request affidavit 
to be filed within 30 days after the department renders a decision, 
remove an automatic stay of the department's decision to issue a permit 
upon a permit appeal, and add conditions and procedures for when the 
board may order a stay.
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    \2\ Email from State of Montana to the EPA (September 30, 2016).
    \3\ 80 FR 50582 (August 20, 2015).
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    We are proposing to approve the revisions in ARM 17.8.610(3), 
17.8.612(10) and (11), 17.8.613(8) and (9), 17.8.614(8) and (9), and 
17.8.615(6) and (7) because these revisions are either equivalent to 
the current federally-approved SIP (for 17.8.612, 17.8.613, 17.8.614, 
17.8.615) or have been previously approved into the SIP in similar 
sections (for 17.8.610). In both instances, we previously determined 
that the revisions do not conflict with the CAA.\4\
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    \4\ 80 FR 30987 (June 1, 2015).
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    The amendments to ARM 17.8.749(7) incorporate by reference section 
75-2-213 of the MCA pertaining to the hearing and appeals procedures 
for permit applicants of energy development projects. The permit 
appeals procedures in 75-2-213 pertain to air quality permit decisions 
on energy development projects that differ from the general procedures 
described in 75-2-211, MCA. Specifically, the statutes proposed for 
approval within 75-2-213, MCA allow a permit applicant the following 
hearing procedures:
     The applicant may request a hearing within 30 days after 
the department renders a decision;
     a request for hearing must be limited to those issues 
presented to the state during the public comment period unless the 
issue is related to a material change in federal or state law made 
during the public comment period, to a judicial decision issued after 
the comment period, or to a material change to the draft permit 
finalized after an opportunity for comment;
     an affidavit supporting the request must be filed with the 
request for a hearing; and
     the applicant may, by filing a written election to the 
board within 15 days of receipt of request for hearing, elect a hearing 
before the board or have the matter submitted directly to the district 
court for judicial review.
    The revisions also make a minor editorial change.
    An important consideration before the EPA approves programs under 
the CAA is that the state must provide the same opportunity for 
judicial review of the air permitting actions in state court as would 
be available in federal court. The proposed revisions to 17.8.749, to 
incorporate the applicable statutes in 75-2-213, MCA, are in accordance 
with CAA sections 307(b) and 307(d)(7)(B) which provide for the 
judicial review of an air quality action and limits objections to an 
action to those that were raised with reasonable specificity during the 
public comment period, respectively. Additionally, if the Administrator 
refuses to convene a proceeding, a person may seek review in

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the United States court of appeals.\5\ Similarly, 75-2-213, MCA 
provides permit applicants with the election to have the matter proceed 
to hearing before the state board or to have the matter submitted 
directly to the district court for judicial review. We therefore 
conclude that the revisions do not conflict with CAA requirements for 
judicial review of air permitting actions and propose to approve the 
revisions to 17.8.749.
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    \5\ CAA 307(d)(7)(B).
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III. The EPA's Proposed Action

    In this action, the EPA is proposing to approve SIP amendments to 
Administrative Rules of Montana, shown in Table 1, submitted by the 
State of Montana on February 23, 2017.

Table 1--List of Montana Amendments That the EPA Is Proposing To Approve
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    Amended Sections in the February 23, 2017 Submittal Proposed for
                                Approval
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17.8.610(3), 17.8.612(10) and (11), 17.8.613(8) and (9), 17.8.614(8) and
 (9), 17.8.615(6) and (7), 17.8.749(7).
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IV. Incorporation by Reference

    In this document, the EPA is proposing to include regulatory text 
in a final EPA rule that includes incorporation by reference. In 
accordance with requirements of 1 CFR 51.5, the EPA is proposing to 
incorporate by reference the amendments described in section III. The 
EPA has made, and will continue to make, these materials generally 
available through www.regulations.gov and at the EPA Region 8 Office 
(please contact the person identified in the FOR FURTHER INFORMATION 
CONTACT section of this preamble for more information).

V. 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, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve 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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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 (Public Law 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 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).
    In addition, 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 proposed 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, Greenhouse 
gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: June 28, 2019.
Gregory Sopkin,
Regional Administrator, EPA Region 8.
[FR Doc. 2019-14243 Filed 7-5-19; 8:45 am]
 BILLING CODE 6560-50-P