[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
[[Page 32362]]
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).
---------------------------------------------------------------------------
\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)).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\2\ Email from State of Montana to the EPA (September 30, 2016).
\3\ 80 FR 50582 (August 20, 2015).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\4\ 80 FR 30987 (June 1, 2015).
---------------------------------------------------------------------------
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
[[Page 32363]]
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.
---------------------------------------------------------------------------
\5\ CAA 307(d)(7)(B).
---------------------------------------------------------------------------
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
------------------------------------------------------------------------
Amended Sections in the February 23, 2017 Submittal Proposed for
Approval
-------------------------------------------------------------------------
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).
------------------------------------------------------------------------
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