[Federal Register Volume 84, Number 149 (Friday, August 2, 2019)]
[Rules and Regulations]
[Pages 37774-37778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16382]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2019-0268; FRL-9997-07-Region 8]


Approval and Promulgation of Air Quality Implementation Plans; 
Montana; Incorporation by Reference Updates

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving State 
Implementation Plan (SIP) revisions submitted by the State of Montana 
on August 6, 2018. The revisions include an update to incorporate by 
reference the 2016 version of the Code of Federal Regulations (CFR) and 
2015 version of the United States Code (U.S.C.) within the 
Administrative Rules of Montana (ARM) that are part of the Montana SIP. 
The revisions also include administrative changes that consolidate

[[Page 37775]]

the ARM's references to the CFR and U.S.C. and remove two CFR 
exemptions from incorporation by reference into the ARM. Additional 
revisions remove incorporation by reference of certain EPA standards 
for which the State already has delegated authority from the EPA.

DATES: This final rule is effective on September 3, 2019.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R08-OAR-2019-0268. All documents in the docket are 
listed on the http://www.regulations.gov website. 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, is not placed on the 
internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available through 
www.regulations.gov, or please contact the person identified in the 
``For Further Information Contact'' section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Chris Dresser, Air and Radiation 
Division, U.S. Environmental Protection Agency (EPA), Region 8, Mail 
Code 8ARD-QP, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 
312-6385, [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    In a rulemaking published on June 10, 2019 (84 FR 26806), the EPA 
proposed approval of SIP revisions submitted by the State of Montana 
to: (1) Amend ARM 17.8.103, 17.8.302, 17.8.602, 17.8.767, 17.8.802, 
17.8.902, 17.8.1002, 17.8.1102, and 17.8.1402 to remove repetitive text 
describing the location of rule reference material and centralize and 
consolidate those reference citations into sections 17.8.102(3) and 
(4); (2) Modify air quality rules by correcting an internal reference 
in ARM 17.8.904; (3) Amend ARM 17.8.102(2), to remove the exemptions of 
40 CFR part 63, subparts JJJJJ and KKKKK; (4) Remove references to 40 
CFR parts 60, 61, and 63 in ARM 17.8.102(2), 17.8.103(1)(f)-(i), 
17.8.302(1)(a)-(c), 17.8.767(1)(c)-(d), 17.8.802(1)(c)-(d), 
17.8.902(1)(a)-(b), and 17.8.1002(1)(a)-(b) from the SIP, because 
Montana has separately been delegated authority for parts 60, 61, and 
63; and (5) Update ARM 17.8.102(1) to incorporate by reference the 2016 
version of the CFR and the 2015 version of the U.S.C. In this 
rulemaking the EPA is taking final action to approve proposed revisions 
1, 3, 4, and 5. The reasons for our approval are provided in the 
proposed rule.
    The EPA proposed to modify Montana's SIP by correcting an internal 
reference in ARM 17.8.904 (revision #2 described earlier). However, 
since the affected section (17.8.904(7)) has not yet been approved into 
Montana's SIP, the correction cannot be finalized in this action. The 
EPA plans to approve the affected section with the correct internal 
reference in a future rulemaking.
    Additionally, the EPA proposed removal of references to 40 CFR 
parts 60 and 61 within ARM section 17.8.767. This change was mistakenly 
described in the proposed rule as removing sections 17.8.767(1)(c)-(d), 
but the currently approved SIP defines those particular CFR references 
under sections 17.8.767(1)(d)-(e). Therefore, consistent with the 
intent of the State's rule change, the EPA will be removing the 
appropriate sections (17.8.767(1)(d)-(e)) from Montana's currently 
approved SIP in this final rule.

II. Response to Public Comments

    The EPA received one anonymous comment letter on the EPA's proposed 
approval of SIP revisions submitted by the State of Montana.
    Comment 1: The commenter remarks that the EPA states it is 
necessary and appropriate to incorporate NESHAP JJJJJ and KKKKK into 
the SIP, but the EPA does not say why it is necessary. Further, the 
commenter states that there should be no reason for a state to 
incorporate federal rules into their SIP as they are already federally 
enforceable, and the State does not need to get SIP approval for the 
State to get delegation for state enforcement.
    Response 1: The EPA agrees that the State is not required to 
incorporate NESHAPs into its SIP and clarifies that by approving 
Montana's submitted SIP revisions to ARM 17.8.102(2), which would 
remove the exemptions for 40 CFR part 63, subparts JJJJJ and KKKKK from 
the SIP, these NESHAPs will not be part of Montana's SIP. The EPA's 
proposed approval of Montana's revisions to ARM 17.8.102(2) mistakenly 
stated that approval would ``effectively incorporat[e] the most recent 
federal rules covering emissions from brick and structural clay 
products manufacturing and clay ceramics manufacturing into Montana's 
SIP.'' However, the EPA clarifies that approval of Montana's revisions 
to ARM 17.8.102(2) will not result in 40 CFR part 63, subparts JJJJJ 
and KKKKK being included in Montana's SIP. This is because the EPA is 
approving other parts of Montana's SIP submission that request to 
remove the underlying incorporation by reference of all NESHAPs in its 
SIP, including but not limited to subparts JJJJJ and KKKKK. 
Specifically, Montana requested to remove from its SIP ARM 
17.8.103(1)(i) and ARM 17.8.302(1)(c), which incorporate by reference 
all of 40 CFR part 63. Therefore, because the EPA is approving 
Montana's request to remove from its SIP the underlying incorporation 
by reference of all NESHAPs, the removal of the exemption of the 
NESHAPs in subparts JJJJJ and KKKKK from the SIP will not result in 
those two NESHAPs being included in the SIP. Lastly, it is important to 
note that although 40 CFR part 63, subparts JJJJJ and KKKKK are not 
included in Montana's SIP, they are nevertheless included in Montana's 
state administrative rules, and the EPA has delegated to Montana the 
authority to implement those NESHAPs. As a result, even though those 
NESHAPs are not part of Montana's SIP, they are part of a separate EPA 
delegation of authority to Montana, which allows Montana to implement 
and enforce those NESHAPs.
    Comment 2: The commenter states that the EPA says it is necessary 
and appropriate to incorporate the 2016 CFR and the 2015 U.S.C. but 
does not address the fact that doing so would make all changes in the 
CFR since 2016 not applicable in the State and all changes in the 
statute since 2015 not applicable in the State. The commenter further 
suggests that the EPA must disapprove because incorporating old 
versions of the CFR or U.S.C. could be construed to mean that the 2019 
CFR and U.S.C. do not apply until the State incorporates these sections 
by reference. By approving old versions of the CFR or U.S.C. into the 
SIP EPA is allowing the State to be more lenient than the federal 
government in terms of enforcing air pollution requirements.
    Response 2: The EPA disagrees with the commenter's characterization 
of which versions of the CFR and U.S.C. should be adopted through this 
action, and of the consequences of not approving the most recent 
versions. Under CAA section 110(k), the EPA is required to act on a 
state's SIP revision package, which contains requested changes to their 
SIP, and to approve the revision to the extent it meets the 
requirements of the CAA. In this case, the State of Montana requested 
updates to its SIP's incorporation by reference references, which 
currently incorporate the 2013 version of the CFR and 2012 version of 
the U.S.C., so that these references would reflect the 2016 version of 
the CFR and 2015 version of the U.S.C. Such a gap is a normal part of 
the cooperative federalism inherent

[[Page 37776]]

in the SIP process--states must adopt SIP measures through state-level 
processes with specific procedural requirements and submit those 
revisions to the EPA (see generally 40 CFR 51.100 et seq., including 
Appendix V), and then the EPA has up to 18 months in which to act on 
those submissions under CAA section 110(k). In this case, at the time 
Montana started its State rulemaking process, the 2016 and 2015 
versions of the CFR and U.S.C. were the most recent versions available. 
If the State wishes to adopt more recent versions, it will be required 
to submit a SIP package requesting that the EPA update its SIP 
accordingly. Future State rulemaking and SIP update packages will 
continue to update the incorporation by reference dates as appropriate. 
Additionally, the commenter is incorrect in its assertion that the more 
recent versions of the CFR and U.S.C. will not apply. All current 
federal regulations and laws promulgated and published in the CFR and 
U.S.C. apply throughout the nation, including in Montana. So, approving 
these specific SIP revisions do not make the State's enforcement ``more 
lenient'' than under the current federal regulations and laws, even if 
those submissions incorporate since-revised versions of federal laws 
and regulations. Additionally, the commenter does not raise any 
specific differences between the 2016 and 2015 versions of the CFR and 
U.S.C. and the current versions of the CFR and U.S.C. that it believes 
would cause the State's SIP to be ``more lenient'' than current federal 
law and thus not approvable.

III. Final Action

    For the reasons expressed in the proposed rule, and the reasons 
explained in the response to public comments, the EPA is approving the 
SIP submittal, containing recent amendments to the ARM, submitted by 
the State of Montana on August 6, 2018, as follows: (1) Amend ARM 
17.8.103, 17.8.302, 17.8.602, 17.8.767, 17.8.802, 17.8.902, 17.8.1002, 
17.8.1102, and 17.8.1402 to remove repetitive text describing the 
location of rule reference material and centralize and consolidate 
those reference citations into sections 17.8.102(3) and (4); (2) Amend 
ARM 17.8.102(2), to remove the exemptions of 40 CFR part 63, subparts 
JJJJJ and KKKKK; (3) Remove references to 40 CFR parts 60, 61, and 63 
in ARM 17.8.102(2), 17.8.103(1)(f)-(i), 17.8.302(1)(a)-(c), 
17.8.767(1)(d)-(e), 17.8.802(1)(c)-(d), 17.8.902(1)(a)-(b), and 
17.8.1002(1)(a)-(b) from the SIP, because Montana has separately been 
delegated authority for parts 60, 61, and 63; and (4) Update ARM 
17.8.102(1) to incorporate by reference the 2016 version of the CFR and 
the 2015 version of the U.S.C.

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference of 
Administrative Rules of Montana described in the amendments set forth 
to 40 CFR part 52, below. 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). Therefore, these materials have been approved by the EPA 
for inclusion in the SIP, have been incorporated by reference by the 
EPA into that plan, are fully federally enforceable under sections 110 
and 113 of the CAA as of the effective date of the final rulemaking of 
the EPA's approval, and will be incorporated by reference in the next 
update to the SIP compilation.\1\
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    \1\ 62 FR 27968 (May 22, 1997).
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V. Statutory and Executive Orders Review

    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, the 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 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, 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 CAA; 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where 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).
    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. The 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 October 1, 2019. Filing a 
petition for reconsideration by

[[Page 37777]]

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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements.

    Dated: July 26, 2019.
Gregory Sopkin,
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. In Sec.  52.1370, the table in paragraph (c) is amended by revising 
the table entries for ``17.8.102,'' ``17.8.103,'' ``17.8.302,'' 
``17.8.602,'' ``17.8.767,'' ``17.8.802,'' ``17.8.902,'' ``17.8.1002,'' 
``17.8.1102'' and ``17.8.1402''.
    The revisions read as follows:


Sec.  52.1370   Identification of plan.

* * * * *
    (c) * * *

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                                                 State      EPA final rule      Final rule
     State citation          Rule title     effective date       date            citation           Comments
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
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                     (i) Administrative Rules of Montana, Subchapter 01, General Provisions
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
17.8.102...............  Incorporation by        2/23/2018        9/3/2019  [Insert Federal    Excluding (2).
                          Reference.                                         Register
                                                                             citation]. 8/2/
                                                                             2019.
17.8.103...............  Incorporation by        2/23/2018        9/3/2019  [Insert Federal    Excluding (1)(f)-
                          Reference.                                         Register           (i)
                                                                             citation]. 8/2/
                                                                             2019.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                     (ii) Administrative Rules of Montana, Subchapter 03, Emission Standards
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
17.8.302...............  Incorporation by        2/23/2018        9/3/2019  [Insert Federal    Excluding (1)(a)-
                          Reference.                                         Register           (c).
                                                                             citation]. 8/2/
                                                                             2019.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                        (iv) Administrative Rules of Montana, Subchapter 06, Open Burning
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
17.8.602...............  Incorporation by        2/23/2018        9/3/2019  [Insert Federal
                          Reference.                                         Register
                                                                             citation]. 8/2/
                                                                             2019.
 
                                                  * * * * * * *
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(v) Administrative Rules of Montana, Subchapter 07, Permit Construction and Operation of Air Contaminant Sources
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
17.8.767...............  Incorporation by        2/23/2018        9/3/2019  [Insert Federal    Excluding (1)(c)-
                          Reference.                                         Register           (d).
                                                                             citation]. 8/2/
                                                                             2019.
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   (vi) Administrative Rules of Montana, Subchapter 08, Prevention of Significant Deterioration of Air Quality
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
17.8.802...............  Incorporation by        2/23/2018        9/3/2019  [Insert Federal    Excluding (1)(c)-
                          Reference.                                         Register           (d).
                                                                             citation]. 8/2/
                                                                             2019.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
 (vii) Administrative Rules of Montana, Subchapter 09, Permit Requirements for Major Stationary Sources or Major
                                Modifications Locating Within Nonattainment Areas
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                                                  * * * * * * *
17.8.902...............  Incorporation by        2/23/2018        9/3/2019  [Insert Federal    Excluding (1)(a)-
                          Reference.                                         Register           (b).
                                                                             citation]. 8/2/
                                                                             2019.

[[Page 37778]]

 
 
                                                  * * * * * * *
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 (viii) Administrative Rules of Montana, Subchapter 10, Preconstruction Permit Requirements for Major Stationary
                 Sources or Major Modifications Locating Within Attainment or Unclassified Areas
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                                                  * * * * * * *
17.8.1002..............  Incorporation by        2/23/2018        9/3/2019  [Insert Federal    Excluding (1)(a)-
                          Reference.                                         Register           (b).
                                                                             citation]. 8/2/
                                                                             2019.
 
                                                  * * * * * * *
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                (ix) Administrative Rules of Montana, Subchapter 11, Visibility Impact Assessment
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
17.8.1102..............  Incorporation by        2/23/2018        9/3/2019  [Insert Federal
                          Reference.                                         Register
                                                                             citation]. 8/2/
                                                                             2019.
 
                                                  * * * * * * *
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           (xi) Administrative Rules of Montana, Subchapter 14, Conformity of General Federal Actions
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                                                  * * * * * * *
17.8.1402..............  Incorporation by        2/23/2018        9/3/2019  [Insert Federal
                          Reference.                                         Register
                                                                             citation]. 8/2/
                                                                             2019.
 
                                                  * * * * * * *
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[FR Doc. 2019-16382 Filed 8-1-19; 8:45 am]
 BILLING CODE 6560-50-P