[Federal Register Volume 84, Number 199 (Tuesday, October 15, 2019)]
[Proposed Rules]
[Pages 55104-55107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22206]



[[Page 55104]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2019-0163; FRL-10000-98-Region 8]


Approval and Promulgation of Implementation Plans; State of 
Montana; State Implementation Plan Revisions for Open Burning

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a State Implementation Plan (SIP) revision submitted by the 
State of Montana on May 24, 2018. The revision would remove a 
prohibition on the open burning of asbestos and asbestos-containing 
materials located in the SIP-approved Administrative Rules of Montana 
(ARM) Title 17, chapter 8, subchapter 6 and the similar provision in 
the SIP-approved Lincoln County Air Pollution Control Program. The 
revision would also remove a corresponding cross-reference located in 
SIP-approved ARM Title 17, chapter 8, subchapter 3 (concerning wood-
waste burners). The EPA is taking this action pursuant to section 110 
of the Clean Air Act (CAA).

DATES: Written comments must be received on or before November 14, 
2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2019-0163, 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 
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 Program, 
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: Crystal Ostigaard, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD-QP, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, (303) 312-6602, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

I. Background

    ARM Title 17, chapter 8, subchapter 6 contains Montana's open 
burning provisions, which make up the Montana smoke management plan. 
The smoke management plan regulates open burning across the state in 
order to limit smoke impacts on the National Ambient Air Quality 
Standards (NAAQS). The plan separates open burning into ``major'' and 
``minor'' categories: Open burning that emits more than 500 tons per 
year (tpy) of carbon monoxide or 50 tpy of any other pollutant is 
major. See ARM 17.8.601. Major open burning sources must obtain a 
permit from Montana's Department of Environmental Quality (DEQ), ARM 
17.8.610; minor open burning sources must comply with seasonal and 
regional restrictions, ARM 17.8.606. In both cases, open burning 
sources must apply best available control technology (BACT) as defined 
in ARM 17.8.601. Furthermore, the plan prohibits the open burning of 
certain materials, including asbestos and asbestos-containing 
materials, ARM 17.8.604(1)(w).
    ARM 17.8.320 regulates wood-waste burners and generally prohibits 
the burning or disposal of certain products and materials in wood-waste 
burners, including asbestos and asbestos-containing materials, ARM 
17.8.320(9) (cross-referencing other prohibited materials specified in 
ARM 17.8.604(1), including (1)(w)).
    On August 13, 2001 (66 FR 42427), the EPA initially approved 
Montana's ARM 17.8.604--Open Burning (formerly ARM 16.8.1302), and 
Montana's ARM 17.8.320--Wood-Waste Burners. On August 20, 2015 (80 FR 
50584), the EPA approved revisions to ARM 17.8.604, and on February 26, 
2008 (73 FR 10150), the EPA approved revisions to ARM 17.8.320.
    The Libby, Montana area was designated nonattainment for coarse 
particulate matter (PM10) by operation of law on November 
15, 1990 (56 FR 56694, 56794, November 6, 1991), under CAA section 
107(d)(4)(B) and was classified as `Moderate.' The PM10 
attainment plan and Lincoln County Air Pollution Control Program were 
approved by EPA on August 30, 1994 (59 FR 44627). Additionally, on 
September 30, 1996 (61 FR 51014), the EPA approved revisions to the 
Libby, Montana PM10 SIP and Lincoln County Air Pollution 
Control Program, which included the analogous prohibition on the open 
burning of asbestos and asbestos-containing materials. Subsequently, 
portions of Lincoln County, including the town of Libby, were 
designated nonattainment for the 1997 fine particulate matter 
(PM2.5) annual standard (74 FR 944, Jan. 5, 2005). On March 
17, 2011 (76 FR 14584), the EPA approved the PM2.5 
attainment plan, including the Lincoln County prohibition on open 
burning of asbestos and asbestos-containing materials, and on July 14, 
2015 (80 FR 40911), the EPA determined that the area attained the 1997 
annual standard by the applicable attainment date. In its May 24, 2018 
submittal, Montana states that the prohibitions on the burning of 
asbestos and asbestos-containing material were not necessary to include 
in the SIP. Although Montana's smoke management plan generally ensures 
attainment and maintenance of the NAAQS, the specific prohibition on 
the burning of asbestos and asbestos-containing materials in ARM 
17.8.604(1)(w) and elsewhere are not related to protection of the 
NAAQS. According to the State, the provisions related to asbestos and 
asbestos-containing materials ``should never have been included in the 
SIP.'' \1\ Instead, Montana intends that such provisions remain as 
state-only regulations, where

[[Page 55105]]

they will continue to protect public health and welfare.\2\ In 
accordance with CAA section 110(l), the State provided a demonstration 
that the SIP revision (i.e., removal of the prohibition in ARM 
17.8.604(1)(w) and in Lincoln County regulation 75.1.405(2)(w)) would 
not interfere with maintenance of the NAAQS, specifically the 
PM2.5 and PM10 NAAQS.
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    \1\ May 24, 2018 State of Montana SIP revision submittal; 110(l) 
Demonstration.
    \2\ Ibid.
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II. The State's Submittal and the EPA's Evaluation

    Section 110(k) of the CAA addresses the EPA's actions on 
submissions of revisions to a SIP. The CAA requires states to observe 
certain procedural requirements in developing SIP revisions for 
submittal to the EPA. Section 110(l) of the CAA requires that each SIP 
revision submitted by a state be adopted after reasonable notice and 
public hearing. Additionally, the EPA cannot approve a SIP revision if 
the revision would interfere with any applicable requirements 
concerning attainment and reasonable further progress (RFP) toward 
attainment of the NAAQS, or any other applicable requirement of the 
Act.
    Montana's May 24, 2018 submittal explains that some rules or 
provisions that are not specifically NAAQS-protective had been 
submitted and approved into the SIP. For example, while Montana's smoke 
management plan generally protects the NAAQS from smoke impacts, the 
list of prohibited materials in ARM 17.8.604 itself does not 
specifically address criteria pollutants. In other words, the 
regulation of open burning in general is intended to mitigate smoke 
impacts, not to specifically prohibit burning of asbestos or asbestos-
containing materials. Accordingly, Montana requests that the 
prohibition be removed from the SIP although it would remain as a state 
and local regulation.
    Montana's submittal provides an air quality analysis to show that 
removal of the prohibition in ARM 17.8.604(1)(w) and Lincoln County 
Ordinance 75.1.405(2)(w) would not interfere with the NAAQS, 
specifically for PM10 and PM2.5.\3\ The submittal 
first discusses the State areas that are or previously were designated 
nonattainment for PM10 and PM2.5. These are 
provided in Table 1 below.
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    \3\ While the submittal identifies other areas that are or 
previously were designated nonattainment for the carbon monoxide 
(CO), sulfur dioxide (SO2), and lead (Pb) NAAQS, Montana 
notes that particulate matter is the criteria pollutant most 
directly related to burning, or, more specifically, to the smoke 
that results from combustion. Accordingly, the State's analysis 
focuses on attainment and maintenance of the particulate matter 
NAAQS across Montana.

   Table 1--Montana Nonattainment Areas for PM10 and PM2.5 With EPA Final Attainment Plan Approval and Current
                                          Determinations of Attainment
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                                                                                               Determination of
        Nonattainment area          Standard violated     Designation   Final plan approval       attainment
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Butte............................  PM10 (1987)........        11/15/90  3/22/95, 60 FR
                                                                         15056.
Columbia Falls...................  PM10 (1987)........        11/15/90  3/19/96, 61 FR       1/31/11, 76 FR
                                                                         11153.               5280.
Kalispell........................  PM10 (1987)........        11/15/90  3/19/96, 61 FR
                                                                         11153.
Libby............................  PM10 (1987)........        11/15/90  9/30/96, 61 FR       1/31/11, 76 FR
                                                                         51014.               5280.
Libby............................  PM2.5 (1997).......          4/5/05  3/17/11, 76 FR       7/14/15, 80 FR
                                                                         14584.               40911 *.
Missoula.........................  PM10 (1987)........        11/15/90  8/30/95, 60 FR       5/24/19, 84 FR
                                                                         45051.               24037 **.
Thompson Falls...................  PM10 (1987)........         1/20/94  1/22/04, 69 FR 3011  11/1/01, 66 FR
                                                                         *.                   55102.
Whitefish........................  PM10 (1987)........        10/19/93  4/24/08, 73 FR       11/1/01, 66 FR
                                                                         22057 *.             55102.
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* Included a clean data determination.
** The Missoula area was redesignated to attainment after Montana submitted the May 24, 2018 revision.

    As further support, the State examined recent ambient air quality 
data for 2016 in the areas that historically have had PM10 
and/or PM2.5 issues. The State provided design values for 
the period 2014-2016 as shown in Table 2 below.\4\
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    \4\ State of Montana's CAA Sec.  110(l) Anti-Backsliding 
Demonstration.

           Table 2--2016 Design Values for PM10 and PM2.5 Nonattainment Areas in the State of Montana
                                                  [[micro]g/m3]
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                                                                        2016 Design values
      Nonattainment area           Standard          Current     --------------------------------   Designation
                                   violated          standard            *              **
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Butte........................  PM10 (1987).....  150............          52, 51          52, 45        11/15/90
                                                 24-hour........
Columbia Falls...............  PM10 (1987).....  150............          45, 44          45, 44        11/15/90
                                                 24-hour........
Kalispell....................  PM10 (1987).....  150............          87, 84          87, 84        11/15/90
                                                 24-hour........
Libby........................  PM10 (1987).....  150............          58, 57          45, 45        11/15/90
                                                 24-hour........
                                                                 --------------------------------
Libby........................  PM2.5 (1997)....  12 annual......                9.8                       4/5/05
                                                                 --------------------------------
Missoula.....................  PM10 (1987).....  150............          74, 65          74, 65        11/15/90
                                                 24-hour........
Thompson Falls...............  PM10 (1987).....  150............         135, 97          97, 89         1/20/94
                                                 24-hour........

[[Page 55106]]

 
Whitefish....................  PM10 (1987).....  150............         106, 98         106, 98        10/19/93
                                                 24-hour........
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* First high, second high including all flagged events.
** First high, second high excluding flagged events over 150 [micro]g/m3.

    Montana asserts that all of the State's particulate matter 
nonattainment areas are currently attaining the standard for which they 
were designated, and most (as identified in Table 1) have received a 
determination of attainment from the EPA. The EPA will work with DEQ to 
redesignate the nonattainment areas that are attaining; however, the 
EPA will not reach any final conclusions until the State of Montana 
provides a formal submittal for a redesignation request for 
PM10 and PM2.5 nonattainment areas and after we 
conduct our own notice and comment rulemaking.
    Montana's submittal then notes that in the areas that have been 
designated nonattainment for PM10 and PM2.5, the 
approved attainment plans did not identify open burning as a major 
contributor to nonattainment. For example, in the Missoula 
PM10 attainment plan, the State identified re-entrained road 
dust and residential wood combustion as the primary contributors of 
PM10. See 58 FR 48342. For Montana's only PM2.5 
nonattainment area, Libby, the State identified residential wood 
combustion as the primary contributor of PM2.5, followed by 
re-entrained road dust and locomotive emissions. See 75 FR 55717.
    The submittal also notes that open burning continues to be 
controlled generally under Montana's smoke management plan. The program 
generally requires open burning to be controlled using BACT; a number 
of techniques are listed that may be included in BACT, see ARM 
17.8.601. Another feature of the program is DEQ's evaluation of 
meteorological conditions during the winter months. Depending on those 
conditions, even minor open burning in areas such as mountain valleys 
may be prohibited if it may risk increasing PM2.5 
concentrations above the NAAQS. The submittal concludes that the open 
burning program, as revised by removal of the prohibition on burning 
asbestos, is adequate to protect the NAAQS at the same level of 
stringency as the current SIP. For details of Montana's analysis, 
please see the submittal in the docket for this action.
    The EPA has reviewed the State's submission and proposes to approve 
the SIP revision. The Agency agrees that removing the prohibition on 
burning asbestos or asbestos-containing materials from Montana's SIP 
will not interfere with any applicable requirement concerning 
attainment and RFP, or any other applicable requirement of the CAA.
    First, the EPA notes that the disposal of asbestos-containing waste 
material is regulated under the National Emission Standards for 
Hazardous Air Pollutants (NESHAP). See 40 CFR part 61, subpart M. For 
material subject to the asbestos NESHAP, open burning is not allowed. 
The removal of the prohibition on burning asbestos or asbestos-
containing materials from Montana's SIP in no way impacts or modifies 
the asbestos NESHAP or the existing delegation of authority to Montana 
to implement and enforce the NESHAP.\5\ Accordingly, full compliance 
with the asbestos NESHAP is required and will not be impacted by this 
SIP revision.
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    \5\ https://www.epa.gov/region8/delegations-authority-nsps-and-neshap-standards-states-and-tribes-region-8.
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    Second, the EPA proposes to conclude that removal of the 
prohibition will not interfere with any applicable requirement 
concerning attainment and RFP. The State's submittal explains that 
Montana's open burning program, as revised by removal of the 
prohibition, is adequate to protect the NAAQS at the same level of 
stringency as the current SIP. Open burning is generally controlled 
under ARM 17.8, subchapter 6.
    The State recognizes, nonetheless, that the prohibition in ARM 
17.8.604(1)(w) may have had a secondary result of ``essentially banning 
open burning of any wood'' from asbestos-contaminated forests in the 
Libby nonattainment area. Thus, the EPA is mindful that removing the 
prohibition could increase the total acreage of land that may be 
subjected to prescribed burns in the State. However, the Libby 
nonattainment area includes the city of Libby and other developed areas 
(i.e., not just forest land). Furthermore, as the State explained, any 
prescribed burns would be controlled under ARM 17.8, subchapter 6, 
including the application of BACT (e.g., scheduling of burning during 
periods and seasons of good dispersion; minimizing smoke impacts; 
limiting the amount of burning to be performed during any one time; 
selecting sites that will minimize smoke impacts, etc.). Thus, the 
slight increase in acreage available to burn is not reasonably expected 
to result in a material increase in prescribed burning or a material 
increase of emissions that would interfere with attainment or 
maintenance of the NAAQS.
    As noted above, Montana's submittal included an air quality 
analysis the State believes would demonstrate that the revised SIP will 
be adequate to maintain the NAAQS. In particular, Montana's analysis 
excludes certain monitor days flagged by the State as potentially 
impacted by activities that are atypical or not expected to occur again 
in the future. At this time, however, the State has not prepared any 
demonstrations and EPA has not made any determination regarding whether 
the flagged data should be excluded from the Air Quality System 
database or any future regulatory determinations. While we take no 
position on the flagged data at this time, for the reasons discussed 
above, we agree that removing the prohibition in ARM 17.8.604(1)(w) 
will not interfere with any applicable requirements concerning 
attainment and RFP toward attainment of the NAAQS, or any other 
applicable requirement of the Act. With respect to the removal of the 
corresponding provision for Lincoln County, we note that we fully 
approved the PM10 and PM2.5 attainment plans for 
Lincoln County, and determined that the area attained by the applicable 
attainment date for both standards. Thus, there are currently not any 
attainment-related planning obligations for Lincoln County with which 
the revision might interfere.
    As discussed above, PM10 and PM2.5 impacts in 
Lincoln County are not believed to be attributable to open burning. 
Indeed, emission inventories

[[Page 55107]]

and chemical mass balance studies linked PM10 impacts with 
dust and, to a smaller degree, residential wood combustion. Similar 
analyses for PM2.5 tied impacts primarily to residential 
wood combustion. Further, open burning is subject to open burning 
regulations, including the application of BACT. Thus, removal of the 
Lincoln County provision that prohibits the burning of asbestos and 
asbestos-containing materials will not interfere with any applicable 
CAA requirement, including attainment and RFP.
    Finally, section 110(l) requires that each revision to the SIP 
submitted by a state shall be adopted by the state after reasonable 
notice and opportunity for public hearing. The DEQ held a public 
comment period from October 18, 2017, to November 17, 2017, on the 
proposed revision and received no public comments or requests for a 
public hearing.

III. Proposed Action

    We are proposing to approve the following revisions to the Montana 
SIP that were submitted on May 24, 2018: Removal of ARM 17.8.604(1)(w), 
removal of the reference to ARM17.8.604(1)(w) in ARM 17.8.320(9), and 
removal of 75.1.405(2)(w) in the Lincoln County Air Pollution Control 
Program.

IV. Incorporation by Reference

    In this document, the EPA is proposing to include regulatory text 
in an EPA final rule that includes incorporation by reference. In 
accordance with requirements of 1 CFR 51.5, the EPA is proposing to 
remove ARM 17.8.604(1)(w), including the reference to ARM 
17.8.604(1)(w) in ARM 17.8.320(9), and 75.1.405(2)(w) in the Lincoln 
County Air Pollution Control Program from the Montana SIP. 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 (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 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, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: October 4, 2019.
Gregory Sopkin,
Regional Administrator, EPA Region 8.
[FR Doc. 2019-22206 Filed 10-11-19; 8:45 am]
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