[Federal Register Volume 85, Number 20 (Thursday, January 30, 2020)]
[Rules and Regulations]
[Pages 5327-5330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00196]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2019-0163; FRL-10003-37-Region 8]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) revision submitted by the State of Montana on

[[Page 5328]]

May 24, 2018. The revisions 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 revisions 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 the Clean Air Act (CAA).

DATES: This rule is effective on March 2, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R08-OAR-2019-0163. 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 http://www.regulations.gov, or please contact the person identified in the 
``For Further Information Contact'' section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Crystal Ostigaard, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, 
Colorado, 80202-1129, (303) 312-6602, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means the EPA.

I. Background

    On October 15, 2019 (84 FR 55104), the EPA proposed to approve 
revisions to the State of Montana's SIP that would remove a prohibition 
on the open burning of asbestos and asbestos-containing materials 
located in the SIP-approved ARM Title 17, chapter 8, subchapter 6 (ARM 
located at 17.8.604(1)(w)) and the similar provision in the SIP-
approved Lincoln County Air Pollution Control Program (located at 
75.1.405(2)(w)). The revision would also remove a corresponding cross-
reference located in SIP-approved ARM Title 17, chapter 8, subchapter 3 
(concerning wood-waste burners) (reference located at 17.8.320(9)).
    We received four comments on our proposed rule. Section II of this 
final rule provides a summary of the comments that were received and 
our corresponding responses.

II. Response to Comments

    Comment: The first commenter discusses the general physical and 
chemical characteristics of asbestos and the consequences to human 
health when inhaled. In addition, the commenter provides a brief 
discussion on where asbestos has been banned and that only a few 
developed countries, including the United States, currently have no 
ban. The commenter briefly mentions that the EPA has attempted to ban 
asbestos but has faced lawsuits against this prohibition. Additionally, 
the commenter provides brief information from a July 1, 2019 Reuters 
article that claimed that several states filed a lawsuit against the 
EPA to enact stricter requirements for asbestos. The commenter cites 
Libby, Montana as a prime example of the consequences of having 
asbestos in the air and provides a quote from the Asbestos.com website 
that describes Libby, Montana as ``the site of one of America's worst 
man-made environmental disasters.'' Furthermore, the commenter 
reiterates that the EPA even declared a Public Health Emergency in 2008 
in Libby, Montana, due to the asbestos dust from the mining of 
vermiculite and only recently (2018) announced a decline in clean-up 
efforts. The commenter concludes that the EPA should not approve the 
revisions.
    Response: The EPA is concerned about the potential for adverse 
health effects of asbestos based on established sound scientific data 
indicating that asbestos is a known human carcinogen. Indeed, the 
Agency administers several laws and regulations pertaining to asbestos, 
see https://www.epa.gov/asbestos/asbestos-laws-and-regulations, 
including the CAA. For example, the CAA requires that the EPA establish 
national emission standards for hazardous air pollutants (NESHAP), 
including asbestos. To that end, asbestos was one of the first 
hazardous air pollutants regulated under the air toxics program, 
currently found at 40 CFR part 61, subpart M. That regulation has been 
amended several times, see https://www.epa.gov/stationary-sources-air-pollution/asbestos-national-emission-standards-hazardous-air-pollutants. Nevertheless, while the commenter raises concerns with 
asbestos generally and with asbestos mining in Libby, Montana, 
specifically, the comment does not identify any material issues 
pertaining to the EPA's review of a SIP revision under the National 
Ambient Air Quality Standards (NAAQS) program. Accordingly, the EPA is 
finalizing its approval of Montana's SIP revision. The EPA notes, 
nonetheless, that Montana is not removing the burning prohibitions from 
state law and this action does not exempt any sources from compliance 
with the national emission standards for asbestos in Subpart M.
    Comment: The second commenter discusses the general health effects 
of asbestos reported from the World Health Organization and that, even 
though the NESHAP have in place regulations on burning of asbestos 
materials, the EPA should have as many regulations as possible to 
discourage burning of this material. Additionally, the commenter 
discusses that the safety of the City of Libby, neighboring states, and 
the nation of Canada should have been considered to verify that these 
populations were protected from harmful asbestos particulates. 
Furthermore, the commenter mentions that particles from asbestos will 
not remain as air pollution but could contaminate local water systems 
(lakes, rivers, reservoirs, and groundwater). The commenter concludes 
that the EPA should reject the revisions.
    Response: As discussed above, asbestos is regulated under several 
EPA-administered laws and regulations, including the CAA's air toxics 
program. The NESHAP regulates hazardous air pollutants (HAPs), which 
are pollutants that are known or suspected to cause cancer or other 
serious health effects; to that end, EPA has established national 
emission standards for asbestos and certain asbestos-containing 
materials in 40 CFR part 61, subpart M. Nevertheless, the comment does 
not identify any CAA provisions that the commenter believes either the 
EPA or the State failed to address with respect to interstate 
emissions, international emissions, or water pollution, nor does the 
comment identify any material issues pertaining to the EPA's review of 
a SIP revision under the NAAQS program. Accordingly, the EPA is 
finalizing its approval of Montana's SIP revision.
    Comment: The third commenter discusses the general consequences to 
human health when asbestos is inhaled. The commenter also provides 
information from the World Health Organization and the International 
Labor Organization about global estimates that 125 million are exposed 
to asbestos each year and 107,000 workers die every year from 
occupational exposure to airborne asbestos, respectively. The commenter 
concludes that the EPA should not approve the revisions.
    Response: As discussed above, the EPA is concerned about the 
potential health risks associated with asbestos

[[Page 5329]]

and administers several laws and regulations pertaining to asbestos. 
Nonetheless, the comment does not identify any material issues 
pertaining to the EPA's review of a SIP revision under the NAAQS 
program. Accordingly, the EPA is finalizing its approval of Montana's 
SIP revision.
    Comment: The fourth commenter briefly discusses the consequences to 
human health when asbestos is inhaled and provides a quote from the 
American Cancer Society that the U.S. Occupational Health and Safety 
Administration estimates that over a million American employees in 
construction and general industries face asbestos exposure on the job. 
Additionally, the commenter provides a quote from an article discussion 
on mesothelioma settlements that the mass asbestos exposure from the 
vermiculite mines in Libby resulted in two payouts: (1) 2011, $43 
million settlement covering more than 1,300 miners and their estates; 
and, (2) 2017, $25 million settlement to more than 1,000 people. The 
commenter concludes that the State of Montana and the EPA are not 
concerned with the dangers of asbestos, nor the consequences on public 
health; therefore, the EPA should not approve the revisions.
    Response: As discussed above, the EPA is concerned about the 
potential health risks associated with asbestos and administers several 
laws and regulations pertaining to asbestos. Nonetheless, the comment 
does not identify any material issues pertaining to the EPA's review of 
a SIP revision under the NAAQS program. Accordingly, the EPA is 
finalizing its approval of Montana's SIP revision.

III. Final Action

    We are finalizing our approval of the following revisions to the 
Montana SIP that were submitted on May 24, 2018: (1) Removal of ARM 
17.8.604(1)(w); (2) removal of the reference to ARM17.8.604(1)(w) in 
ARM 17.8.320(9); and (3) 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 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 the 
SIP amendments described in Section I and III of this preamble. 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 
State implementation plan, 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 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 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. 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 March 30, 2020. Filing a 
petition for reconsideration by 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, 
Greenhouse gases, Incorporation by reference, Intergovernmental 
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur oxides, Volatile organic 
compounds.


[[Page 5330]]


    Dated: December 31, 2019.
Debra Thomas,
Acting 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 entries for ``17.8.320,'' ``17.8.604,'' and ``1660 Resolution.''
    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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                                                  * * * * * * *
17.8.320.....................  Wood-waste       ..............       1/30/2020  [Insert Federal  Removed (1)(w).
                                Burners.                                         Register
                                                                                 citation].
 
                                                  * * * * * * *
17.8.604.....................  Materials        ..............       1/30/2020  [Insert Federal  Removed cross-
                                Prohibited                                       Register         reference to
                                from Open                                        citation].       ARM17.8.604(1)
                                Burning.                                                          (w).
 
                                                  * * * * * * *
1660 Resolution..............  Lincoln County   ..............       1/30/2020  [Insert Federal  Removed
                                Health and                                       Register         75.1.405(2)(w)
                                Environment                                      citation].       .
                                Regulations.
 
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[FR Doc. 2020-00196 Filed 1-29-20; 8:45 am]
BILLING CODE 6560-50-P