[Federal Register Volume 88, Number 140 (Monday, July 24, 2023)]
[Rules and Regulations]
[Pages 47380-47383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15435]



[[Page 47380]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R08-OAR-2021-0003; FRL-10454-02-R8]


Air Approval and Promulgation of Implementation Plans; Montana; 
Libby 1997 Annual PM2.5 Limited Maintenance Plan and Redesignation 
Request

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this document, the Environmental Protection Agency (EPA or 
Agency) is taking three separate but related actions. First, EPA is 
finalizing its determination that the Libby fine particulate matter 
(PM2.5) nonattainment area (Libby Area) is attaining the 
1997 Annual PM2.5 national ambient air quality standards 
(NAAQS or standard) based on 2014-2021 data. Secondly, EPA is 
finalizing approval of Montana's plan for maintaining the 1997 Annual 
PM2.5 NAAQS (limited maintenance plan). Lastly, the EPA is 
finalizing approval of the redesignation of the Libby Area to 
attainment for the 1997 Annual PM2.5 NAAQS, submitted by the 
State of Montana on June 24, 2020. The EPA is taking this action 
pursuant to the Clean Air Act (CAA).

DATES: This rule is effective on August 23, 2023.

ADDRESSES: The EPA has established a docket for this action under 
Docket No. EPA-R08-OAR-2021-0003. All documents in the docket are 
listed on the www.regulations.gov website. Although listed in the 
docket, some information may not be 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: Amrita Singh, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, telephone number: (303) 312-6103, email address: 
[email protected].

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

I. Background

    On July 18, 1997 (62 FR 38652), EPA revised the NAAQS for 
particulate matter to add new standards for PM2.5. The 
Agency established the primary and secondary Annual and 24-hour 
standards for PM2.5. The annual standard was set at 15.0 
micrograms per meter cubed ([mu]g/m\3\) based on a 3-year average of 
Annual mean PM2.5 concentrations, and the 24-hour (daily) 
standard was set to 65 [mu]g/m\3\ based on the 3-year average of the 
annual 98th percentile values of 24-hour PM2.5 
concentrations at each population-orientated monitor within an area.
    On December 14, 2012, EPA promulgated the 2012 PM2.5 
NAAQS, including a revision of the Annual standard to 12.0 [mu]g/m\3\ 
based on a 3-year average of annual mean PM2.5. 
concentrations. The Agency maintained the 24-hour standard of 35 [mu]g/
m\3\ based on a 3-year average of the 98th percentile of 24-hour 
concentrations (see 78 FR 3086; January 15, 2013).
    Subsequent to promulgation of the NAAQS, EPA issued the ``Fine 
Particulate Matter National Ambient Air Quality Standards: State 
Implementation Plan Requirements'' (``PM2.5 SIP Requirements 
Rule) (see 81 FR 58010; August 24, 2016). This rule interprets the 
Act's nonattainment area requirements as they pertain to implementation 
of any of the PM2.5 NAAQS. The PM2.5 SIP 
Requirements Rule also addressed the revocation of the 1997 
PM2.5 NAAQS for all areas. For the Libby Area, revocation of 
the 1997 PM2.5 NAAQS will occur upon the effective date of 
this action, i.e., after EPA has approved a maintenance plan and issued 
a redesignation for the 1997 PM2.5 NAAQS (see 81 FR 58010; 
August 24, 2016).
    On March 17, 2011 (76 FR 14854), EPA approved Montana's attainment 
plan which included an attainment demonstration, an analysis of 
reasonable available control technology/reasonable available control 
measure (RACT/RACM), base-year, and projection year inventories, and 
contingency measures for the 1997 PM2.5 NAAQS for the Libby 
Area. On July 14, 2015 (80 FR 40911), EPA finalized its determination 
that the Libby Area attained the 1997 Annual PM2.5 NAAQS by 
the Area's statutory attainment date of December 31, 2011. The 
determination was based upon quality-assured and certified ambient 
monitoring data for the 2007-2009 monitoring period that demonstrated 
that the Libby area attained the 1997 Annual PM2.5 NAAQS by 
the attainment date. In the same rulemaking, EPA also issued a clean 
data determination under the Agency's Clean Data Policy based upon 
quality-assured and certified ambient air monitoring data that 
demonstrated that the Libby area continued to attain the 1997 Annual 
PM2.5 NAAQS based on the 2011-2014 monitoring data.
    On June 24, 2020, the State of Montana requested that EPA 
redesignate the Libby Area to attainment for the 1997 Annual 
PM2.5 NAAQS and submitted an associated SIP revision 
containing a limited maintenance plan (LMP) for the EPA to review. On 
December 5, 2022, the EPA issued a notice of proposed rulemaking to 
approve Montana's request to redesignate the Libby PM2.5 
nonattainment area to attainment for the 1997 Annual PM2.5 
standard, as well as proposing to approve Montana's plan for 
maintaining the 1997 Annual PM2.5 NAAQS (limited maintenance 
plan).\1\ The proposed rulemaking set forth the basis for determining 
that Montana's redesignation request meets the CAA requirements for 
redesignation for the 1997 Annual PM2.5 standard. Our 
proposed rulemaking also described how Montana had provided for 
continued maintenance of the 1997 Annual PM2.5 NAAQS in 
accordance with EPA's guidance for LMPs, and contained analysis of the 
complete, quality-assured, and certified air quality monitoring data 
for the Libby nonattainment area for 2014-2021.
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    \1\ See 87 FR 74577.
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    The EPA's proposed action provided a 30-day public comment period. 
During this period, we received two comments. The first comment was in 
support of the redesignation of the Libby Area to attainment for the 
1997 Annual PM2.5 NAAQS. The second comment was adverse. Our 
response to the adverse comment is below. The comments have been added 
to the docket (EPA-R08-OAR-2021-0003) for this action and are 
accessible at www.regulations.gov.

II. Response to Comments

    Comment: The commenter alleged that if EPA did not include a 
requirement to phase out or ban wood burning as part of the ``SIP/FIP'' 
that the redesignation of the area to attainment would prove 
``worthless.'' The commenter cited a review by Northeast States for 
Coordinated Air Use Management (NESCAUM) which the commenter claims 
shows that ``wood stoves pollute more than EPA says.'' As a result, the 
commenter argued that the continued presence of wood stoves would be a 
liability to the Libby Area's attainment of the NAAQS. Finally, 
commenter noted that ``there is no safe

[[Page 47381]]

level of air pollution, which the NAAQS do not reflect.''
    Response: We recognize that wood stoves have been a major 
contributor of PM2.5 pollution for the Libby Area, but we 
disagree that a phase out or ban of wood burning is a prerequisite 
before EPA may redesignate the Libby Area.
    The CAA establishes that EPA may not redesignate an area to 
attainment unless (1) the area has attained the NAAQS in question, (2) 
EPA has fully approved the applicable implementation plan for the area, 
(3) the improvement in air quality is due to permanent and enforceable 
reductions in emissions, (4) EPA has fully approved a maintenance plan 
for the area meeting CAA section 175A, and (5) the state containing 
such area has met all CAA section 110 and Part D applicable 
requirements. As EPA explained in the proposal, Montana has met all 
these requirements. To the extent that commenter is arguing that these 
requirements are not met absent a ban or phaseout of wood burning in 
the Libby Area, we do not agree.
    In its submission,\2\ Montana acknowledged that wood combustion 
accounts for the majority of PM2.5 concentrations in the 
Libby nonattainment area based on the state's 2005 baseline inventory 
analysis. In the proposed rulemaking, we explained how Montana's 
approved Moderate nonattainment plan included permanent and enforceable 
rules from the Lincoln County Air Pollution Control Program that went 
into effect February 27th, 2006 \3\ and that addressed emissions from 
solid fuel burning devices which means any fireplace, fireplace insert, 
wood stove, pellet stove, pellet furnace, wood burning heater, wood-
fired boiler, wood or coal-fired furnace, coal stove, or similar device 
burning any solid fuel used for aesthetic, cooking, or heating purposes 
which has a rated capacity of less than 1,000,000 BTU's per hour. We 
also explained in our proposal that the State has demonstrated that the 
area's improved air quality is largely attributed to the emission 
reductions required by the Lincoln County residential wood combustion 
rules. Subchapter 2: Solid Fuel Burning Device Regulations which went 
into effect January 1, 2007, discusses the operating and emission 
limits restrictions for the Libby Area. Section 75.1.204 states that no 
person may install or operate any type of solid fuel burning device 
without a valid Operating Permit issued by the Department. Section 
75.1.205 states prior to installing or operating a solid fuel burning 
device in any residential or commercial property, a person shall apply 
to the Department for the permit and provide certain criteria of 
information. Section 75.1.206 discusses Air Pollution Alerts and states 
the Department may declare an Air Pollution Alert to be in effect 
whenever ambient PM concentrations, as averaged over a four-hour 
period, exceed a level 20 percent below any state or federal ambient 
24-hour standard established for particulate matter; and when 
scientific and meteorological data indicate the average concentrations 
will remain at or above those levels over the next 24 hours.
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    \2\ See Libby Area SIP submission, available in this docket for 
this rulemaking.
    \3\ See Resolution No. 1660 Lincoln County Air Pollution Control 
Program, Health and Environment Regulations.
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    Additionally, in the absence of an Air Pollution Alert, no person 
operating a solid fuel burning device may cause or allow the discharge 
of visible emissions greater than twenty percent opacity. During an Air 
Pollution Alert, no person operating a solid fuel burning device that 
is permitted for use during an Alert, may cause or allow the discharge 
of visible emissions greater than 10 percent opacity. No person may 
operate a standard catalytic or non-catalytic solid fuel burning device 
during an Air Pollution Alert.
    There are conditions for burning that are enforceable in Subchapter 
4: Outdoor Burning Regulations. Furthermore, the Lincoln County Air 
Pollution Control Program rules state that unless prohibited by section 
75.1.104(2)(d), and within 60 days of notification from the Department 
or EPA, the Department shall implement the following contingency 
measures to reduce emissions from a source(s) identified as a 
contributor:
    (a) If residential wood burning is determined to be a contributing 
source, the Department shall implement section 75.1.208.
    (b) If re-entrained dust is determined to be a contributing source, 
the Department shall implement section 75.1.307.
    (c) If industrial facility emissions are determined to be a 
contributing source, the Department shall initiate contingency measures 
to reduce emissions.
    (d) The Department shall address failure to attain NAAQS or to make 
reasonable further progress in reducing emissions attributable to 
natural events or impacts generating activities occurring outside state 
or local jurisdictional control according to EPA policy while 
initiating interim contingency measures at the local level.
    (e) If no emission source(s) can be identified as a contributor, 
the Department shall conduct a comprehensive review, including chemical 
and microscopic filter analysis. Until such time as the review and 
analyses have been completed, the Department shall implement at least 
one of the above contingency measures on an interim basis. Any selected 
interim contingency measure(s) shall remain in effect until the 
Department completes a comprehensive review and determines whether a 
permanent contingency measure is necessary.
    Based on our proposed rulemaking, we analyzed the PM2.5 
One-year Annual Mean Concentrations for the Libby Area from 2014-2021 
which are all below the 1997 PM2.5 Annual NAAQS of 15.0 ug/
m\3\. In addition, none of the annual design values from 2016-2021 from 
the Libby Area monitoring site exceeded the 1997 annual 
PM2.5 NAAQS of 15.0 ug/m\3\, and as such, EPA proposes to 
determine that the Libby Area has attained the 1997 annual 
PM2.5 NAAQS.
    The NESCAUM report cited [https://www.nescaum.org/documents/nescaum-review-of-epa-rwh-nsps-certification-program-rev-3-30-21.pdf] 
does raise significant concerns with EPA's certification program 
relevant to Cord Wood appliances, and EPA is taking steps to revise 
Cord Wood appliance test methods to rectify the concerns that NESCAUM 
has raised. However, these issues do not directly impact the Libby, MT 
1997 PM2.5 NAAQS redesignation request and LMP approval, 
because we do not rely on any way the Cord Wood appliances test methods 
or results as a basis for the redesignation or as a part of the LMP. We 
therefore do not agree that the NESCAUM review has any relevance to 
this action.
    The commenter's statements regarding safe levels of pollution and 
whether the NAAQS are reflective of such safe levels are beyond the 
scope of this action, which revises one area's designation for a 
promulgated NAAQS based on EPA's assessment of the state's submission.

III. Final Action

    Based on our review of the Libby PM2.5 Plan submitted by 
State of Montana, air quality monitoring data, and other relevant 
materials, the comment letters we received, and for the reasons 
described in our proposed rule, the EPA is finalizing approval of 
Montana's plan for maintaining the 1997 Annual PM2.5 NAAQS 
(limited maintenance plan) and is redesignating the Libby Area to 
attainment for the 1997 Annual PM2.5 NAAQS.

[[Page 47382]]

    By finalizing the redesignation of the Libby Area to attainment for 
the 1997 Annual PM2.5 NAAQS and finalizing the approval of 
the LMP for the 1997 Annual PM2.5 NAAQS, the 1997 primary 
Annual PM2.5 NAAQS will be revoked in the Libby Area on the 
effective date of this redesignation, August 23, 2023. Beginning on 
that date, the Area will no longer be subject to transportation or 
general conformity requirements for the 1997 Annual PM2.5 
NAAQS due to the revocation of the primary NAAQS (see 81 FR 58125; 
August 24, 2016). The Area is required to implement its approved LMP 
for the 1997 Annual PM2.5 NAAQS that is being approved in 
this action. The approved LMP can only be revised if the revision meets 
the requirements of CAA section 110(l) and, if applicable, CAA section 
193.

IV. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the 
accompanying approval of a maintenance plan under section 107(d)(3)(E) 
are actions that affect the status of a geographical area and do not 
impose any additional regulatory requirements on sources beyond those 
imposed by state law. A redesignation to attainment does not in and of 
itself create any new requirements, but rather results in the 
applicability of requirements contained in the CAA for areas that have 
been redesignated to attainment. Moreover, 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, EPA's role is to 
approve state choices, provided that they meet the criteria of the CAA. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For these reasons, 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);
     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
     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).
    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.
    The State of Montana did not evaluate environmental justice 
considerations as part of its SIP submittal; the CAA and applicable 
implementing regulations neither prohibit nor require such an 
evaluation. EPA did not perform an EJ analysis and did not consider EJ 
in this action. Due to the nature of the action being taken here, this 
action is expected to have a neutral to positive impact on the air 
quality of the affected area. Consideration of EJ is not required as 
part of this action, and there is no information in the record 
inconsistent with the stated goal of E.O. 12898 of achieving 
environmental justice for people of color, low-income populations, and 
Indigenous peoples.
    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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by September 22, 2023. 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

40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Greenhouse gases, Incorporation by reference, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

[[Page 47383]]

40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
and Wilderness areas.

    Dated: July 15, 2023.
KC Becker,
Regional Administrator, Region 8.

    For the reasons set forth in the preamble, 40 CFR parts 52 and 81 
are 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 (e) is amended by adding 
the entry ``Libby 1997 PM2.5 Limited Maintenance Plan'' 
under the heading entitled ``(5) Lincoln County'' at the end of the 
section to read as follows:


Sec.  52.1370  Identification of plan.

* * * * *
    (e) * * *

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                                                                   Notice of
                 Title/subject                       State        final rule              NFR citation
                                                effective date       date
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                                                  * * * * * * *
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                                               (5) Lincoln County
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Libby 1997 PM2.5 Limited Maintenance Plan.....  ..............       7/24/2023  [insert Federal Register
                                                                                 citation].
 
                                                  * * * * * * *
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0
3. In Sec.  52.1374, add paragraph (i) to read as follows:


Sec.  52.1374  Control strategy: Particulate matter.

* * * * *
    (i) On June 24, 2020, the State of Montana submitted limited 
maintenance plans for the Libby PM2.5 nonattaiment areas and 
requested that this area be redesignated to attainment for the 
PM2.5 National Ambient Air Quality Standards. The 
redesignation request and limited maintenance plans satisfy all 
applicable requirements of the Clean Air Act.

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

0
4. The authority citation for part 81 continues to read as follows:

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

Subpart C--Section 107 Attainment Status Designations

0
5. In Sec.  81.327, the table entitled ``Montana--1997 Annual 
PM2.5 NAAQS'' is amended by revising the entry ``Lincoln 
County (part)'' to read as follows:


Sec.  81.327  Montana.

* * * * *

                                        Montana--1997 Annual PM2.5 NAAQS
                                             [Primary and secondary]
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                                                   Designation \a\                        Classification
          Designated area          -----------------------------------------------------------------------------
                                           Date \1\                 Type             Date \2\          Type
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Lincoln County (part).............  August 23, 2023......  Attainment...........
The area bounded by lines from
 Universal Transverse Mercador
 Zone 11 (North American Datum
 1983) coordinates beginning at
 600,000mE, 5,370,000mN east to
 620,000mE, 5370,000mN south to
 620,000mE, 5340,000mN west to
 600,000mE, 5,340,000mN north to
 600,000mE, 5,370,000mN.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is 90 days after January 5, 2005, unless otherwise noted.
\2\ This date is July 2, 2014, unless otherwise noted.

* * * * *
[FR Doc. 2023-15435 Filed 7-21-23; 8:45 am]
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