Approval and Disapproval and Promulgation of Air Quality Implementation Plans; Montana; Revisions to the Administrative Rules of Montana-Air Quality, Subchapter 7 and Other Subchapters, 9834-9843 [2010-4559]
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9834
Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Proposed Rules
Tobacco Tax and Trade Bureau, 1310 G
Street, NW., Suite 200–E, Washington,
DC 20005.
Please submit your comments by the
closing date shown above in this notice.
Your comments must reference Notice
No. 104 and include your name and
mailing address. Your comments also
must be made in English, be legible, and
be written in language acceptable for
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acknowledge receipt of comments, and
we consider all comments as originals.
If you are commenting on behalf of an
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You may also write to the
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The Administrator reserves the right to
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hearing.
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All submitted comments and
attachments are part of the public record
and subject to disclosure. Do not
enclose any material in your comments
that you consider to be confidential or
inappropriate for public disclosure.
Public Disclosure
On the Federal e-rulemaking portal,
Regulations.gov, we will post, and you
may view, copies of this notice, selected
supporting materials, and any electronic
or mailed comments we receive about
this proposal. A direct link to the
Regulations.gov docket containing this
notice and the posted comments
received on it is available on the TTB
Web site at https://www.ttb.gov/wine/
wine_rulemaking.shtml under Notice
No. 104. You may also reach the docket
containing this notice and the posted
comments received on it through the
Regulations.gov search page at https://
www.regulations.gov.
All posted comments will display the
commenter’s name, organization (if
any), city, and State, and, in the case of
mailed comments, all address
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We may omit voluminous attachments
or material that we consider unsuitable
for posting.
You also may view copies of this
notice, all related petitions and other
supporting materials, and any electronic
or mailed comments we receive about
this proposal by appointment at the TTB
Information Resource Center, 1310 G
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Street, NW., Washington, DC 20220.
You may also obtain copies at 20 cents
per 8.5- x 11-inch page. Contact our
information specialist at the above
address or by telephone at 202–453–
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request copies of comments or other
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Regulatory Flexibility Act
We certify that this proposed
regulatory amendment, if adopted,
would not have a significant economic
impact on a substantial number of small
entities. The proposed regulation
imposes no new reporting,
recordkeeping, or other administrative
requirement. Any benefit derived from
the use of a viticultural area name
would be the result of a proprietor’s
efforts and consumer acceptance of
wines from that area. Therefore, no
regulatory flexibility analysis is
required.
Executive Order 12866
This proposed rule is not a significant
regulatory action as defined by
Executive Order 12866. Therefore, it
requires no regulatory assessment.
Drafting Information
N.A. Sutton of the Regulations and
Rulings Division drafted this notice.
Geological Survey topography maps.
They are titled:
*
*
*
*
*
(c) Boundary. The Yamhill-Carlton
viticultural area is located in Yamhill
and Washington Counties, Oregon, and
is entirely within the Willamette Valley
viticultural area. The Yamhill-Carlton
viticultural area is limited to lands at or
above 200 feet in elevation and at or
below 1,000 feet in elevation within its
boundary, which is described as
follows—
*
*
*
*
*
(d) From February 7, 2005, until
[INSERT DATE ONE DAY BEFORE
EFFECTIVE DATE OF THE FINAL
RULE], the name of this viticultural area
was ‘‘Yamhill-Carlton District’’. Effective
[INSERT EFFECTIVE DATE OF THE
FINAL RULE], this viticulture area is
named ‘‘Yamhill-Carlton’’. Existing
certificates of label approval showing
‘‘Yamhill-Carlton District’’ as an
appellation of origin are revoked by
operation of this regulation on [INSERT
DATE 2 YEARS AFTER EFFECTIVE
DATE OF THE FINAL RULE].
Signed: January 29, 2010.
John J. Manfreda,
Administrator.
[FR Doc. 2010–4570 Filed 3–3–10; 8:45 am]
BILLING CODE 4810–31–P
List of Subjects in 27 CFR Part 9
Wine.
Proposed Regulatory Amendment
For the reasons discussed in the
preamble, we propose to amend 27 CFR,
chapter I, part 9, as follows:
PART 9—AMERICAN VITICULTURAL
AREAS
1. The authority citation for part 9
continues to read as follows:
Authority: 27 U.S.C. 205.
Subpart C—Approved American
Viticultural Areas
2. Section 9.183 is amended by
revising the section heading, paragraph
(a) and the introductory text of
paragraphs (b) and (c), and by adding a
new paragraph (d), to read as follows:
§ 9.183
Yamhill-Carlton.
(a) Name. The name of the viticultural
area described in this section is
‘‘Yamhill-Carlton’’. For purposes of part
4 of this chapter, ‘‘Yamhill-Carlton’’ is a
term of viticultural significance.
(b) Approved maps. The appropriate
maps for determining the boundary of
the Yamhill-Carlton viticultural area are
eight 1:24,000 scale United States
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2006–0601; FRL–9122–6]
Approval and Disapproval and
Promulgation of Air Quality
Implementation Plans; Montana;
Revisions to the Administrative Rules
of Montana—Air Quality, Subchapter 7
and Other Subchapters
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY: EPA is proposing to partially
approve and partially disapprove State
Implementation Plan revisions
submitted by the State of Montana on
August 26, 1999, May 28, 2003, March
9, 2004, October 25, 2005, and October
16, 2006. The revisions contain new,
amended, and repealed rules in
Subchapter 7 (Permit, Construction, and
Operation of Air Contaminant Sources)
that pertain to the issuance of Montana
air quality permits, in addition to other
minor administrative changes to other
subchapters of the Administrative Rules
of Montana. The intended effect of this
action is to propose to approve those
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portions of the rules that are approvable
and to propose to disapprove those
portions of the rules that are
inconsistent with the Clean Air Act.
This action is being taken under section
110 of the Clean Air Act.
DATES: Comments must be received on
or before April 5, 2010.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2006–0601, by one of the
following methods:
• https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
• E-mail: videtich.callie@epa.gov and
leone.kevin@epa.gov.
• Fax: (303) 312–6064 (please alert
the individual listed in the FOR FURTHER
INFORMATION CONTACT if you are faxing
comments).
• Mail: Callie A. Videtich, Director,
Air Program, Environmental Protection
Agency (EPA), Region 8, Mailcode 8P–
AR, 1595 Wynkoop Street, Denver,
Colorado 80202–1129.
• Hand Delivery: Callie A. Videtich,
Director, Air Program, Environmental
Protection Agency (EPA), Region 8,
Mailcode 8P–AR, 1595 Wynkoop Street,
Denver, Colorado 80202–1129. Such
deliveries are only accepted Monday
through Friday, 8 a.m. to 4:30 p.m.,
excluding Federal holidays. Special
arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–R08–OAR–2006–
0601. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA, without going through https://
www.regulations.gov, your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
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disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional information
about EPA’s public docket visit the EPA
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
For additional instructions on
submitting comments, go to Section I.
General Information of the
SUPPLEMENTARY INFORMATION section of
this document.
Docket: All documents in the docket
are listed in the https://
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 https://
www.regulations.gov or in hard copy at
the Air Program, Environmental
Protection Agency (EPA), Region 8,
1595 Wynkoop Street, Denver, Colorado
80202–1129. 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 a.m. to 4 p.m., excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Kevin Leone, Air Program, Mailcode
8P–AR, Environmental Protection
Agency, Region 8, 1595 Wynkoop
Street, Denver, Colorado 80202–1129,
(303) 312–6227, or leone.kevin@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Information
II. Summary of SIP Revisions
III. EPA Review and Proposed Action on SIP
Revisions
IV. Summary of EPA’s Proposed Action
V. Statutory and Executive Order Reviews
Definitions
For the purpose of this document, we
are giving meaning to certain words or
initials as follows:
(i) The words or initials Act or CAA
mean or refer to the Clean Air Act,
unless the context indicates otherwise.
(ii) The words EPA, we, us or our
mean or refer to the United States
Environmental Protection Agency.
(iii) The initials SIP mean or refer to
State Implementation Plan.
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(iv) The words State or Montana
mean the State of Montana, unless the
context indicates otherwise.
I. General Information
A. What Should I Consider as I Prepare
My Comments for EPA?
1. Submitting CBI. Do not submit this
information to EPA through https://
www.regulations.gov or e-mail. Clearly
mark the part or all of the information
that you claim to be CBI. For CBI
information in a disk or CD–ROM that
you mail to EPA, mark the outside of the
disk or CD–ROM as CBI and then
identify electronically within the disk or
CD–ROM the specific information that
is claimed as CBI. In addition to one
complete version of the comment that
includes information claimed as CBI, a
copy of the comment that does not
contain the information claimed as CBI
must be submitted for inclusion in the
public docket. Information so marked
will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2.
2. Tips for Preparing Your Comments.
When submitting comments, remember
to:
a. Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register date and page number).
b. Follow directions—The agency may
ask you to respond to specific questions
or organize comments by referencing a
Code of Federal Regulations (CFR) part
or section number.
c. Explain why you agree or disagree;
suggest alternatives and substitute
language for your requested changes.
d. Describe any assumptions and
provide any technical information and/
or data that you used.
e. If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced.
f. Provide specific examples to
illustrate your concerns, and suggest
alternatives.
g. Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats.
h. Make sure to submit your
comments by the comment period
deadline identified.
II. Summary of SIP Revisions
A. August 26, 1999 Submittal
On August 26, 1999, the Governor of
Montana submitted a State
Implementation Plan (SIP) revision
request. The revision contains amended
and repealed rules to various
subchapters in the Administrative Rules
of Montana (ARM) that were adopted by
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the Montana Board of Environmental
Review (Board) on May 14, 1999.
Specific to Subchapter 7 (Permit,
Construction, and Operation of Air
Contaminant Sources), the submittal
revised ARM 17.8.705 and 17.8.733 and
repealed ARM 17.8.708. However, as
indicated below, a May 28, 2003
submittal rescinded the August 26, 1999
revisions to ARM 17.8.705 and 17.8.733.
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B. May 28, 2003 Submittal
On May 28, 2003, the Governor of
Montana submitted a SIP revision
request. The revision contains new,
amended, and repealed rules adopted by
the Board on December 6, 2002. The
new and repealed rules pertain to the
issuance of Montana air quality permits
and are in Subchapter 7 of the ARM.
The amended rules contain references to
the new and repealed rules.
The new rules include: ARM
17.8.740, 17.8.743, 17.8.744, 17.8.745,
17.8.748, 17.8.749, 17.8.752, 17.8.755,
17.8.756, 17.8.759, 17.8.760, 17.8.762,
17.8.763, 17.8.764, 17.8.765, 17.8.767,
and 17.8.770.
The repealed SIP-approved rules
include: ARM 17.8.701, 17.8.702,
17.8.704, 17.8.705, 17.8.706, 17.8.707,
17.8.710, 17.8.715, 17.8.716, 17.8.717,
17.8.720, 17.8.730, 17.8.731, 17.8.732,
17.8.733, and 17.8.734.
The amended SIP-approved rules
include: ARM 17.8.101, 17.8.110,
17.8.309, 17.8.310, 17.8.316, 17.8.818,
17.8.825, 17.8.826, 17.8.901, 17.8.904,
17.8.905, 17.8.906, 17.8.1004, 17.8.1005,
17.8.1106, and 17.8.1109.
The May 28, 2003 submittal also
rescinded outstanding SIP submissions
for rules that amended the following:
ARM 17.8.702, adopted July 20, 2001
and submitted on December 20, 2001; 1
ARM 17.8.705 and 17.8.733, adopted on
May 14, 1999 and submitted on August
26, 1999.
EPA provided written comments to
the State during the rulemaking process
for the revisions submitted to EPA on
May 28, 2003. To review these
comments please see the October 9,
2002 letter from Richard R. Long, EPA,
to the Board included in the docket for
this action. All future references in this
notice to EPA’s comments during the
State rulemaking process refer to this
letter. In addition, the State provided a
response to all comments received
1 Note that the May 28, 2003 submittal requested
rescinding revisions to ARM 17.8.702, adopted on
July 20, 2001 and submitted on December 20, 2001.
EPA had already approved the revisions to ARM
17.8.702 (see 67 FR 55125, 8/28/02, and 40 CFR
52.1370(c)(55)) by the time we had received the
May 28, 2003 letter. However, the May 28, 2003
submittal also requests that all of ARM 17.8.702 be
repealed. We are proposing to remove ARM
17.8.702 from the federally-approved SIP.
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On March 9, 2004, the Governor of
Montana submitted a SIP revision
request. The revision contains amended
rules adopted by the Board on
September 26, 2003. The amended rules
pertain to the issuance of Montana air
quality permits. The following rules
were amended: ARM 17.8.749, 17.8.759,
17.8.763, and 17.8.764.
on March 9, 2004 and October 25, 2005,
are discussed below.
The August 26, 1999 SIP revision
requested that ARM 17.8.708 be
repealed from the SIP. On September
19, 1997, the Governor of Montana
submitted a SIP revision that completely
recodified the State’s air quality rules.
ARM 17.8.708 was one of the rules
recodified. In our August 13, 2001 final
notice (66 FR 42427) on the
recodification, we indicated that we
would act on several provisions,
including ARM 17.8.708, at a later date.
Therefore, ARM 17.8.708 was never
approved into the SIP. (See page 42434
of the August 13, 2001 notice). At this
point there is no ARM 17.8.708 to repeal
as requested by the August 26, 1999
submittal letter.
D. October 25, 2005 Submittal
B. New Subchapter 7 Rules
On October 25, 2005, the Governor of
Montana submitted a SIP revision
request. The revision contains amended
rules adopted by the Board on June 3,
2005. EPA approved all of the October
25, 2005 submittal on July 19, 2006 (71
FR 40922), except for ARM 17.8.767. We
are addressing ARM 17.8.767 in this
document.
1. ARM 17.8.740
during their rulemaking. To review
these responses please see Public
Hearing Notice and Final Notices on
amendments of air quality rules letter
dated December 26, 2002 included as
part of the May 28, 2003 submittal. All
future references in this notice to the
State’s response to EPA’s comments
refer to this letter.
C. March 9, 2004 Submittal
E. October 16, 2006 Submittal
On October 16, 2006, the Governor of
Montana submitted a SIP revision
request. The revision contains an
amended rule for ARM 17.8.743(1) and
new rules codified as ARM 17.8.1601,
17.8.1602, 17.8.1603, 17.8.1604,
17.8.1605, and 17.8.1606, and ARM
17.8.759 adopted by the Board on
December 2, 2005. The submittal also
requested to withdraw ARM
17.8.743(1)(c) from being incorporated
into the SIP. We are addressing ARM
17.8.759 in this document. The revision
to ARM 17.8.743(1) and the new rules
pertain to the regulation of oil and gas
well facilities, and we will address this
revision request in a separate action.
III. EPA Review and Proposed Action
on SIP Revisions
A. Repealed Rules
The State has completely rewritten its
permitting rules in Subchapter 7 of the
ARM. The State has repealed the
existing SIP-approved rules and adopted
new rules. We are proposing to approve
the State’s May 28, 2003 request to
repeal the following rules from the SIP:
ARM 17.8.701, 17.8.702, 17.8.704,
17.8.705, 17.8.706, 17.8.707, 17.8.710,
17.8.715, 17.8.716, 17.8.717, 17.8.720,
17.8.730, 17.8.731, 17.8.732, 17.8.733,
and 17.8.734. Our review and proposed
action on the new rules submitted on
May 28, 2003, with revisions submitted
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Definitions
On May 28, 2003, the State submitted
new section ARM 17.8.740. ARM
17.8.740 contains the definitions
applicable to Subchapter 7. Previously
the definitions were in ARM 17.8.701,
which was repealed with the May 2003
submittal. ARM 17.8.740 contains
definitions for some terms not contained
in ARM 7.8.701, as well as makes minor
modifications to some of the definitions
that were contained in ARM 17.8.701.
Also, two terms in ARM 17.8.701,
‘‘lowest achievable emission rate’’ and
‘‘major emitting facility,’’ are not
contained in ARM 17.8.740.
It is acceptable that the ARM 17.8.740
does not contain definitions for ‘‘lowest
achievable emission rate’’ and ‘‘major
emitting facility.’’ ‘‘Lowest achievable
emission rate’’ is defined at ARM
17.8.901(10) and the State’s rules also
contain a definition of ‘‘major stationary
source’’ at ARM 17.8.801(22) and
17.8.901(12).
Definitions for the following terms are
being added to ARM 17.8.740, which
were not previously in ARM 17.8.701:
day; emitting unit; facility; install or
installation; modify, Montana air quality
permit; and routine maintenance, repair,
or replacement.
We are proposing to approve the
definitions in section ARM 17.8.740,
with the exception of the definitions of
‘‘routine maintenance, repair, or
replacement’’ (RMRR), ‘‘modify,’’
‘‘negligible risk to the public health,
safety, and welfare and to the
environment’’ and ‘‘construct or
construction.’’ We are proposing to
disapprove the definition of ‘‘routine
maintenance, repair, or replacement’’
and ‘‘negligible risk to the public health,
safety, and welfare and to the
environment,’’ and portions of the
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definition of ‘‘construct or construction’’
and we are not taking action on portions
of the definition of ‘‘modify’’ for the
following reasons.
a. ‘‘RMRR’’ EPA has determined that
the definition for RMRR at ARM
17.8.740(14) would be applicable to
major sources, since this definition does
not explicitly limit its application to
true minor sources. The term RMRR is
used in Montana’s Prevention of
Significant Deterioration (PSD) and nonattainment New Source Review (NSR)
regulations (ARM 17.8.801(20)(b)(i) and
17.8.901(11)(b)(i)), but RMRR is not
defined in these subchapters. During the
State’s rulemaking process we provided
comments that expressed our concerns
with the definition of RMRR.2 In
response to our comments, the State
indicated that the definitions section
(that includes the RMRR definition) in
Subchapter 7 (Permit, Construction and
Operation of Air Contaminant Sources)
explicitly states that the definitions
contained in that rule are ‘‘for the
purposes of this subchapter,’’ and
therefore, the definition of ‘‘routine
maintenance, repair, or replacement’’
would not apply to Subchapters 8, 9,
and 10.3 However, EPA interprets ARM
17.8.743 (Montana Air Quality
Permits—When Required) as requiring
all Montana sources (both major and
minor) to comply with the requirements
in Subchapter 7, and that major sources
would also comply with the
requirements in Subchapters 8, 9, or 10
as applicable. Therefore, major sources
and the public may believe the
definition of RMRR in Subchapter 7 is
applicable to the major sources since
there is nothing in subchapters 8, 9, or
10 prohibiting a major source from
using this definition.
Montana’s definition of RMRR allows
associated fixed capital costs less than
50% of the fixed capital cost necessary
to construct a comparable new emitting
unit to be considered RMRR. Montana’s
definition of RMRR is inconsistent with
EPA’s current policy concerning RMRR
at PSD sources. EPA’s position is that a
determination of routine maintenance,
repair, or replacement is a case specific
process that cannot be generally
defined, and takes into consideration
the nature, extent, purpose, frequency
and cost of the work, as well as any
2 See October 9, 2002 letter from Richard R. Long,
EPA, to the Montana Board of Environmental
Review—all future references in this notice to
EPA’s comments during the State rulemaking
process refer to this letter.
3 See Public Hearing Notice and Final Notices on
amendments of air quality rules letter dated
December 26, 2002 included as part of the May 28,
2003 submittal—all future references in this notice
to the State’s response to EPA’s comments refer to
this letter.
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other relevant factors.4 Furthermore, the
State’s rule is less stringent than EPA’s
vacated Routine Equipment
Replacement Provision rule for PSD
sources (68 FR 61248), which had
specified that the capital cost threshold
for routine equipment replacement shall
not exceed 20 percent of the
replacement value of the process (rule
vacated by the Court of Appeals for the
D.C. Circuit, New York v. EPA, 443 F.3d
880 (D.C.Cir.2006).) Based on the above
analysis, we have determined that
Montana’s definition for RMRR at ARM
17.8.740(14) is inconsistent with the
Clean Air Act (CAA) and is not
approvable.
b. ‘‘Modify.’’ We are not taking action
on part of the definition of ‘‘modify.’’
The new definition for ‘‘modify’’ at ARM
17.8.740(8) refers to the ‘‘Exclusion of
De Minimis Changes’’ provision codified
at ARM 17.8.745, which EPA is not
taking action on (see discussion
regarding ARM 17.8.745 below). Since
we are not taking action on ARM
17.8.745, we are proposing to approve
ARM 17.8.740(8) with the exception of
the following phrases: (1) ‘‘Except when
a permit is not required under ARM
17.8.745’’ in ARM 17.8.740(8)(a); and (2)
‘‘except as provided in ARM 17.8.745’’
in ARM 17.8.740(8)(c).
c. ‘‘Negligible risk to the public health,
safety, and welfare and to the
environment.’’ We are proposing to
disapprove the definition of ‘‘negligible
risk to the public health, safety, and
welfare and to the environment’’ in
ARM 17.8.740(10) because, in a March
30, 2006 letter to EPA, the State
rescinded its May 28, 2003 request for
provision ARM 17.8.770 (Additional
Requirements for Incinerators) to be
included in the federally-approved SIP.
ARM 17.8.770 is the only provision in
Subchapter 7 that utilizes this
definition; and therefore, it is not
necessary for it to be incorporated into
the SIP.
Finally, during the State’s rulemaking
process we expressed concerns with the
definition of ‘‘construct or construction’’
in ARM 17.8.740(2). We were concerned
because this definition includes the
phrase ‘‘reasonable period of time for
startup and shakedown.’’ Subchapters 8,
9 and 10 contain their own definitions
addressing construction in ARM
17.8.801(5) and (10) and ARM
17.8.901(3) and (6) for major source
4 See September 9, 1988 Memorandum from Don
R. Clay, Acting Assistant Administrator for Air and
Radiation, to David A. Kee, Director, Air and
Radiation Division, Region V, titled ‘‘Applicability
of Prevention of Significant Deterioration (PSD) and
New Source Performance Standards (NSPS)
Requirements to the Wisconsin Power Company
(WEPCO) Port Washington Life Extension Project.’’
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permitting; however, the addition of the
phrase ‘‘reasonable period of time for
startup and shakedown’’ makes the
definition of ‘‘construct or construction’’
in ARM 17.8.740(2) inconsistent with
the same term used in major source
permitting. Since this phrase also
reduces the stringency of the current SIP
approved regulations, an analysis
should be provided by the State
showing that this new rule will not
interfere with compliance with the
National Ambient Air Quality Standards
(NAAQS) or PSD increments. Section
110(l) of the CAA states that EPA cannot
approve a SIP revision that would
interfere with any applicable
requirement concerning attainment or
reasonable further progress, as defined
in Section 171 of the CAA, or any other
applicable requirement of the CAA.
Montana did not provide any analysis or
demonstration that the definition of
‘‘construct or construction’’ in ARM
17.8.740(2) meets these criteria.
Therefore, we are proposing to approve
the definition of ‘‘construct or
construction’’ in ARM 17.8.740(2) with
the exception of the phrase ‘‘reasonable
period of time for startup and
shakedown.’’
2. ARM 17.8.743 Montana Air Quality
Permits—When Required
On May 28, 2003, the State submitted
new section ARM 17.8.743. ARM
17.8.743(1) describes those sources that
are required to obtain a Montana air
quality permit and ARM 17.8.743(2)—
(5) adds new provisions pertaining to
seasonal construction activities that can
occur prior to receiving a Montana air
quality permit.
ARM 17.8.743(1) provides that any
new or modified facility or emitting unit
that has the potential to emit more than
25 tons per year of any airborne
pollutant, except lead,5 must obtain a
Montana air quality permit except as
provided in ARM 17.8.744 and ARM
17.8.745 before constructing, installing,
modifying or operating. ARM
17.8.431(1)(b) also requires asphalt
concrete plants, mineral crushers, and
mineral screens that have the potential
to emit more than 15 tons per year of
any airborne pollutant, other than lead,
to obtain a Montana air quality permit.
Sources excluded from the above
requirements are those that are
5 Facilities or emitting units that emit airborne
lead must obtain a Montana air quality permit if
they are new and emit greater than five tons per
year of airborne lead, or if they are an existing
facility or emitting unit and a modification results
in an increase of airborne lead by an amount greater
than 0.6 tons per year.
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identified in ARM 17.8.744 and ARM
17.8.745.
ARM 17.8.743(l) is similar to what
was previously required in sections
ARM 17.8.705(1)(l), (m), (n), and (o).
ARM 17.8.705, which was repealed with
the May 28, 2003 submittal, identified
those sources that were not required to
obtain a permit. ARM 17.8.705(1) listed
those sources that were not required to
obtain a permit and included: (l)
Sources and stacks which do not have
the potential to emit more than 25 tons
per years, other than lead; (m) a new
stack or source of airborne lead whose
potential to emit is less than 5 tons per
year; (n) an alteration or modification of
an already constructed stack or other
source of lead contamination which
results in an increase in maximum
potential of the source or stack to emit
airborne lead by an amount less than 0.6
tons per year; and (o) asphalt concrete
plants and mineral crushers which do
not have the potential to emit more than
5 tons per year of any pollutant, other
than lead.
For the most part, the provisions that
were in ARM 17.8.705(1)(l), (m), (n) and
(o) are contained in the ARM
17.8.743(1), except that the permitting
threshold for asphalt concrete plants
and mineral crushers has been changed
from 5 tons per year to 15 tons per year.
During the State’s rulemaking process
we expressed concerns with the new
permit threshold for asphalt concrete
plants and mineral crushers. In its
response to our comments, the State
indicated that it was making the permit
level for this source category consistent
with other permitting thresholds in the
subchapter. Also, the State indicated
that for mineral screen operations the
rule was more stringent since previously
only mineral screens greater than 25
tons per year had to get permits.
Since for asphalt concrete plants and
mineral crushers this revision (ARM
17.8.743(1)(b)) reduces the stringency of
the current SIP approved regulations, an
analysis should be provided by the State
showing that this new rule will not
interfere with compliance with the
NAAQS or PSD increments. Section
110(l) of the CAA states that EPA cannot
approve a SIP revision that would
interfere with any applicable
requirement concerning attainment or
reasonable further progress, as defined
in Section 171 of the CAA, or any other
applicable requirement of the CAA.
Montana did not provide any analysis or
demonstration that the increased permit
threshold, from 5 tons per year to 15
tons per year, for asphalt concrete plants
and mineral crushers meets these
criteria. Montana plans on providing a
110(l) analysis at a later date. At the
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request of the State, we are taking no
action on the phrase ‘‘asphalt concrete
plants, mineral crushers’’ from ARM
17.8.743(1)(b). We are proposing to
approve the remainder of ARM
17.8.743(1)(b), which is ‘‘mineral
screens that have the potential to emit
more than 15 tons per year of any
airborne pollutant, other than lead, that
is regulated under this chapter.’’
ARM 17.8.743(1) also refers to ARM
17.8.745. As indicated below, we are
taking no action on ARM 17.8.745.
Consequently, we are taking no action
on the phrase ‘‘and 17.8.745’’ that is
contained in ARM 17.8.743(1).
As part of the October 16, 2006
submittal, Montana requested to
withdraw the request to include ARM
17.8.743(1)(c) into the SIP as part of the
May 28, 2003 submission. This
provision requires any incinerator to
obtain a Montana air quality permit.
This incinerator specific provision is
not in the currently approved SIP. The
approved SIP treats incinerator sources
under the provision for ‘‘all other
sources and stacks not specifically
excluded, which do not have the
potential to emit more than 25 tons per
year of any pollutant, other than lead’’
(codified at ARM 17.8.743(e)). We also
note that any incinerators in Montana
that are not permitted must meet the SIP
approved provisions in ARM 17.8.316.
Therefore, we are taking no action on
ARM 17.8.743(1)(c) and this section will
not be incorporated into Montana’s SIP.
In addition, the October 16, 2006
submittal requested a revision to ARM
17.8.743(1) to add a reference to a new
rule codified at ARM 17.8.1602. This
revision and the new rule pertain to the
regulation of oil and gas well facilities,
and we will address this revision
request in a separate action.
With the exceptions noted above, we
are proposing to approve the remaining
language in ARM 17.8.743(1).
During the State’s rulemaking process
we expressed concerns with the
provisions in ARM 17.8.743(2)–(5).
However, after further analysis and for
the reasons stated below, we are
proposing to approve ARM 17.8.743(2)–
(5). These provisions allow only limited
site preparation and construction, can
be stopped by the State at any time,
require a permit application
completeness determination from the
State before this type of work can occur,
and exclude sources subject to Federal
requirements (i.e., PSD and synthetic
minors). EPA’s regulations at 40 CFR
51.160 do not require the issuance of a
permit for the construction or
modification of minor sources, but only
that the SIP include a procedure to
prevent the construction of a source or
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modification that would violate the SIP
control strategy or interfere with
attainment or maintenance of the
NAAQS. Provision (2) of the State’s
regulation limits site work prior to
permit issuance to only installing
concrete foundation work, belowground plumbing, installing ductwork,
and other infrastructure and/or
excavation work involving the same. No
construction or installation of emission
units will be allowed under this
provision. Provision (3) indicates that
‘‘Notwithstanding the ability to
undertake the construction activities
described above, the department may
issue a letter instructing the owner or
operator to immediately cease such
activities pending a final determination
on an application if it finds that the
proposed project would result in a
violation of the State Implementation
Plan or would interfere with the
attainment or maintenance of any
Federal or State ambient air quality
standard.’’ Provision (4) indicates that
the State is not obligated to issue an air
quality permit and that an ‘‘owner or
operator who has received a
completeness determination and who
elects to engage in initial construction
activities accepts the regulatory risks of
engaging in such activities.’’ Provision
(5) indicates that ‘‘the provisions of (2)
do not supersede any other local, state,
or federal requirements.’’ The State has
interpreted ARM 17.8.743(5), in its
formal response to EPA’s comments, to
mean that ARM 17.8.743(2) ‘‘does not
allow pre-permit construction if some
other permit or rule prohibits such
activities. For example, if a source needs
a Prevention of Significant Deterioration
(PSD) permit, both federalFederal and
stateState regulations require that the
applicant secure the permit before
undertaking any construction.’’ The
State’s formal response to comments on
this provision also stated that ‘‘nothing
in this rule would supersede these
existing restrictions in other rules. The
applicant would only be able to
undertake limited pre-permit
construction if it did not need a PSD
permit as well.’’
EPA approved minor NSR programs
in several States do not require permits
prior to construction, but instead
require sources to submit a notice and
authorization for sources to begin
construction after a specified time if the
permitting authority does not issue an
order preventing construction. However,
all minor NSR projects above the
permitting thresholds (25 tons per year
for new sources and 15 tons per year for
modifications (not approved into the
SIP)) in Montana will receive a permit.
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These projects go through the required
air quality impact analysis before the
project is approved. Additionally, all
minor NSR permits go through a public
notice and comment period before being
issued.
EPA had commented to the State that
we had concerns that ARM 17.8.743(2)
does not require some type of
administrative approval from the State
prior to allowing pre-permit
construction activities. EPA did not
initially take into account the permit
application completeness determination
from the Montana Department of
Environment Quality (DEQ). After
reviewing the procedure for permit
application completeness
determination, EPA has concluded that
it is an administrative approval which
must be issued by the State prior to the
start of pre-permit construction
activities, ensuring that sources that are
subject to Federal requirements (i.e.,
PSD and synthetic minors) do not begin
any construction prior to permit
issuance. Also, the State clarified in its
response to EPA’s comments that this
pre-permit construction provision is
limited to true minor sources. A true
minor source is not subject to PSD
requirements and is not subject to other
Federal requirements.
As part of our analysis of Montana’s
pre-permit construction provision we
also reviewed recent EPA actions
approving pre-permit construction rules
into other State SIPs. EPA’s July 10,
2006 (71 FR 38773) approval of
Mississippi’s minor source permit
regulations included a new provision
entitled ‘‘Optional Pre-Permit
Construction,’’ which allows
construction to commence on certain
non-major sources and non-major
modifications prior to receiving a final
permit to construct, provided certain
conditions are met. EPA also approved
pre-permit construction rules for the
State of Idaho’s permit to construct
regulations, which were approved into
the Idaho SIP on January 16, 2003 (68
FR 2217). Both of these State provisions
allow complete construction of the
source, including the emission units,
prior to issuance of the permit.
However, these provisions preclude any
actual operation of the new or modified
source before issuance of the final
construction permit. EPA has approved
these provisions because they require
the prior written approval of the State
and have safeguards to ensure that new
major stationary sources and major
modifications do not commence
construction prior to permit issuance.
Montana’s pre-permit construction
provision differs from these other States’
rules in that it allows only limited site
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preparation and construction, which
does not include the emission units, and
does not require the prior written
approval of the State.
As discussed above, Montana’s ARM
17.8.743(2)–(5) is consistent with the
requirements of section 110(a)(2)(C) of
the CAA and Federal regulations found
at 40 CFR 51.160 through 51.164,
including 40 CFR 51.160(b), which
requires States to have legally
enforceable procedures to prevent
construction or modification of a source
if it would violate any SIP control
strategies or interfere with attainment or
maintenance of the NAAQS.
Furthermore, Montana’s rule is
consistent with 40 CFR 51.160(e), which
requires States to identify the basis for
determining which facilities will be
subject to review. Sources in Montana
subject to ARM 17.8.743 must have an
air quality permit prior to construction
or modification of the emission units
and prior to operation. Only limited site
preparation and construction, which
does not include the emission units,
would be allowed at minor sources prior
to issuance of an air quality permit. A
permit application completeness
determination from the Montana
Department of Environmental Quality
(Department) must be made before this
type of work can occur. Additionally,
the Department can require the owner or
operator to immediately cease any prepermit construction activities if it finds
that the proposed project would result
in a violation of the SIP or would
interfere with the attainment or
maintenance of any Federal or State
ambient air quality standard. Finally,
this proposal is consistent with prior
EPA statements.6 Therefore, we are
proposing approval for ARM
17.8.743(2)–(5).
3. ARM 17.8.744 Montana Air Quality
Permits—General Exclusions
On May 28, 2003, the State submitted
new section ARM 17.8.744. This section
describes those sources that are not
required to obtain a Montana air quality
permit. This section is similar to what
previously existed in ARM 17.8.705(1),
except that: (a) Several of the provisions
that were in ARM 17.8.705(1) were
deleted or incorporated into ARM
17.8.743(1), and (b) two provisions were
added (ARM 17.8.744(1)(f) and (k)).
6 NEPA’s October 10, 1978, memorandum from
Edward E. Reich, Director Division of Stationary
Source Enforcement, to Thomas W. Devine, Chief
Air Branch, Region 1, titled ‘‘Source Construction
Prior to Issuance of PSD Permit,’’ discusses
preconstruction activities allowed at a site with
both PSD and non-PSD sources. This memo states
that construction may begin on PSD-exempt
projects before the permit is issued.
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During the State’s rulemaking process
we expressed concerns with the
provisions in ARM 17.8.744(1)(f).
However, after further review, we are
proposing to approve all of ARM
17.8.744 including ARM 17.8.744(1)(f).
ARM 17.8.744(1)(f) is acceptable since
this exclusion is limited to emergency
equipment used only to alleviate
adverse effects on public health or
facility safety. In addition, this
exclusion is limited to only minor
sources, since ARM 17.8.818(1) states
that ‘‘a major stationary source or major
modification exempted from the
requirements of Subchapter 7 under
ARM 17.8.744 or 17.8.745 shall, if
applicable, still be required to obtain a
Montana air quality permit and comply
with all applicable requirements of this
subchapter.’’ Likewise, ARM 17.8.904(1)
and 17.8.1004(1) both indicate ‘‘a major
stationary source or major modification
exempted from the requirements of
Subchapter 7 under ARM 17.8.744 or
17.8.745 * * *, shall, prior to
construction, still be required to obtain
a Montana air quality permit* * *’’
4. ARM 17.8.745 Montana Air Quality
Permits—Exclusion for De Minimis
Changes
On May 28, 2003, the State submitted
new section ARM 17.8.745. This section
describes those situations where a
source is not required to obtain a
Montana air quality permit under ARM
17.8.743 for de minimis changes. With
this provision, Montana has adopted a
15 tons per year potential to emit
increase as a de minimis limit for any
pollutant below which no permit is
required for changes.
During the State’s rulemaking process
we expressed concerns with the de
minimis level specified in this
provision. Since this new section (ARM
17.8.745) reduces the stringency of the
current SIP approved regulations, an
analysis should be provided by the State
showing that this new rule will not
interfere with compliance with the
NAAQS or PSD increments. Section
110(l) of the CAA states that EPA cannot
approve a SIP revision that would
interfere with any applicable
requirement concerning attainment or
reasonable further progress, as defined
in Section 171 of the CAA, or any other
applicable requirement of the CAA.
Montana did not provide any analysis or
demonstration that the new section
(ARM 17.8.745) meets these criteria.
Montana plans on providing a 110(l)
analysis at a later date, as well as a
revision to its 15 tons per year de
minimus limit. At the request of the
State, we are taking no action on
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5. ARM 17.8.748 New or Modified
Emitting Units—Permit Application
Requirements
On May 28, 2003, the State submitted
new section ARM 17.8.748. This section
describes the permit application
requirements and for the most part is
the same as what previously existed in
ARM 17.8.706 with some minor
changes. The last sentence contained in
ARM 17.8.748(1) was originally
contained in ARM 17.8.707(1)(b) and
ARM 17.8.748(7) was originally
contained in ARM 17.8.720(2)(a).
We are proposing to approve all of
ARM 17.8.748.
6. ARM 17.8.749 Conditions for
Issuance or Denial of Permit
On May 28, 2003, the State submitted
new section ARM 17.8.749. This section
describes the conditions for issuance or
denial of a Montana air quality permit.
The provisions in ARM 17.8.749(1), (3),
(4), and (7) are similar to what
previously existed in ARM 17.8.710(1),
(2), (4), and ARM 17.7.730. The
provisions in ARM 17.8.749(2), (5) and
(6) are new provisions.
On March 9, 2004, the State submitted
revisions to ARM 17.8.749(7) pertaining
to how the Department notifies an
applicant when it denies a permit and
advises the applicant of the right to
appeal. The revisions allow the
Department to provide such notice
through the mail.
During the State’s rulemaking process,
we expressed concerns with provisions
ARM 17.8.749(2)—that allow the
department to extend the deadlines
specified in a permit and ARM
17.8.749(5)—that requires ‘‘state-only’’
conditions be identified in the permit,
and specifies these conditions ‘‘are not
intended by the department to be
enforceable under federal law.’’ For
ARM 17.8.749(2) we were concerned
that extended deadlines may conflict
with requirements for sources subject to
PSD. In response to our concerns, the
State indicated that the provisions of
their PSD rules (ARM 17.8.819) meet the
requirements of 40 CFR 52.21(r) and
51.166(j)(4). After further analysis we
are have determined that ARM
17.8.749(2) allows a director’s
discretion, in that it states that ‘‘the
department may extend a deadline
specified in the schedule’’ for permit
conditions to become effective. Based
on this director’s discretion we are
proposing to disapprove ARM
17.8.749(2).
For ARM 17.8.749(5) we asked for a
justification as to why certain permit
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provisions would not warrant Federal
(and citizen) review and enforceability.
In response to our concerns, the State
noted that they ‘‘have adopted certain
requirements that are more stringent
than Federal requirements,’’ ‘‘these rules
are not intended to be part of the SIP,’’
and ‘‘during the permitting process, EPA
and other concerned persons will have
the opportunity to ensure that the
Department correctly applies the stateonly designation.’’ After further analysis
we have determined that ARM
17.8.749(5) will be used to identify
State-only provisions in permits that are
more stringent than Federal
requirements. Therefore, we are
proposing to approve ARM 17.8.749(5).
We are proposing to approve ARM
17.8.749(1), (3), (4), (5), (6) and (8)
submitted on May 28, 2003; and ARM
17.8.749(7) submitted on March 9, 2004.
7. ARM 17.8.752 Emission Control
Requirements
On May 28, 2003, the State submitted
new section ARM 17.8.752. This section
describes the emission control
requirements for a new or modified
facility or emission unit. The provisions
in ARM 17.8.752 are similar to what
previously existed in ARM 17.8.715,
except that the provisions in ARM
17.8.752(1)(a)(i) are new. This new
provision states that Montana’s minor
source Best Available Control
Technology (BACT) requirement is only
triggered for the modified unit at an
existing source (not the entire source).
Federal NSR regulations do not require
BACT for minor sources. Therefore, we
are proposing to approve all of ARM
17.8.752.
8. ARM 17.8.755 Inspection of Permit
On May 28, 2003, the State submitted
new section ARM 17.8.755. This section
indicates that the current Montana air
quality permit must be made available
at the facility or emitting unit unless the
permittee and Department agree on a
different location. This section is similar
to what previously existed in ARM
17.8.716, except that a new phrase was
added indicating that a different
location may be acceptable if mutually
agreeable between the permittee and
department.
We are proposing to approve ARM
17.8.755.
9. ARM 17.8.756 Compliance With
Other Requirements
On May 28, 2003, the State submitted
new section ARM 17.8.756. This section
describes the permittee responsibilities
in complying with other requirements.
ARM 17.8.756(1) is similar to what
previously existed in ARM 17.8.717,
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and ARM 17.8.756(2) and (3) is similar
to what previously existed in ARM
17.8.710(6) and (3), respectively.
We are proposing to approve ARM
17.8.756.
10. ARM 17.8.759 Review of Permit
Applications
On May 28, 2003, the State submitted
new section ARM 17.8.759. This section
describes the Department’s
responsibilities for determining
completeness of the permit application,
for issuing a preliminary completeness
determination, for public notification
and providing the opportunity for
comment, and for issuing a final
decision. Most of this new section is
similar to what previously existed in
ARM 17.8.720(2) and (3).
During the State’s rulemaking process
we expressed concerns with the
timeframe allowed for the public and
EPA to comment on preliminary permit
determinations. On March 9, 2004, the
State submitted revisions to ARM
17.8.759(4). The revisions extend the
date by which comments can be
submitted on the preliminary
determination for certain permit actions
and the timeline for the department to
notify the applicant of approval or
denial of the application. On October
16, 2006, the State submitted additional
revisions to ARM 17.8.759(4), added a
new 17.8.759(5), and renumbered the
existing paragraph 17.8.759(5) to (6).
The new 17.8.759(5) specifies, in part,
that ‘‘the department may, on its own
action, or at the request of the applicant
or member of the public, extend by 15
days the period within which public
comments may be submitted as
described in (4)(b)(ii) and the date for
issuing a final decision on a permit
application.’’ After further analysis, we
no longer have concerns with this
provision because the Department now
has an opportunity to extend by 15 days
the period in which public comments
may be submitted either on its own, or
at the request of an external party. This
would minimize the time crunch for
reviewing draft permits.
We are proposing to approve ARM
17.8.759(1) through (3), submitted on
May 28, 2003; and ARM 17.8.759(4), (5),
and (6) submitted on October 16, 2006.
11. ARM 17.8.760 Additional Review
of Permit Applications
On May 28, 2003, the State submitted
new section ARM 17.8.760. This section
describes additional review
requirements for applications subject to
the Montana Environmental Policy Act
and the Major Facility Siting Act. This
section is similar to what previously
existed in ARM 17.8.720(1) and (4).
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We are proposing to approve ARM
17.8.760.
12. ARM 17.8.762
Duration of Permit
On May 28, 2003, that State submitted
new section ARM 17.8.762. This section
describes the conditions that affect the
duration of a permit. This section is
similar to what previously existed in
ARM 17.8.731. Provision ARM
17.8.762(2) specifies that a permit will
expire unless construction or
installation is commenced within the
time specified in the permit, which may
not be less than one year or more than
three years after the permit is issued.
The current SIP-approved provision in
ARM 17.8.731 does not specify a
maximum time period for permit
expiration.
During the State’s rulemaking process,
we expressed concerns with the permit
expiration timelines in ARM
17.8.762(2). We were concerned that
extended deadlines may conflict with
requirements for sources subject to PSD.
In response to our concerns, the State
indicated that a provision in their PSD
rules (ARM 17.8.819) met the
requirements of 40 CFR 52.21(r)(2) and
51.166(j)(4). The State further indicated
that this rule ‘‘will not replace the PSD
requirements for PSD sources (i.e., the
18-month limit applies to PSD sources,
but not to non-PSD sources).’’ Despite
the State’s assertion, we note that ARM
17.8.819 does not meet the Federal PSD
requirements of 40 CFR 52.21(r)(2),
which specifies that ‘‘approval to
construct shall become invalid if
construction is not commenced within
18 months after receipt of such
approval.’’ 40 CFR 52.21 specifies the
PSD requirements for areas that are not
covered by a federally approved PSD
SIP.
However, the PSD requirements for
SIP-approved States, such as Montana,
contained in 40 CFR 51.166 do not have
an ‘‘18-month’’ provision analogous to
40 CFR 52.21(r)(2). ARM 17.8.819 is
consistent with the ‘‘18-month phased
construction project’’ provision in
51.166(j)(4). Therefore, ARM 17.8.762(2)
is consistent with the Federal PSD rules
for SIP-approved States. We are
proposing to approve ARM 17.8.762.
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13. ARM 17.8.763
Permit
Revocation of
On May 28, 2003, the State submitted
new section ARM 17.8.763. This section
describes the reasons why the
Department may revoke a Montana air
quality permit, the process the
Department must follow when revoking
a permit, and the ability of the permittee
to request a hearing before the Board.
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This section is similar to what
previously existed in ARM 17.8.732.
During the State’s rulemaking process,
we expressed concerns with the
provisions in ARM 17.8.763(1) in that
applicable provisions or the permit (e.g.,
major source requirements) may be
inadvertently revoked at the request of
the permittee. In response to our
concerns, the State indicated that while
some portions of a permit may be
revoked, the permit as a whole must
still meet any underlying applicable
regulations. After further analysis, we
no longer have concerns with these
provisions because the State does not
intend to revoke any applicable
regulations, only minor administrative
changes.
On March 9, 2004, the State submitted
revisions to ARM 17.8.763(2) and (3)
pertaining to how the Department
notifies an applicant when it revokes a
permit or a portion of a permit. The
revisions allow the Department to
provide such notice through the mail.
We are proposing to approve ARM
17.8.763 (1) and (4), submitted on May
28, 2003; and ARM 17.8.763(2) and (3),
submitted on March 9, 2004.
14. ARM 17.8.764 Administrative
Amendment to Permit
On May 28, 2003, the State submitted
new section AMR 17.8.764. This section
describes how the Department may
make administrative amendments to a
Montana air quality permit, the process
the Department must follow when
making administrative amendments to a
permit, and the ability of the permittee
to request a hearing before the Board of.
This section is similar to what
previously existed in ARM 17.8.733,
except that ARM 17.8.764(1)(c) is a new
provision.
On March 9, 2004, the State submitted
revisions to ARM 17.8.764(2) and (3)
pertaining to how the Department
notifies an applicant when it proposes
administrative amendments to a permit.
The revisions allow the Department to
provide such notice through the mail.
During the State’s rulemaking process
we raised concerns that some
administrative amendments should
receive public review even though there
might not be an increase in emissions.
In response to our concerns, the State
indicated that the current SIP-approved
rule contains the same provision. After
further analysis, we have determined
that new section ARM 17.8.764 is
consistent with the existing SIPapproved ARM 17.8.733.
We are proposing to approve ARM
17.8.764(1) (except as noted below) and
(4), submitted on May 28, 2003; and
ARM 17.8.764(2) and (3) submitted on
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9841
March 9, 2004. As indicated earlier, we
are taking no action on ARM 17.8.745.
Consequently, we are taking no action
on the phrase ‘‘the emission increase
meets the criteria in ARM 17.8.745 for
a de minimis change not requiring a
permit,’’ that is contained in ARM
17.8.764(1)(b).
15. ARM 17.8.765 Transfer of Permit
On May 28, 2003, the State submitted
new section ARM 17.8.765. This section
describes the requirements for
transferring a Montana air quality
permit from one location to another, and
from one owner or operator to another.
This section is similar to what
previously existed in ARM 17.8.734,
except that ARM 17.8.765(3) revises
what was in ARM 17.8.734(3). The main
difference is that the prior rule required
action by the Department to approve or
disapprove the permit transfer and the
new rule indicates that the transfer is
deemed approved if the Department
does not act within 30 days of receipt
of the notice.
During the State’s rulemaking process
we expressed concerns with the
provisions in ARM 17.8.765(3) in that a
source may inappropriately locate in an
area and jeopardize attainment of the
NAAQS and the permit transfer would
be deemed approved if the Department
does not act within 30 days. In its
response to our concerns, the State
indicated that permits for portable
sources are written in such a manner as
to comply with applicable requirements
regardless of location of the source.
Consequently, we are proposing to
approve all of ARM 17.8.765.
16. ARM 17.8.767 Incorporation by
Reference
On May 28, 2003, the State submitted
new section ARM 17.8.767. This section
adopts and incorporates by reference
various documents and indicates where
these documents are available. This
section is similar to what previously
existed in ARM 17.8.702.
On October 25, 2005, the State
submitted revisions to ARM 17.8.767.
This revision deletes the incorporation
by reference (IBR) of 40 CFR 52.21
(Prevention of significant deterioration
of air quality) in ARM 17.8.767(1)(d)
and modifies the addresses where
various documents can be obtained in
ARM 17.8.767(2), (3) and (4). 40 CFR
52.21 specifies the PSD requirements for
areas that are not covered by a federally
approved PSD SIP. Since Subchapter 7
contains the requirements for the
permitting, construction, and operation
of all air contaminant sources and not
just PSD sources, this IBR of 40 CFR
52.21 is not necessary. Subchapter 8
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contains Montana’s SIP approved PSD
rules.
We are proposing to approve ARM
17.8.767(1)(a) through (c), submitted on
May 28, 2003; and ARM 17.8.767(1)(d)
through (g) and 17.8.767(2), (3) and (4)
submitted on October 25, 2005.
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17. ARM 17.8.770 Additional
Requirements for Incinerators
On May 28, 2003, the State submitted
new section ARM 17.8.770. This section
discusses additional requirements an
incineration facility must meet for a
Montana air quality permit. In the prior
codification of Subchapter 7, this
section had not been incorporated into
the SIP. On March 30, 2006, the
Department requested to withdraw the
request to include ARM 17.8.770 into
the SIP as part of the May 28, 2003
submission. Consequently, we are
taking no action on ARM 17.8.770, and
this section will not be incorporated
into Montana’s SIP.
C. Revisions to Other Subchapters
On May 28, 2003, the State submitted
revisions to other subchapters of the
ARM. Because the State repealed, in
Subchapter 7, various rules and added
new rules in their place, the crossreferences in other subchapters are
being revised. In addition, the previous
Subchapter 7 referred to ‘‘air quality
preconstruction permits’’ whereas the
new Subchapter 7 refers to ‘‘Montana air
quality permits.’’ In other subchapters,
the phrase ‘‘air quality preconstruction
permits’’ is being replaced with
‘‘Montana air quality permits.’’ Finally,
new rules are being added and minor
administrative changes are occurring in
other subchapters.
EPA is proposing to approve revisions
to the following sections submitted on
May 28, 2003: ARM 17.8.101(4);
7.8.110(7), (8), and (9); 17.8.818(1);
17.8.825(3); 17.8.826(1) and (2);
17.8.904(1) and (2); 17.8.905(1) and (4);
17.8.906; 17.8.1004; 17.8.1005(1), (2),
and (5); 17.8.1106; and 17.8.1109.
On May 28, 2003, the State submitted
revisions to ARM 17.8.309(5)(b) and
17.8.310(3)(e). We previously
disapproved the provisions in ARM
17.8.309(5)(b) and 17.8.310(3)(e) on
January 24, 2006 (see 40 CFR
52.1384(a)). Therefore, we are proposing
to not act on the revisions to these same
sections submitted on May 28, 2003.
On May 28, 2003, the State submitted
revisions to ARM 17.8.316(6). This rule
pertains to the regulation of incinerators
and we will address this revision in a
separate action with other revisions to
ARM 17.8.316 submitted previously.
We have previously approved changes
to ARM 17.8.901(14) that incorporate
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the changes to ARM 17.8.901(14)(e)(iii)
submitted on May 28, 2003 (see January
24, 2006 (71 FR 3776) action). Since we
have already approved these revisions
into the SIP we are not taking action on
them in this document.
On October 16, 2006, the State
submitted a revision to ARM 17.8.743(1)
and new rules codified at ARM
17.8.1601, 17.8.1602, 17.8.1603,
17.8.1604, 17.8.1605, and 17.8.1606.
These rules pertain to the regulation of
oil and gas well facilities, and we will
address this revision request in a
separate action.
IV. Summary of EPA’s Proposed SIP
Action
We are proposing to approve the
removal of the following provisions
from the federally- approved SIP: ARM
17.8.701, 17.8.702, 17.8.704, 17.8.705,
17.8.706, 17.8.707, 17.8.710, 17.8.715,
17.8.716, 17.8.717, 17.8.720, 17.8.730,
17.8.731, 17.8.732, 17.8.733, and
17.8.734.
We are proposing to approve the
following new Subchapter 7 provisions
into the federally-approved SIP: ARM
17.8.740 (except 17.8.740(10) and (14)
and the following phrases in
17.8.740(8)(a) and (c), respectively, (1)
‘‘except when a permit is not required
under ARM 17.8.745;’’ and (2) ‘‘except as
provided in ARM 17.8.745’’ and the
phrase ‘‘reasonable period of time for
startup and shutdown’’ in ARM
17.8.740(2)), submitted on May 28,
2003; 17.8.743 (except the phrases
‘‘asphalt concrete plants, mineral
crushers’’ in 17.8.743(1)(b) ‘‘and
17.8.745’’ in 17.8.743(1), and
17.8.743(1)(c)), submitted on May 28,
2003; 17.8.744 and 17.8.748, submitted
on May 28, 2003; 17.8.749(1), (3), (4),
(5), (6), and (8), submitted on May 28,
2003; 17.8.749(7), submitted on March
9, 2004; 17.8.752, 17.8.755, and
17.8.756, submitted on May 28, 2003;
17.8.759(1) through (3), submitted on
May 28, 2003; 17.8.759(4) through (6),
submitted on October 16, 2006; 17.8.760
and 17.8.762, submitted on May 28,
2003; 17.8.763(1) and (4), submitted on
May 28, 2003; 17.8.763(2) and (3),
submitted on March 9, 2004; 17.8.764(1)
(except the phrase ‘‘the emission
increase meets the criteria in ARM
17.8.745 for a de minimis change not
requiring a permit’’ in 17.8.764(1)(b))
and (4), submitted on May 28, 2003;
17.8.764(2) and (3), submitted on March
9, 2004; 17.8.765, submitted on May 28,
2003; 17.8.767(1)(a) through (c),
submitted on May 28, 2003; and
17.8.767(1)(d) through (g), (2), (3), and
(4), submitted on October 25, 2005.
We are proposing to disapprove the
following new Subchapter 7 provisions:
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Sfmt 4702
ARM 17.8.749(2), ARM 17.8.740(10),
17.8.740(14); and portions of
17.8.740(2).
We are proposing to approve revisions
to the following sections of other
subchapters submitted on May 28, 2003:
ARM 17.8.101(4); 17.8.110(7), (8), and
(9); 17.8.818(1); 17.8.825(3); 17.8.826(1)
and (2); 17.8.904(1) and (2); 17.8.905(1)
and (4); 17.8.906; 17.8.1004;
17.8.1005(1), (2), and (5); 17.8.1106; and
17.8.1109.
We are not acting, at the request of the
State, on the following provisions in
Subchapter 7: ARM 17.8.743(1)(c) and
ARM 17.8.770, the phrase ‘‘asphalt
concrete plants, mineral crushers’’ in
ARM 17.8.743(1)(b) and ARM 17.8.745
submitted on May 28, 2003.
We are not acting on the following
provisions of other subchapters: The
following phrases in 17.8.740(8)(a) and
(c), respectively, (1) ‘‘except when a
permit is not required under ARM
17.8.745’’ and (2) ‘‘except as provided in
ARM 17.8.745,’’ submitted on May 28,
2003; ARM 17.8.309(5)(b),
17.8.310(3)(e), 17.8.316(6), and
17.8.901(14)(3)(iii), submitted on May
28, 2003; the phrase ‘‘and 17.8.745’’ in
ARM 17.8.743(1), submitted on May 28,
2003; ARM 17.8.749(2) submitted on
May 28, 2003; and the phrase ‘‘the
emission increase meets the criteria in
ARM 17.8.745 for a de minimis change
not requiring a permit,’’ in ARM
17.8.764(1)(b), submitted on May 28,
2003; and ARM 17.8.743(1), 17.8.1601,
17.8.1602, 17.8.1603, 17.8.1604,
17.8.1605, and 17.8.1606, submitted on
October 16, 2006.
V. Statutory and Executive Order
Reviews
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, EPA’s role is to approve
State choices, provided that they meet
the criteria of the Clean Air Act.
Accordingly, this proposed 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 Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
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• 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 Clean Air Act;
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, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the State, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
ACTION:
9843
Proposed rule.
SUMMARY: The Comprehensive
Environmental Response,
Compensation, and Liability Act
List of Subjects in 40 CFR Part 52
(‘‘CERCLA’’ or ‘‘the Act’’), as amended,
Environmental protection, Air
requires that the National Oil and
pollution control, Carbon monoxide,
Hazardous Substances Pollution
Intergovernmental relations, Lead,
Contingency Plan (‘‘NCP’’) include a list
Nitrogen dioxide, Ozone, Particulate
of national priorities among the known
matter, Reporting and recordkeeping
releases or threatened releases of
requirements, Sulfur oxides, Volatile
hazardous substances, pollutants, or
organic compounds, Incorporation by
contaminants throughout the United
reference.
States. The National Priorities List
Authority: 42 U.S.C. 7401 et seq.
(‘‘NPL’’) constitutes this list. The NPL is
Dated: February 3, 2010.
intended primarily to guide the
Carol Rushin,
Environmental Protection Agency
Acting Regional Administrator, Region 8.
(‘‘EPA’’ or ‘‘the Agency’’) in determining
[FR Doc. 2010–4559 Filed 3–3–10; 8:45 am]
which sites warrant further
investigation. These further
BILLING CODE 6560–50–P
investigations will allow EPA to assess
the nature and extent of public health
ENVIRONMENTAL PROTECTION
and environmental risks associated with
AGENCY
the site and to determine what CERCLAfinanced remedial action(s), if any, may
40 CFR Part 300
be appropriate. This rule proposes to
[EPA–HQ–SFUND–2010–0068, EPA–HQ–
add eight sites to the General Superfund
SFUND–2010–0069, EPA–HQ–SFUND–2010– section of the NPL.
0070, EPA–HQ–SFUND–2010–0072, EPA–
HQ–SFUND–2010–0073, EPA–HQ–SFUND–
2010–0074, EPA–HQ–SFUND–2010–0075,
EPA–HQ–SFUND–2010–0076; FRL–9120–6]
RIN 2050–AD75
National Priorities List, Proposed Rule
No. 52
DATES: Comments regarding any of these
proposed listings must be submitted
(postmarked) on or before May 3, 2010.
ADDRESSES: Identify the appropriate
Docket Number from the table below.
AGENCY: Environmental Protection
Agency.
DOCKET IDENTIFICATION NUMBERS BY SITE
City/County, State
Sanford Dry Cleaners .........................................
St. Clair Shores Drain ........................................
Vienna Wells ......................................................
ACM Smelter and Refinery ................................
Wright Chemical Corporation .............................
Black River PCBs ...............................................
Dewey Loeffel Landfill ........................................
Smokey Mountain Smelters ...............................
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Site name
Sanford, FL ......................................................
St. Clair Shores, MI .........................................
Vienna, MO ......................................................
Cascade County, MT .......................................
Riegelwood, NC ...............................................
Jefferson County, NY .......................................
Nassau, NY ......................................................
Knox County, TN .............................................
Submit your comments, identified by
the appropriate Docket number, by one
of the following methods:
• https://www.regulations.gov: Follow
the online instructions for submitting
comments.
• E-mail: superfund.docket@epa.gov.
• Mail: Mail comments (no facsimiles
or tapes) to Docket Coordinator,
Headquarters; U.S. Environmental
Protection Agency; CERCLA Docket
Office; (Mail Code 5305T); 1200
Pennsylvania Avenue, NW.;
Washington, DC 20460
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16:36 Mar 03, 2010
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Docket ID No.
• Hand Delivery or Express Mail:
Send comments (no facsimiles or tapes)
to Docket Coordinator, Headquarters;
U.S. Environmental Protection Agency;
CERCLA Docket Office; 1301
Constitution Avenue, NW.; EPA West,
Room 3334, Washington, DC 20004.
Such deliveries are only accepted
during the Docket’s normal hours of
operation (8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding
Federal holidays).
Instructions: Direct your comments to
the appropriate Docket number (see
table above). EPA’s policy is that all
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EPA–HQ–SFUND–2010–0068.
EPA–HQ–SFUND–2010–0069.
EPA–HQ–SFUND–2010–0070.
EPA–HQ–SFUND–2010–0072.
EPA–HQ–SFUND–2010–0073.
EPA–HQ–SFUND–2010–0074.
EPA–HQ–SFUND–2010–0075.
EPA–HQ–SFUND–2010–0076.
comments received will be included in
the public Docket without change and
may be made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system; that
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]]>Agencies
[Federal Register Volume 75, Number 42 (Thursday, March 4, 2010)]
[Proposed Rules]
[Pages 9834-9843]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-4559]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2006-0601; FRL-9122-6]
Approval and Disapproval and Promulgation of Air Quality
Implementation Plans; Montana; Revisions to the Administrative Rules of
Montana--Air Quality, Subchapter 7 and Other Subchapters
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to partially approve and partially disapprove
State Implementation Plan revisions submitted by the State of Montana
on August 26, 1999, May 28, 2003, March 9, 2004, October 25, 2005, and
October 16, 2006. The revisions contain new, amended, and repealed
rules in Subchapter 7 (Permit, Construction, and Operation of Air
Contaminant Sources) that pertain to the issuance of Montana air
quality permits, in addition to other minor administrative changes to
other subchapters of the Administrative Rules of Montana. The intended
effect of this action is to propose to approve those
[[Page 9835]]
portions of the rules that are approvable and to propose to disapprove
those portions of the rules that are inconsistent with the Clean Air
Act. This action is being taken under section 110 of the Clean Air Act.
DATES: Comments must be received on or before April 5, 2010.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2006-0601, by one of the following methods:
https://www.regulations.gov. Follow the on-line
instructions for submitting comments.
E-mail: videtich.callie@epa.gov and leone.kevin@epa.gov.
Fax: (303) 312-6064 (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
Mail: Callie A. Videtich, Director, Air Program,
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129.
Hand Delivery: Callie A. Videtich, Director, Air Program,
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only
accepted Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal
holidays. Special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2006-0601. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through https://www.regulations.gov or e-mail. The https://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA, without
going through https://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting
comments, go to Section I. General Information of the SUPPLEMENTARY
INFORMATION section of this document.
Docket: All documents in the docket are listed in the https://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 https://www.regulations.gov or in hard copy at the Air Program,
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129. 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 a.m. to 4 p.m., excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air Program, Mailcode 8P-
AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129, (303) 312-6227, or leone.kevin@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Information
II. Summary of SIP Revisions
III. EPA Review and Proposed Action on SIP Revisions
IV. Summary of EPA's Proposed Action
V. Statutory and Executive Order Reviews
Definitions
For the purpose of this document, we are giving meaning to certain
words or initials as follows:
(i) The words or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
(ii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
(iii) The initials SIP mean or refer to State Implementation Plan.
(iv) The words State or Montana mean the State of Montana, unless
the context indicates otherwise.
I. General Information
A. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
https://www.regulations.gov or e-mail. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information in a disk
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM
as CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
a. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
b. Follow directions--The agency may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
c. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
d. Describe any assumptions and provide any technical information
and/or data that you used.
e. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
f. Provide specific examples to illustrate your concerns, and
suggest alternatives.
g. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
h. Make sure to submit your comments by the comment period deadline
identified.
II. Summary of SIP Revisions
A. August 26, 1999 Submittal
On August 26, 1999, the Governor of Montana submitted a State
Implementation Plan (SIP) revision request. The revision contains
amended and repealed rules to various subchapters in the Administrative
Rules of Montana (ARM) that were adopted by
[[Page 9836]]
the Montana Board of Environmental Review (Board) on May 14, 1999.
Specific to Subchapter 7 (Permit, Construction, and Operation of Air
Contaminant Sources), the submittal revised ARM 17.8.705 and 17.8.733
and repealed ARM 17.8.708. However, as indicated below, a May 28, 2003
submittal rescinded the August 26, 1999 revisions to ARM 17.8.705 and
17.8.733.
B. May 28, 2003 Submittal
On May 28, 2003, the Governor of Montana submitted a SIP revision
request. The revision contains new, amended, and repealed rules adopted
by the Board on December 6, 2002. The new and repealed rules pertain to
the issuance of Montana air quality permits and are in Subchapter 7 of
the ARM. The amended rules contain references to the new and repealed
rules.
The new rules include: ARM 17.8.740, 17.8.743, 17.8.744, 17.8.745,
17.8.748, 17.8.749, 17.8.752, 17.8.755, 17.8.756, 17.8.759, 17.8.760,
17.8.762, 17.8.763, 17.8.764, 17.8.765, 17.8.767, and 17.8.770.
The repealed SIP-approved rules include: ARM 17.8.701, 17.8.702,
17.8.704, 17.8.705, 17.8.706, 17.8.707, 17.8.710, 17.8.715, 17.8.716,
17.8.717, 17.8.720, 17.8.730, 17.8.731, 17.8.732, 17.8.733, and
17.8.734.
The amended SIP-approved rules include: ARM 17.8.101, 17.8.110,
17.8.309, 17.8.310, 17.8.316, 17.8.818, 17.8.825, 17.8.826, 17.8.901,
17.8.904, 17.8.905, 17.8.906, 17.8.1004, 17.8.1005, 17.8.1106, and
17.8.1109.
The May 28, 2003 submittal also rescinded outstanding SIP
submissions for rules that amended the following: ARM 17.8.702, adopted
July 20, 2001 and submitted on December 20, 2001; \1\ ARM 17.8.705 and
17.8.733, adopted on May 14, 1999 and submitted on August 26, 1999.
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\1\ Note that the May 28, 2003 submittal requested rescinding
revisions to ARM 17.8.702, adopted on July 20, 2001 and submitted on
December 20, 2001. EPA had already approved the revisions to ARM
17.8.702 (see 67 FR 55125, 8/28/02, and 40 CFR 52.1370(c)(55)) by
the time we had received the May 28, 2003 letter. However, the May
28, 2003 submittal also requests that all of ARM 17.8.702 be
repealed. We are proposing to remove ARM 17.8.702 from the
federally-approved SIP.
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EPA provided written comments to the State during the rulemaking
process for the revisions submitted to EPA on May 28, 2003. To review
these comments please see the October 9, 2002 letter from Richard R.
Long, EPA, to the Board included in the docket for this action. All
future references in this notice to EPA's comments during the State
rulemaking process refer to this letter. In addition, the State
provided a response to all comments received during their rulemaking.
To review these responses please see Public Hearing Notice and Final
Notices on amendments of air quality rules letter dated December 26,
2002 included as part of the May 28, 2003 submittal. All future
references in this notice to the State's response to EPA's comments
refer to this letter.
C. March 9, 2004 Submittal
On March 9, 2004, the Governor of Montana submitted a SIP revision
request. The revision contains amended rules adopted by the Board on
September 26, 2003. The amended rules pertain to the issuance of
Montana air quality permits. The following rules were amended: ARM
17.8.749, 17.8.759, 17.8.763, and 17.8.764.
D. October 25, 2005 Submittal
On October 25, 2005, the Governor of Montana submitted a SIP
revision request. The revision contains amended rules adopted by the
Board on June 3, 2005. EPA approved all of the October 25, 2005
submittal on July 19, 2006 (71 FR 40922), except for ARM 17.8.767. We
are addressing ARM 17.8.767 in this document.
E. October 16, 2006 Submittal
On October 16, 2006, the Governor of Montana submitted a SIP
revision request. The revision contains an amended rule for ARM
17.8.743(1) and new rules codified as ARM 17.8.1601, 17.8.1602,
17.8.1603, 17.8.1604, 17.8.1605, and 17.8.1606, and ARM 17.8.759
adopted by the Board on December 2, 2005. The submittal also requested
to withdraw ARM 17.8.743(1)(c) from being incorporated into the SIP. We
are addressing ARM 17.8.759 in this document. The revision to ARM
17.8.743(1) and the new rules pertain to the regulation of oil and gas
well facilities, and we will address this revision request in a
separate action.
III. EPA Review and Proposed Action on SIP Revisions
A. Repealed Rules
The State has completely rewritten its permitting rules in
Subchapter 7 of the ARM. The State has repealed the existing SIP-
approved rules and adopted new rules. We are proposing to approve the
State's May 28, 2003 request to repeal the following rules from the
SIP: ARM 17.8.701, 17.8.702, 17.8.704, 17.8.705, 17.8.706, 17.8.707,
17.8.710, 17.8.715, 17.8.716, 17.8.717, 17.8.720, 17.8.730, 17.8.731,
17.8.732, 17.8.733, and 17.8.734. Our review and proposed action on the
new rules submitted on May 28, 2003, with revisions submitted on March
9, 2004 and October 25, 2005, are discussed below.
The August 26, 1999 SIP revision requested that ARM 17.8.708 be
repealed from the SIP. On September 19, 1997, the Governor of Montana
submitted a SIP revision that completely recodified the State's air
quality rules. ARM 17.8.708 was one of the rules recodified. In our
August 13, 2001 final notice (66 FR 42427) on the recodification, we
indicated that we would act on several provisions, including ARM
17.8.708, at a later date. Therefore, ARM 17.8.708 was never approved
into the SIP. (See page 42434 of the August 13, 2001 notice). At this
point there is no ARM 17.8.708 to repeal as requested by the August 26,
1999 submittal letter.
B. New Subchapter 7 Rules
1. ARM 17.8.740 Definitions
On May 28, 2003, the State submitted new section ARM 17.8.740. ARM
17.8.740 contains the definitions applicable to Subchapter 7.
Previously the definitions were in ARM 17.8.701, which was repealed
with the May 2003 submittal. ARM 17.8.740 contains definitions for some
terms not contained in ARM 7.8.701, as well as makes minor
modifications to some of the definitions that were contained in ARM
17.8.701. Also, two terms in ARM 17.8.701, ``lowest achievable emission
rate'' and ``major emitting facility,'' are not contained in ARM
17.8.740.
It is acceptable that the ARM 17.8.740 does not contain definitions
for ``lowest achievable emission rate'' and ``major emitting
facility.'' ``Lowest achievable emission rate'' is defined at ARM
17.8.901(10) and the State's rules also contain a definition of ``major
stationary source'' at ARM 17.8.801(22) and 17.8.901(12).
Definitions for the following terms are being added to ARM
17.8.740, which were not previously in ARM 17.8.701: day; emitting
unit; facility; install or installation; modify, Montana air quality
permit; and routine maintenance, repair, or replacement.
We are proposing to approve the definitions in section ARM
17.8.740, with the exception of the definitions of ``routine
maintenance, repair, or replacement'' (RMRR), ``modify,'' ``negligible
risk to the public health, safety, and welfare and to the environment''
and ``construct or construction.'' We are proposing to disapprove the
definition of ``routine maintenance, repair, or replacement'' and
``negligible risk to the public health, safety, and welfare and to the
environment,'' and portions of the
[[Page 9837]]
definition of ``construct or construction'' and we are not taking
action on portions of the definition of ``modify'' for the following
reasons.
a. ``RMRR'' EPA has determined that the definition for RMRR at ARM
17.8.740(14) would be applicable to major sources, since this
definition does not explicitly limit its application to true minor
sources. The term RMRR is used in Montana's Prevention of Significant
Deterioration (PSD) and non-attainment New Source Review (NSR)
regulations (ARM 17.8.801(20)(b)(i) and 17.8.901(11)(b)(i)), but RMRR
is not defined in these subchapters. During the State's rulemaking
process we provided comments that expressed our concerns with the
definition of RMRR.\2\ In response to our comments, the State indicated
that the definitions section (that includes the RMRR definition) in
Subchapter 7 (Permit, Construction and Operation of Air Contaminant
Sources) explicitly states that the definitions contained in that rule
are ``for the purposes of this subchapter,'' and therefore, the
definition of ``routine maintenance, repair, or replacement'' would not
apply to Subchapters 8, 9, and 10.\3\ However, EPA interprets ARM
17.8.743 (Montana Air Quality Permits--When Required) as requiring all
Montana sources (both major and minor) to comply with the requirements
in Subchapter 7, and that major sources would also comply with the
requirements in Subchapters 8, 9, or 10 as applicable. Therefore, major
sources and the public may believe the definition of RMRR in Subchapter
7 is applicable to the major sources since there is nothing in
subchapters 8, 9, or 10 prohibiting a major source from using this
definition.
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\2\ See October 9, 2002 letter from Richard R. Long, EPA, to the
Montana Board of Environmental Review--all future references in this
notice to EPA's comments during the State rulemaking process refer
to this letter.
\3\ See Public Hearing Notice and Final Notices on amendments of
air quality rules letter dated December 26, 2002 included as part of
the May 28, 2003 submittal--all future references in this notice to
the State's response to EPA's comments refer to this letter.
---------------------------------------------------------------------------
Montana's definition of RMRR allows associated fixed capital costs
less than 50% of the fixed capital cost necessary to construct a
comparable new emitting unit to be considered RMRR. Montana's
definition of RMRR is inconsistent with EPA's current policy concerning
RMRR at PSD sources. EPA's position is that a determination of routine
maintenance, repair, or replacement is a case specific process that
cannot be generally defined, and takes into consideration the nature,
extent, purpose, frequency and cost of the work, as well as any other
relevant factors.\4\ Furthermore, the State's rule is less stringent
than EPA's vacated Routine Equipment Replacement Provision rule for PSD
sources (68 FR 61248), which had specified that the capital cost
threshold for routine equipment replacement shall not exceed 20 percent
of the replacement value of the process (rule vacated by the Court of
Appeals for the D.C. Circuit, New York v. EPA, 443 F.3d 880
(D.C.Cir.2006).) Based on the above analysis, we have determined that
Montana's definition for RMRR at ARM 17.8.740(14) is inconsistent with
the Clean Air Act (CAA) and is not approvable.
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\4\ See September 9, 1988 Memorandum from Don R. Clay, Acting
Assistant Administrator for Air and Radiation, to David A. Kee,
Director, Air and Radiation Division, Region V, titled
``Applicability of Prevention of Significant Deterioration (PSD) and
New Source Performance Standards (NSPS) Requirements to the
Wisconsin Power Company (WEPCO) Port Washington Life Extension
Project.''
---------------------------------------------------------------------------
b. ``Modify.'' We are not taking action on part of the definition
of ``modify.'' The new definition for ``modify'' at ARM 17.8.740(8)
refers to the ``Exclusion of De Minimis Changes'' provision codified at
ARM 17.8.745, which EPA is not taking action on (see discussion
regarding ARM 17.8.745 below). Since we are not taking action on ARM
17.8.745, we are proposing to approve ARM 17.8.740(8) with the
exception of the following phrases: (1) ``Except when a permit is not
required under ARM 17.8.745'' in ARM 17.8.740(8)(a); and (2) ``except
as provided in ARM 17.8.745'' in ARM 17.8.740(8)(c).
c. ``Negligible risk to the public health, safety, and welfare and
to the environment.'' We are proposing to disapprove the definition of
``negligible risk to the public health, safety, and welfare and to the
environment'' in ARM 17.8.740(10) because, in a March 30, 2006 letter
to EPA, the State rescinded its May 28, 2003 request for provision ARM
17.8.770 (Additional Requirements for Incinerators) to be included in
the federally-approved SIP. ARM 17.8.770 is the only provision in
Subchapter 7 that utilizes this definition; and therefore, it is not
necessary for it to be incorporated into the SIP.
Finally, during the State's rulemaking process we expressed
concerns with the definition of ``construct or construction'' in ARM
17.8.740(2). We were concerned because this definition includes the
phrase ``reasonable period of time for startup and shakedown.''
Subchapters 8, 9 and 10 contain their own definitions addressing
construction in ARM 17.8.801(5) and (10) and ARM 17.8.901(3) and (6)
for major source permitting; however, the addition of the phrase
``reasonable period of time for startup and shakedown'' makes the
definition of ``construct or construction'' in ARM 17.8.740(2)
inconsistent with the same term used in major source permitting. Since
this phrase also reduces the stringency of the current SIP approved
regulations, an analysis should be provided by the State showing that
this new rule will not interfere with compliance with the National
Ambient Air Quality Standards (NAAQS) or PSD increments. Section 110(l)
of the CAA states that EPA cannot approve a SIP revision that would
interfere with any applicable requirement concerning attainment or
reasonable further progress, as defined in Section 171 of the CAA, or
any other applicable requirement of the CAA. Montana did not provide
any analysis or demonstration that the definition of ``construct or
construction'' in ARM 17.8.740(2) meets these criteria. Therefore, we
are proposing to approve the definition of ``construct or
construction'' in ARM 17.8.740(2) with the exception of the phrase
``reasonable period of time for startup and shakedown.''
2. ARM 17.8.743 Montana Air Quality Permits--When Required
On May 28, 2003, the State submitted new section ARM 17.8.743. ARM
17.8.743(1) describes those sources that are required to obtain a
Montana air quality permit and ARM 17.8.743(2)--(5) adds new provisions
pertaining to seasonal construction activities that can occur prior to
receiving a Montana air quality permit.
ARM 17.8.743(1) provides that any new or modified facility or
emitting unit that has the potential to emit more than 25 tons per year
of any airborne pollutant, except lead,\5\ must obtain a Montana air
quality permit except as provided in ARM 17.8.744 and ARM 17.8.745
before constructing, installing, modifying or operating. ARM
17.8.431(1)(b) also requires asphalt concrete plants, mineral crushers,
and mineral screens that have the potential to emit more than 15 tons
per year of any airborne pollutant, other than lead, to obtain a
Montana air quality permit. Sources excluded from the above
requirements are those that are
[[Page 9838]]
identified in ARM 17.8.744 and ARM 17.8.745.
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\5\ Facilities or emitting units that emit airborne lead must
obtain a Montana air quality permit if they are new and emit greater
than five tons per year of airborne lead, or if they are an existing
facility or emitting unit and a modification results in an increase
of airborne lead by an amount greater than 0.6 tons per year.
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ARM 17.8.743(l) is similar to what was previously required in
sections ARM 17.8.705(1)(l), (m), (n), and (o). ARM 17.8.705, which was
repealed with the May 28, 2003 submittal, identified those sources that
were not required to obtain a permit. ARM 17.8.705(1) listed those
sources that were not required to obtain a permit and included: (l)
Sources and stacks which do not have the potential to emit more than 25
tons per years, other than lead; (m) a new stack or source of airborne
lead whose potential to emit is less than 5 tons per year; (n) an
alteration or modification of an already constructed stack or other
source of lead contamination which results in an increase in maximum
potential of the source or stack to emit airborne lead by an amount
less than 0.6 tons per year; and (o) asphalt concrete plants and
mineral crushers which do not have the potential to emit more than 5
tons per year of any pollutant, other than lead.
For the most part, the provisions that were in ARM 17.8.705(1)(l),
(m), (n) and (o) are contained in the ARM 17.8.743(1), except that the
permitting threshold for asphalt concrete plants and mineral crushers
has been changed from 5 tons per year to 15 tons per year. During the
State's rulemaking process we expressed concerns with the new permit
threshold for asphalt concrete plants and mineral crushers. In its
response to our comments, the State indicated that it was making the
permit level for this source category consistent with other permitting
thresholds in the subchapter. Also, the State indicated that for
mineral screen operations the rule was more stringent since previously
only mineral screens greater than 25 tons per year had to get permits.
Since for asphalt concrete plants and mineral crushers this
revision (ARM 17.8.743(1)(b)) reduces the stringency of the current SIP
approved regulations, an analysis should be provided by the State
showing that this new rule will not interfere with compliance with the
NAAQS or PSD increments. Section 110(l) of the CAA states that EPA
cannot approve a SIP revision that would interfere with any applicable
requirement concerning attainment or reasonable further progress, as
defined in Section 171 of the CAA, or any other applicable requirement
of the CAA. Montana did not provide any analysis or demonstration that
the increased permit threshold, from 5 tons per year to 15 tons per
year, for asphalt concrete plants and mineral crushers meets these
criteria. Montana plans on providing a 110(l) analysis at a later date.
At the request of the State, we are taking no action on the phrase
``asphalt concrete plants, mineral crushers'' from ARM 17.8.743(1)(b).
We are proposing to approve the remainder of ARM 17.8.743(1)(b), which
is ``mineral screens that have the potential to emit more than 15 tons
per year of any airborne pollutant, other than lead, that is regulated
under this chapter.''
ARM 17.8.743(1) also refers to ARM 17.8.745. As indicated below, we
are taking no action on ARM 17.8.745. Consequently, we are taking no
action on the phrase ``and 17.8.745'' that is contained in ARM
17.8.743(1).
As part of the October 16, 2006 submittal, Montana requested to
withdraw the request to include ARM 17.8.743(1)(c) into the SIP as part
of the May 28, 2003 submission. This provision requires any incinerator
to obtain a Montana air quality permit. This incinerator specific
provision is not in the currently approved SIP. The approved SIP treats
incinerator sources under the provision for ``all other sources and
stacks not specifically excluded, which do not have the potential to
emit more than 25 tons per year of any pollutant, other than lead''
(codified at ARM 17.8.743(e)). We also note that any incinerators in
Montana that are not permitted must meet the SIP approved provisions in
ARM 17.8.316. Therefore, we are taking no action on ARM 17.8.743(1)(c)
and this section will not be incorporated into Montana's SIP. In
addition, the October 16, 2006 submittal requested a revision to ARM
17.8.743(1) to add a reference to a new rule codified at ARM 17.8.1602.
This revision and the new rule pertain to the regulation of oil and gas
well facilities, and we will address this revision request in a
separate action.
With the exceptions noted above, we are proposing to approve the
remaining language in ARM 17.8.743(1).
During the State's rulemaking process we expressed concerns with
the provisions in ARM 17.8.743(2)-(5). However, after further analysis
and for the reasons stated below, we are proposing to approve ARM
17.8.743(2)-(5). These provisions allow only limited site preparation
and construction, can be stopped by the State at any time, require a
permit application completeness determination from the State before
this type of work can occur, and exclude sources subject to Federal
requirements (i.e., PSD and synthetic minors). EPA's regulations at 40
CFR 51.160 do not require the issuance of a permit for the construction
or modification of minor sources, but only that the SIP include a
procedure to prevent the construction of a source or modification that
would violate the SIP control strategy or interfere with attainment or
maintenance of the NAAQS. Provision (2) of the State's regulation
limits site work prior to permit issuance to only installing concrete
foundation work, below-ground plumbing, installing ductwork, and other
infrastructure and/or excavation work involving the same. No
construction or installation of emission units will be allowed under
this provision. Provision (3) indicates that ``Notwithstanding the
ability to undertake the construction activities described above, the
department may issue a letter instructing the owner or operator to
immediately cease such activities pending a final determination on an
application if it finds that the proposed project would result in a
violation of the State Implementation Plan or would interfere with the
attainment or maintenance of any Federal or State ambient air quality
standard.'' Provision (4) indicates that the State is not obligated to
issue an air quality permit and that an ``owner or operator who has
received a completeness determination and who elects to engage in
initial construction activities accepts the regulatory risks of
engaging in such activities.'' Provision (5) indicates that ``the
provisions of (2) do not supersede any other local, state, or federal
requirements.'' The State has interpreted ARM 17.8.743(5), in its
formal response to EPA's comments, to mean that ARM 17.8.743(2) ``does
not allow pre-permit construction if some other permit or rule
prohibits such activities. For example, if a source needs a Prevention
of Significant Deterioration (PSD) permit, both federalFederal and
stateState regulations require that the applicant secure the permit
before undertaking any construction.'' The State's formal response to
comments on this provision also stated that ``nothing in this rule
would supersede these existing restrictions in other rules. The
applicant would only be able to undertake limited pre-permit
construction if it did not need a PSD permit as well.''
EPA approved minor NSR programs in several States do not require
permits prior to construction, but instead require sources to submit a
notice and authorization for sources to begin construction after a
specified time if the permitting authority does not issue an order
preventing construction. However, all minor NSR projects above the
permitting thresholds (25 tons per year for new sources and 15 tons per
year for modifications (not approved into the SIP)) in Montana will
receive a permit.
[[Page 9839]]
These projects go through the required air quality impact analysis
before the project is approved. Additionally, all minor NSR permits go
through a public notice and comment period before being issued.
EPA had commented to the State that we had concerns that ARM
17.8.743(2) does not require some type of administrative approval from
the State prior to allowing pre-permit construction activities. EPA did
not initially take into account the permit application completeness
determination from the Montana Department of Environment Quality (DEQ).
After reviewing the procedure for permit application completeness
determination, EPA has concluded that it is an administrative approval
which must be issued by the State prior to the start of pre-permit
construction activities, ensuring that sources that are subject to
Federal requirements (i.e., PSD and synthetic minors) do not begin any
construction prior to permit issuance. Also, the State clarified in its
response to EPA's comments that this pre-permit construction provision
is limited to true minor sources. A true minor source is not subject to
PSD requirements and is not subject to other Federal requirements.
As part of our analysis of Montana's pre-permit construction
provision we also reviewed recent EPA actions approving pre-permit
construction rules into other State SIPs. EPA's July 10, 2006 (71 FR
38773) approval of Mississippi's minor source permit regulations
included a new provision entitled ``Optional Pre-Permit Construction,''
which allows construction to commence on certain non-major sources and
non-major modifications prior to receiving a final permit to construct,
provided certain conditions are met. EPA also approved pre-permit
construction rules for the State of Idaho's permit to construct
regulations, which were approved into the Idaho SIP on January 16, 2003
(68 FR 2217). Both of these State provisions allow complete
construction of the source, including the emission units, prior to
issuance of the permit. However, these provisions preclude any actual
operation of the new or modified source before issuance of the final
construction permit. EPA has approved these provisions because they
require the prior written approval of the State and have safeguards to
ensure that new major stationary sources and major modifications do not
commence construction prior to permit issuance. Montana's pre-permit
construction provision differs from these other States' rules in that
it allows only limited site preparation and construction, which does
not include the emission units, and does not require the prior written
approval of the State.
As discussed above, Montana's ARM 17.8.743(2)-(5) is consistent
with the requirements of section 110(a)(2)(C) of the CAA and Federal
regulations found at 40 CFR 51.160 through 51.164, including 40 CFR
51.160(b), which requires States to have legally enforceable procedures
to prevent construction or modification of a source if it would violate
any SIP control strategies or interfere with attainment or maintenance
of the NAAQS. Furthermore, Montana's rule is consistent with 40 CFR
51.160(e), which requires States to identify the basis for determining
which facilities will be subject to review. Sources in Montana subject
to ARM 17.8.743 must have an air quality permit prior to construction
or modification of the emission units and prior to operation. Only
limited site preparation and construction, which does not include the
emission units, would be allowed at minor sources prior to issuance of
an air quality permit. A permit application completeness determination
from the Montana Department of Environmental Quality (Department) must
be made before this type of work can occur. Additionally, the
Department can require the owner or operator to immediately cease any
pre-permit construction activities if it finds that the proposed
project would result in a violation of the SIP or would interfere with
the attainment or maintenance of any Federal or State ambient air
quality standard. Finally, this proposal is consistent with prior EPA
statements.\6\ Therefore, we are proposing approval for ARM
17.8.743(2)-(5).
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\6\ NEPA's October 10, 1978, memorandum from Edward E. Reich,
Director Division of Stationary Source Enforcement, to Thomas W.
Devine, Chief Air Branch, Region 1, titled ``Source Construction
Prior to Issuance of PSD Permit,'' discusses preconstruction
activities allowed at a site with both PSD and non-PSD sources. This
memo states that construction may begin on PSD-exempt projects
before the permit is issued.
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3. ARM 17.8.744 Montana Air Quality Permits--General Exclusions
On May 28, 2003, the State submitted new section ARM 17.8.744. This
section describes those sources that are not required to obtain a
Montana air quality permit. This section is similar to what previously
existed in ARM 17.8.705(1), except that: (a) Several of the provisions
that were in ARM 17.8.705(1) were deleted or incorporated into ARM
17.8.743(1), and (b) two provisions were added (ARM 17.8.744(1)(f) and
(k)).
During the State's rulemaking process we expressed concerns with
the provisions in ARM 17.8.744(1)(f). However, after further review, we
are proposing to approve all of ARM 17.8.744 including ARM
17.8.744(1)(f). ARM 17.8.744(1)(f) is acceptable since this exclusion
is limited to emergency equipment used only to alleviate adverse
effects on public health or facility safety. In addition, this
exclusion is limited to only minor sources, since ARM 17.8.818(1)
states that ``a major stationary source or major modification exempted
from the requirements of Subchapter 7 under ARM 17.8.744 or 17.8.745
shall, if applicable, still be required to obtain a Montana air quality
permit and comply with all applicable requirements of this
subchapter.'' Likewise, ARM 17.8.904(1) and 17.8.1004(1) both indicate
``a major stationary source or major modification exempted from the
requirements of Subchapter 7 under ARM 17.8.744 or 17.8.745 * * *,
shall, prior to construction, still be required to obtain a Montana air
quality permit* * *''
4. ARM 17.8.745 Montana Air Quality Permits--Exclusion for De Minimis
Changes
On May 28, 2003, the State submitted new section ARM 17.8.745. This
section describes those situations where a source is not required to
obtain a Montana air quality permit under ARM 17.8.743 for de minimis
changes. With this provision, Montana has adopted a 15 tons per year
potential to emit increase as a de minimis limit for any pollutant
below which no permit is required for changes.
During the State's rulemaking process we expressed concerns with
the de minimis level specified in this provision. Since this new
section (ARM 17.8.745) reduces the stringency of the current SIP
approved regulations, an analysis should be provided by the State
showing that this new rule will not interfere with compliance with the
NAAQS or PSD increments. Section 110(l) of the CAA states that EPA
cannot approve a SIP revision that would interfere with any applicable
requirement concerning attainment or reasonable further progress, as
defined in Section 171 of the CAA, or any other applicable requirement
of the CAA. Montana did not provide any analysis or demonstration that
the new section (ARM 17.8.745) meets these criteria. Montana plans on
providing a 110(l) analysis at a later date, as well as a revision to
its 15 tons per year de minimus limit. At the request of the State, we
are taking no action on
[[Page 9840]]
Montana's de minimis provision in ARM 17.8.745.
5. ARM 17.8.748 New or Modified Emitting Units--Permit Application
Requirements
On May 28, 2003, the State submitted new section ARM 17.8.748. This
section describes the permit application requirements and for the most
part is the same as what previously existed in ARM 17.8.706 with some
minor changes. The last sentence contained in ARM 17.8.748(1) was
originally contained in ARM 17.8.707(1)(b) and ARM 17.8.748(7) was
originally contained in ARM 17.8.720(2)(a).
We are proposing to approve all of ARM 17.8.748.
6. ARM 17.8.749 Conditions for Issuance or Denial of Permit
On May 28, 2003, the State submitted new section ARM 17.8.749. This
section describes the conditions for issuance or denial of a Montana
air quality permit. The provisions in ARM 17.8.749(1), (3), (4), and
(7) are similar to what previously existed in ARM 17.8.710(1), (2),
(4), and ARM 17.7.730. The provisions in ARM 17.8.749(2), (5) and (6)
are new provisions.
On March 9, 2004, the State submitted revisions to ARM 17.8.749(7)
pertaining to how the Department notifies an applicant when it denies a
permit and advises the applicant of the right to appeal. The revisions
allow the Department to provide such notice through the mail.
During the State's rulemaking process, we expressed concerns with
provisions ARM 17.8.749(2)--that allow the department to extend the
deadlines specified in a permit and ARM 17.8.749(5)--that requires
``state-only'' conditions be identified in the permit, and specifies
these conditions ``are not intended by the department to be enforceable
under federal law.'' For ARM 17.8.749(2) we were concerned that
extended deadlines may conflict with requirements for sources subject
to PSD. In response to our concerns, the State indicated that the
provisions of their PSD rules (ARM 17.8.819) meet the requirements of
40 CFR 52.21(r) and 51.166(j)(4). After further analysis we are have
determined that ARM 17.8.749(2) allows a director's discretion, in that
it states that ``the department may extend a deadline specified in the
schedule'' for permit conditions to become effective. Based on this
director's discretion we are proposing to disapprove ARM 17.8.749(2).
For ARM 17.8.749(5) we asked for a justification as to why certain
permit provisions would not warrant Federal (and citizen) review and
enforceability. In response to our concerns, the State noted that they
``have adopted certain requirements that are more stringent than
Federal requirements,'' ``these rules are not intended to be part of
the SIP,'' and ``during the permitting process, EPA and other concerned
persons will have the opportunity to ensure that the Department
correctly applies the state-only designation.'' After further analysis
we have determined that ARM 17.8.749(5) will be used to identify State-
only provisions in permits that are more stringent than Federal
requirements. Therefore, we are proposing to approve ARM 17.8.749(5).
We are proposing to approve ARM 17.8.749(1), (3), (4), (5), (6) and
(8) submitted on May 28, 2003; and ARM 17.8.749(7) submitted on March
9, 2004.
7. ARM 17.8.752 Emission Control Requirements
On May 28, 2003, the State submitted new section ARM 17.8.752. This
section describes the emission control requirements for a new or
modified facility or emission unit. The provisions in ARM 17.8.752 are
similar to what previously existed in ARM 17.8.715, except that the
provisions in ARM 17.8.752(1)(a)(i) are new. This new provision states
that Montana's minor source Best Available Control Technology (BACT)
requirement is only triggered for the modified unit at an existing
source (not the entire source). Federal NSR regulations do not require
BACT for minor sources. Therefore, we are proposing to approve all of
ARM 17.8.752.
8. ARM 17.8.755 Inspection of Permit
On May 28, 2003, the State submitted new section ARM 17.8.755. This
section indicates that the current Montana air quality permit must be
made available at the facility or emitting unit unless the permittee
and Department agree on a different location. This section is similar
to what previously existed in ARM 17.8.716, except that a new phrase
was added indicating that a different location may be acceptable if
mutually agreeable between the permittee and department.
We are proposing to approve ARM 17.8.755.
9. ARM 17.8.756 Compliance With Other Requirements
On May 28, 2003, the State submitted new section ARM 17.8.756. This
section describes the permittee responsibilities in complying with
other requirements. ARM 17.8.756(1) is similar to what previously
existed in ARM 17.8.717, and ARM 17.8.756(2) and (3) is similar to what
previously existed in ARM 17.8.710(6) and (3), respectively.
We are proposing to approve ARM 17.8.756.
10. ARM 17.8.759 Review of Permit Applications
On May 28, 2003, the State submitted new section ARM 17.8.759. This
section describes the Department's responsibilities for determining
completeness of the permit application, for issuing a preliminary
completeness determination, for public notification and providing the
opportunity for comment, and for issuing a final decision. Most of this
new section is similar to what previously existed in ARM 17.8.720(2)
and (3).
During the State's rulemaking process we expressed concerns with
the timeframe allowed for the public and EPA to comment on preliminary
permit determinations. On March 9, 2004, the State submitted revisions
to ARM 17.8.759(4). The revisions extend the date by which comments can
be submitted on the preliminary determination for certain permit
actions and the timeline for the department to notify the applicant of
approval or denial of the application. On October 16, 2006, the State
submitted additional revisions to ARM 17.8.759(4), added a new
17.8.759(5), and renumbered the existing paragraph 17.8.759(5) to (6).
The new 17.8.759(5) specifies, in part, that ``the department may, on
its own action, or at the request of the applicant or member of the
public, extend by 15 days the period within which public comments may
be submitted as described in (4)(b)(ii) and the date for issuing a
final decision on a permit application.'' After further analysis, we no
longer have concerns with this provision because the Department now has
an opportunity to extend by 15 days the period in which public comments
may be submitted either on its own, or at the request of an external
party. This would minimize the time crunch for reviewing draft permits.
We are proposing to approve ARM 17.8.759(1) through (3), submitted
on May 28, 2003; and ARM 17.8.759(4), (5), and (6) submitted on October
16, 2006.
11. ARM 17.8.760 Additional Review of Permit Applications
On May 28, 2003, the State submitted new section ARM 17.8.760. This
section describes additional review requirements for applications
subject to the Montana Environmental Policy Act and the Major Facility
Siting Act. This section is similar to what previously existed in ARM
17.8.720(1) and (4).
[[Page 9841]]
We are proposing to approve ARM 17.8.760.
12. ARM 17.8.762 Duration of Permit
On May 28, 2003, that State submitted new section ARM 17.8.762.
This section describes the conditions that affect the duration of a
permit. This section is similar to what previously existed in ARM
17.8.731. Provision ARM 17.8.762(2) specifies that a permit will expire
unless construction or installation is commenced within the time
specified in the permit, which may not be less than one year or more
than three years after the permit is issued. The current SIP-approved
provision in ARM 17.8.731 does not specify a maximum time period for
permit expiration.
During the State's rulemaking process, we expressed concerns with
the permit expiration timelines in ARM 17.8.762(2). We were concerned
that extended deadlines may conflict with requirements for sources
subject to PSD. In response to our concerns, the State indicated that a
provision in their PSD rules (ARM 17.8.819) met the requirements of 40
CFR 52.21(r)(2) and 51.166(j)(4). The State further indicated that this
rule ``will not replace the PSD requirements for PSD sources (i.e., the
18-month limit applies to PSD sources, but not to non-PSD sources).''
Despite the State's assertion, we note that ARM 17.8.819 does not meet
the Federal PSD requirements of 40 CFR 52.21(r)(2), which specifies
that ``approval to construct shall become invalid if construction is
not commenced within 18 months after receipt of such approval.'' 40 CFR
52.21 specifies the PSD requirements for areas that are not covered by
a federally approved PSD SIP.
However, the PSD requirements for SIP-approved States, such as
Montana, contained in 40 CFR 51.166 do not have an ``18-month''
provision analogous to 40 CFR 52.21(r)(2). ARM 17.8.819 is consistent
with the ``18-month phased construction project'' provision in
51.166(j)(4). Therefore, ARM 17.8.762(2) is consistent with the Federal
PSD rules for SIP-approved States. We are proposing to approve ARM
17.8.762.
13. ARM 17.8.763 Revocation of Permit
On May 28, 2003, the State submitted new section ARM 17.8.763. This
section describes the reasons why the Department may revoke a Montana
air quality permit, the process the Department must follow when
revoking a permit, and the ability of the permittee to request a
hearing before the Board. This section is similar to what previously
existed in ARM 17.8.732.
During the State's rulemaking process, we expressed concerns with
the provisions in ARM 17.8.763(1) in that applicable provisions or the
permit (e.g., major source requirements) may be inadvertently revoked
at the request of the permittee. In response to our concerns, the State
indicated that while some portions of a permit may be revoked, the
permit as a whole must still meet any underlying applicable
regulations. After further analysis, we no longer have concerns with
these provisions because the State does not intend to revoke any
applicable regulations, only minor administrative changes.
On March 9, 2004, the State submitted revisions to ARM 17.8.763(2)
and (3) pertaining to how the Department notifies an applicant when it
revokes a permit or a portion of a permit. The revisions allow the
Department to provide such notice through the mail.
We are proposing to approve ARM 17.8.763 (1) and (4), submitted on
May 28, 2003; and ARM 17.8.763(2) and (3), submitted on March 9, 2004.
14. ARM 17.8.764 Administrative Amendment to Permit
On May 28, 2003, the State submitted new section AMR 17.8.764. This
section describes how the Department may make administrative amendments
to a Montana air quality permit, the process the Department must follow
when making administrative amendments to a permit, and the ability of
the permittee to request a hearing before the Board of. This section is
similar to what previously existed in ARM 17.8.733, except that ARM
17.8.764(1)(c) is a new provision.
On March 9, 2004, the State submitted revisions to ARM 17.8.764(2)
and (3) pertaining to how the Department notifies an applicant when it
proposes administrative amendments to a permit. The revisions allow the
Department to provide such notice through the mail.
During the State's rulemaking process we raised concerns that some
administrative amendments should receive public review even though
there might not be an increase in emissions. In response to our
concerns, the State indicated that the current SIP-approved rule
contains the same provision. After further analysis, we have determined
that new section ARM 17.8.764 is consistent with the existing SIP-
approved ARM 17.8.733.
We are proposing to approve ARM 17.8.764(1) (except as noted below)
and (4), submitted on May 28, 2003; and ARM 17.8.764(2) and (3)
submitted on March 9, 2004. As indicated earlier, we are taking no
action on ARM 17.8.745. Consequently, we are taking no action on the
phrase ``the emission increase meets the criteria in ARM 17.8.745 for a
de minimis change not requiring a permit,'' that is contained in ARM
17.8.764(1)(b).
15. ARM 17.8.765 Transfer of Permit
On May 28, 2003, the State submitted new section ARM 17.8.765. This
section describes the requirements for transferring a Montana air
quality permit from one location to another, and from one owner or
operator to another. This section is similar to what previously existed
in ARM 17.8.734, except that ARM 17.8.765(3) revises what was in ARM
17.8.734(3). The main difference is that the prior rule required action
by the Department to approve or disapprove the permit transfer and the
new rule indicates that the transfer is deemed approved if the
Department does not act within 30 days of receipt of the notice.
During the State's rulemaking process we expressed concerns with
the provisions in ARM 17.8.765(3) in that a source may inappropriately
locate in an area and jeopardize attainment of the NAAQS and the permit
transfer would be deemed approved if the Department does not act within
30 days. In its response to our concerns, the State indicated that
permits for portable sources are written in such a manner as to comply
with applicable requirements regardless of location of the source.
Consequently, we are proposing to approve all of ARM 17.8.765.
16. ARM 17.8.767 Incorporation by Reference
On May 28, 2003, the State submitted new section ARM 17.8.767. This
section adopts and incorporates by reference various documents and
indicates where these documents are available. This section is similar
to what previously existed in ARM 17.8.702.
On October 25, 2005, the State submitted revisions to ARM 17.8.767.
This revision deletes the incorporation by reference (IBR) of 40 CFR
52.21 (Prevention of significant deterioration of air quality) in ARM
17.8.767(1)(d) and modifies the addresses where various documents can
be obtained in ARM 17.8.767(2), (3) and (4). 40 CFR 52.21 specifies the
PSD requirements for areas that are not covered by a federally approved
PSD SIP. Since Subchapter 7 contains the requirements for the
permitting, construction, and operation of all air contaminant sources
and not just PSD sources, this IBR of 40 CFR 52.21 is not necessary.
Subchapter 8
[[Page 9842]]
contains Montana's SIP approved PSD rules.
We are proposing to approve ARM 17.8.767(1)(a) through (c),
submitted on May 28, 2003; and ARM 17.8.767(1)(d) through (g) and
17.8.767(2), (3) and (4) submitted on October 25, 2005.
17. ARM 17.8.770 Additional Requirements for Incinerators
On May 28, 2003, the State submitted new section ARM 17.8.770. This
section discusses additional requirements an incineration facility must
meet for a Montana air quality permit. In the prior codification of
Subchapter 7, this section had not been incorporated into the SIP. On
March 30, 2006, the Department requested to withdraw the request to
include ARM 17.8.770 into the SIP as part of the May 28, 2003
submission. Consequently, we are taking no action on ARM 17.8.770, and
this section will not be incorporated into Montana's SIP.
C. Revisions to Other Subchapters
On May 28, 2003, the State submitted revisions to other subchapters
of the ARM. Because the State repealed, in Subchapter 7, various rules
and added new rules in their place, the cross-references in other
subchapters are being revised. In addition, the previous Subchapter 7
referred to ``air quality preconstruction permits'' whereas the new
Subchapter 7 refers to ``Montana air quality permits.'' In other
subchapters, the phrase ``air quality preconstruction permits'' is
being replaced with ``Montana air quality permits.'' Finally, new rules
are being added and minor administrative changes are occurring in other
subchapters.
EPA is proposing to approve revisions to the following sections
submitted on May 28, 2003: ARM 17.8.101(4); 7.8.110(7), (8), and (9);
17.8.818(1); 17.8.825(3); 17.8.826(1) and (2); 17.8.904(1) and (2);
17.8.905(1) and (4); 17.8.906; 17.8.1004; 17.8.1005(1), (2), and (5);
17.8.1106; and 17.8.1109.
On May 28, 2003, the State submitted revisions to ARM
17.8.309(5)(b) and 17.8.310(3)(e). We previously disapproved the
provisions in ARM 17.8.309(5)(b) and 17.8.310(3)(e) on January 24, 2006
(see 40 CFR 52.1384(a)). Therefore, we are proposing to not act on the
revisions to these same sections submitted on May 28, 2003.
On May 28, 2003, the State submitted revisions to ARM 17.8.316(6).
This rule pertains to the regulation of incinerators and we will
address this revision in a separate action with other revisions to ARM
17.8.316 submitted previously.
We have previously approved changes to ARM 17.8.901(14) that
incorporate the changes to ARM 17.8.901(14)(e)(iii) submitted on May
28, 2003 (see January 24, 2006 (71 FR 3776) action). Since we have
already approved these revisions into the SIP we are not taking action
on them in this document.
On October 16, 2006, the State submitted a revision to ARM
17.8.743(1) and new rules codified at ARM 17.8.1601, 17.8.1602,
17.8.1603, 17.8.1604, 17.8.1605, and 17.8.1606. These rules pertain to
the regulation of oil and gas well facilities, and we will address this
revision request in a separate action.
IV. Summary of EPA's Proposed SIP Action
We are proposing to approve the removal of the following provisions
from the federally- approved SIP: ARM 17.8.701, 17.8.702, 17.8.704,
17.8.705, 17.8.706, 17.8.707, 17.8.710, 17.8.715, 17.8.716, 17.8.717,
17.8.720, 17.8.730, 17.8.731, 17.8.732, 17.8.733, and 17.8.734.
We are proposing to approve the following new Subchapter 7
provisions into the federally-approved SIP: ARM 17.8.740 (except
17.8.740(10) and (14) and the following phrases in 17.8.740(8)(a) and
(c), respectively, (1) ``except when a permit is not required under ARM
17.8.745;'' and (2) ``except as provided in ARM 17.8.745'' and the
phrase ``reasonable period of time for startup and shutdown'' in ARM
17.8.740(2)), submitted on May 28, 2003; 17.8.743 (except the phrases
``asphalt concrete plants, mineral crushers'' in 17.8.743(1)(b) ``and
17.8.745'' in 17.8.743(1), and 17.8.743(1)(c)), submitted on May 28,
2003; 17.8.744 and 17.8.748, submitted on May 28, 2003; 17.8.749(1),
(3), (4), (5), (6), and (8), submitted on May 28, 2003; 17.8.749(7),
submitted on March 9, 2004; 17.8.752, 17.8.755, and 17.8.756, submitted
on May 28, 2003; 17.8.759(1) through (3), submitted on May 28, 2003;
17.8.759(4) through (6), submitted on October 16, 2006; 17.8.760 and
17.8.762, submitted on May 28, 2003; 17.8.763(1) and (4), submitted on
May 28, 2003; 17.8.763(2) and (3), submitted on March 9, 2004;
17.8.764(1) (except the phrase ``the emission increase meets the
criteria in ARM 17.8.745 for a de minimis change not requiring a
permit'' in 17.8.764(1)(b)) and (4), submitted on May 28, 2003;
17.8.764(2) and (3), submitted on March 9, 2004; 17.8.765, submitted on
May 28, 2003; 17.8.767(1)(a) through (c), submitted on May 28, 2003;
and 17.8.767(1)(d) through (g), (2), (3), and (4), submitted on October
25, 2005.
We are proposing to disapprove the following new Subchapter 7
provisions: ARM 17.8.749(2), ARM 17.8.740(10), 17.8.740(14); and
portions of 17.8.740(2).
We are proposing to approve revisions to the following sections of
other subchapters submitted on May 28, 2003: ARM 17.8.101(4);
17.8.110(7), (8), and (9); 17.8.818(1); 17.8.825(3); 17.8.826(1) and
(2); 17.8.904(1) and (2); 17.8.905(1) and (4); 17.8.906; 17.8.1004;
17.8.1005(1), (2), and (5); 17.8.1106; and 17.8.1109.
We are not acting, at the request of the State, on the following
provisions in Subchapter 7: ARM 17.8.743(1)(c) and ARM 17.8.770, the
phrase ``asphalt concrete plants, mineral crushers'' in ARM
17.8.743(1)(b) and ARM 17.8.745 submitted on May 28, 2003.
We are not acting on the following provisions of other subchapters:
The following phrases in 17.8.740(8)(a) and (c), respectively, (1)
``except when a permit is not required under ARM 17.8.745'' and (2)
``except as provided in ARM 17.8.745,'' submitted on May 28, 2003; ARM
17.8.309(5)(b), 17.8.310(3)(e), 17.8.316(6), and 17.8.901(14)(3)(iii),
submitted on May 28, 2003; the phrase ``and 17.8.745'' in ARM
17.8.743(1), submitted on May 28, 2003; ARM 17.8.749(2) submitted on
May 28, 2003; and the phrase ``the emission increase meets the criteria
in ARM 17.8.745 for a de minimis change not requiring a permit,'' in
ARM 17.8.764(1)(b), submitted on May 28, 2003; and ARM 17.8.743(1),
17.8.1601, 17.8.1602, 17.8.1603, 17.8.1604, 17.8.1605, and 17.8.1606,
submitted on October 16, 2006.
V. Statutory and Executive Order Reviews
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, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this proposed 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 Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
[[Page 9843]]
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 Clean Air Act; 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, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds, Incorporation by reference.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 3, 2010.
Carol Rushin,
Acting Regional Administrator, Region 8.
[FR Doc. 2010-4559 Filed 3-3-10; 8:45 am]
BILLING CODE 6560-50-P
