Disapproval and Promulgation of Air Quality Implementation Plans; Montana; Revisions to the Administrative Rules of Montana-Air Quality, Subchapter 7, Subchapter 16 and Subchapter 17, 758-763 [2011-18]
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Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules
of required permits, imposing undue
costs on small sources; which would
overwhelm Connecticut’s permitting
resources and severely impair the
function of the program.
The State’s December 9, 2010,
proposed SIP revision: (1) Provides the
State with the authority to regulate GHG
under the PSD program of the CAA, and
(2) establishes thresholds for
determining which stationary sources
and modification projects become
subject to permitting requirements for
GHG emissions under the PSD program.
Specifically, Connecticut’s December 9,
2010, proposed SIP revision includes
proposed changes to Regulations of
Connecticut State Agencies, section
22a–174–1, by adding definitions for
‘‘carbon dioxide equivalent emissions’’
and ‘‘greenhouse gases.’’ The proposed
SIP revision also addresses the
thresholds for GHG permitting
applicability and implementation
through changes proposed to
Connecticut’s PSD regulations at section
22a–174–3a.
The State of Connecticut is currently
a SIP-approved state for the PSD
program. However, Connecticut does
not interpret its current rules, which are
generally consistent with the federal
rules, to be automatically updating to
include newly designated regulated air
pollutants such as GHG. In a letter
provided to EPA on July 20, 2010,
Connecticut notified EPA that the State
does not currently have the authority to
regulate GHG and thus is in the process
of revising its regulation (the subject of
this proposed action) to provide this
authority. To provide this authority,
Connecticut is adding definitions of
‘‘carbon dioxide equivalent emissions’’
and ‘‘greenhouse gases’’ to section 22a–
174–1, and revising PSD applicability
and BACT requirements in section 22a–
174–3a, to explicitly regulate GHG
under the CAA. EPA has preliminarily
determined that this change to
Connecticut’s regulation is consistent
with the CAA and its implementing
regulations regarding GHG.
The changes included in
Connecticut’s PSD program are
substantively the same as EPA’s
Tailoring Rule. The Connecticut rules
have been developed to conform to the
structure of Connecticut’s rule in
section 22a–174–3a, but in substantive
content the rules that address the
Tailoring Rule provisions are the same
as the federal rules. As part of its review
of the Connecticut submittal, EPA
performed a line-by-line review of
Connecticut’s proposed changes to its
regulations and concluded the state’s
proposed regulations are consistent with
the Tailoring Rule.
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V. Proposed Action
Pursuant to section 110 of the CAA,
EPA is proposing to approve the State
of Connecticut’s December 9, 2010,
proposed SIP revision, relating to PSD
requirements for GHG-emitting sources.
Specifically, Connecticut’s December 9,
2010, proposed SIP revision: (1)
Provides the State with the authority to
regulate GHGs under its PSD program,
and (2) establishes appropriate
emissions thresholds for determining
PSD applicability to new and modified
GHG-emitting sources in accordance
with EPA’s Tailoring Rule. EPA has
made the preliminary determination
that this SIP revision is approvable
because it is in accordance with the
CAA and EPA regulations regarding
PSD permitting for GHGs.
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this proposed
action merely approves the State’s law
as meeting federal requirements and
does not impose additional
requirements beyond those imposed by
the State’s law. For that reason, this
proposed 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.);
• 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);
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• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, 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, Incorporation by
reference, Intergovernmental relations,
and Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 22, 2010.
H. Curtis Spalding,
Regional Administrator, EPA New England.
[FR Doc. 2011–17 Filed 1–5–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2007–0662; FRL–9248–2]
Disapproval and Promulgation of Air
Quality Implementation Plans;
Montana; Revisions to the
Administrative Rules of Montana—Air
Quality, Subchapter 7, Subchapter 16
and Subchapter 17
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to
disapprove portions of revisions and
new rules as submitted by the State of
Montana on October 16, 2006 and
November 1, 2006. Montana adopted
these rules on December 2, 2005 and
March 23, 2006 and these rules became
State-effective on January 1, 2006. These
revisions and new rules do not meet the
requirements of the Clean Air Act and
EPA’s Minor New Source Review (NSR)
regulations. EPA has concluded that
none of the identified elements for the
submitted revisions and new rules are
SUMMARY:
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severable from each other. The intended
effect of this action is to propose to
disapprove these rules as they 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 February 7, 2011.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2007–0662, by one of the
following methods:
• https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
• E-mail: 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–2007–
0662. 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
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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. Publiclyavailable 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. What is being addressed in this document?
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) Minor NSR means NSR
established under section 110 of the Act
and 40 CFR 51.160.
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(iv) NSR means new source review, a
phrase intended to encompass the
stationary source regulatory programs
that regulate the construction and
modification of stationary sources as
provided under CAA section
110(a)(2)(C), CAA Title I, parts C and D,
and 40 CFR 51.160 through 51.166.
(v) The initials SIP mean or refer to
State Implementation Plan.
(vi) The words State or Montana
mean the State of Montana, unless the
context indicates otherwise.
(vii) NAAQS means National Ambient
Air Quality Standards.
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.
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h. Make sure to submit your
comments by the comment period
deadline identified.
II. What is being addressed in this
document?
On October 16, 2006, the State of
Montana submitted revisions to revise
the Montana State Implementation Plan
(SIP) and rules. This submission
contained revisions to Administrative
Rules of Montana (ARM) 17.8.743(1),
and new rules I–VI, codified as ARM
17.8.1601, 17.8.1602, 17.8.1603,
17.8.1604, 17.8.1605, and 17.8.1606,
pertaining to the regulation of oil and
gas well facilities, and 17.8.759,
pertaining to Montana air quality permit
applicability. The revisions to ARM
17.8.743(1), 17.8.1601, 17.8.1602,
17.8.1603, 17.8.1604, 17.8.1605, and
17.8.1606 provide, generally, that an
owner or operator of an oil and gas well
facility for which a Montana air quality
permit is required may wait until 60
days after the well completion date
before submitting an application for a
permit. EPA is proposing to act on the
revisions to these seven regulations in
this notice. The Montana Board of
Environmental Review (Board) adopted
these revisions to existing SIP revisions
and new rules on December 2, 2005.
ARM 17.8.759 is being addressed in a
separate action (see 75 FR 9834–9843).
The submission also contains revisions
to ARM 17.8.1402 pertaining to
incorporation by reference. This
revision was addressed by EPA in a
previous action (see 75 FR 3993–3996).
In addition to these revisions, on
October 16, 2006, Montana is also
withdrawing ARM 17.8.743(1)(c)
regarding the applicability of
incinerators in the Montana air
pollution program rules. ARM
17.8.743(1)(c) was inadvertently
included in the submission dated May
28, 2003. The Board adopted ARM
17.8.743(1)(c) on December 6, 2002.
On November 1, 2006, the State of
Montana submitted revisions to revise
the Montana SIP and rules. This
submission contained revisions to ARM
17.8.504, 17.8.505, 17.8.744, 17.8.1204
and new rules I–IX, codified as ARM
17.8.1701, 17.8.1702, 17.8.1703,
17.8.1704, 17.8.1705,17.8.1710,
17.8.1711, 17.8.1712 and 17.8.1713
pertaining to the regulation of oil and
gas well facilities. The revision to ARM
17.8.504 pertains to air quality permit
application fees; ARM 17.8.505 pertains
to air quality operation fees; ARM
17.8.744(l) provides that a Montana air
quality permit is not required for
facilities that register with the
department in accordance with ARM
17.8.17; and ARM 17.8.1204 addresses
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air quality operating permit program
applicability. The Board adopted these
new rules and rule amendments on
March 23, 2006. EPA is proposing to act
on all these rule submissions in this
action.
EPA notes that ARM 17.8.1204
(regarding Air Quality Operating Permit
Program Applicability) and ARM
17.8.505 (regarding Air Quality
Operation Fees) are part of the Title V
and Part 70 regulations which we do not
approve into the SIP. Instead, we
approve operating permit regulations
under our operating permit regulations
at 40 CFR part 70. Thus, we intend to
consider approval of Montana’s
proposed Part C revisions pursuant to
our part 70 regulations at such time as
Montana submits an appropriate request
under 40 CFR 70.4(i). The revisions are
meaningless absent their regulatory
context, and that regulatory context is
not part of the EPA-approved SIP and is
not incorporated by reference into 40
CFR part 52. Instead, the approval status
of Montana’s part 70 Program is
reflected in 40 CFR part 70, Appendix
A. Thus, because we are obligated to act
on SIP submissions, we plan to
disapprove these revisions as a revision
to Montana’s SIP. If the State requests to
withdraw part C from the SIP revision
prior to the time we take final action, we
would not be obligated to take final
action because part C would no longer
be pending before the Agency as a SIP
revision. Additionally, if requested by
the State, we will separately consider
these revisions as a revision to the
approved operating permit program for
the State.
The November 1, 2006 submission
also contains revisions to the following
rules: ARM 17.8.101, ARM 17.8.102,
ARM 17.8.103, ARM 17.8.302, ARM
17.8.767, ARM 17.8.801, ARM 17.8.802,
ARM 17.8.818, ARM 17.8.902 and ARM
17.8.1002 pertaining to incorporation by
reference of current federal regulations
and other materials into air quality
rules. EPA is not acting on these rule
submissions. These revisions were
addressed by EPA in a previous action
(see 75 FR 3993–3996).
These proposed amendments to
existing new rules and adoption of new
rules listed above that are the subject of
this notice, hereafter referred to as ‘‘the
Program,’’ would establish a registration
system for certain facilities that
presently require a minor NSR air
quality permit under the SIP
regulations. The Program would
establish a general registration system
for oil and gas well facilities. The
Program would allow the owner or
operator of an oil or gas well facility to
register with the Montana Department of
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Environmental Quality (MDEQ) in lieu
of submitting a permit application and
obtaining a permit to construct or
modify the source. Currently, with
specific exemptions, the administrative
rules adopted under the CAA of
Montana and approved by EPA into the
SIP, require the owner or operator of
sources of air pollution to obtain a
permit prior to construction or
modification.
III. EPA Review and Proposed Action
on SIP Revisions
EPA is proposing to disapprove the
revisions and new rules as submitted by
Montana on October 16, 2006 and
November 1, 2006, as identified above.
Section 110(a)(2)(C) of the Act
requires that each implementation plan
include a program to regulate the
construction and modification of
stationary sources, including a permit
program as required by parts C and D of
title I of the Act, as necessary to assure
that the NAAQS are achieved. Parts C
and D, which pertain to prevention of
significant deterioration (PSD) and
nonattainment, respectively, address
major NSR programs for stationary
sources, and the permitting program for
‘‘nonmajor’’ (or ‘‘minor’’) stationary
sources is addressed by section
110(a)(2)(C) of the Act. We generally
refer to the latter program as the ‘‘minor
NSR’’ program. A minor stationary
source is a source whose ‘‘potential to
emit’’ is lower than the major source
applicability threshold for a particular
pollutant defined in the applicable
major NSR program.
Therefore, we evaluated the submitted
revisions and new rules using the
federal regulations under CAA section
110(a)(2)(C), which require each State to
include a minor NSR program in its SIP.
EPA regulations require that a minor
NSR program include:
• A plan that includes ‘‘legally
enforceable procedures that enable’’ the
permitting agency to determine whether
a minor source will cause or contribute
to violations of applicable portions of
the control strategy, 40 CFR
51.160(a)(1).
• A plan that sets forth legally
enforceable procedures that enable the
State to determine whether the minor
source will result in ‘‘interference with
a national ambient air quality standard,’’
40 CFR 51.160(a)(2) and, to prevent the
source from doing so, 40 CFR 51.160(b).
• A plan that includes a discussion of
‘‘the basis for determining which
facilities will be subject to review,’’ 40
CFR 51.160(e).
• A plan that includes a discussion of
‘‘the air quality data and the dispersion
or other air quality modeling used’’ to
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meet the requirements of EPA
regulations 40 CFR 51.160(f).
In addition, we reviewed the State’s
regulations for compliance with the Act.
Generally, SIPs must be enforceable (see
section 110(a) of the Act) and must not
relax existing SIP requirements (see
section 110(l) and 193 of the Act).
EPA has issued several guidance
memoranda that explain the Agency’s
requirements for practicable
enforceability for purposes of effectively
limiting a source’s potential to emit.
See, e.g., June 13, 1989 Memorandum
entitled, ‘‘Guidance on Limiting
Potential to Emit in New Source
Permitting, from Terrell F. Hunt,
Associate Enforcement Counsel, OECA,
and John Seitz, Director, OAQPS, to
EPA Regional Offices. Further guidance
was provided on January 25, 1995 in a
memorandum entitled, ‘‘Options for
Limiting the Potential to Emit (PTE) of
a Stationary Source Under Section 112
and Title V of the Clean Air Act (Act),’’
from John Seitz, Director, OAQPS and
Robert I. Van Heuvelen, Director, ORE
to Regional Air Directors. Although the
latter memo applies to stationary
sources subject to CAA Section 112 and
Title V, we are citing this notice for the
general practicable enforceability
principles.
For example, as presented in the
guidance, practicable enforceability for
a source-specific permit means that the
permit’s provisions must, at a
minimum:
(1) Include technically accurate
emission limitations;
(2) Specify the time period for the
limitation (hourly, daily, monthly,
annually);
(3) Specify the method for
determining compliance including
appropriate monitoring, recordkeeping
and reporting (MRR);
(4) Identify the category of sources
that are covered by the rule;
(5) Where coverage is optional,
provide for notice to the permitting
authority of the source’s election to be
covered by the rule; and
(6) Recognize the enforcement
consequences relevant to the rule.
EPA reviewed the proposed new rules
against the six criteria mentioned above.
This review, which is also discussed in
a memo from Richard R. Long, Director,
Region 8 Air and Radiation Program, to
the Board on January 30, 2006 (Long
memo), includes:
a. Specific applicability. The Rules
must clearly identify the category of
sources that qualify for the rule’s
coverage.
b. Reporting or notice to permitting
authority. The rule should provide that
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a source notify the permitting authority
of its coverage by the rule.
c. Specific technically accurate
emission limits. The rule must clearly
specify the emission limits that apply,
and include the specific associated
compliance monitoring. A rule that
allows sources to submit the specific
parameters and associated emission
limits to be monitored may not be
enforceable because the rule itself does
not set specific emission limits.
d. Specific compliance monitoring.
The rule must specify the methods to
determine compliance. Specifically, the
rule must state the monitoring
requirements, recordkeeping
requirements, reporting requirements
and test methods as appropriate.
e. Practically enforceable averaging
times. The averaging time period must
readily allow for determination of
compliance.
f. Clearly recognized enforcement.
Violations of the emission thresholds
imposed by the rule constitute
violations of permitting and SIP
requirements.
Section 110(a)(2)(A) of the Act and 40
CFR 51.160(a)(1) requires that SIP
revision submittals be enforceable. The
September 23, 1987, Memorandum from
J. Craig Potter, Assistant Administrator
for Air and Radiation, and Thomas L.
Adams Jr., Assistant Administrator for
Enforcement and Compliance
Monitoring, entitled ‘‘Review of State
Implementation Plans and Revisions for
Enforceability and Legal Sufficiency’’
provides EPA’s guidance for
interpreting this provision in the Act.
EPA proposes to find that the proposed
new and modified rules do not meet the
requirements of section 110(a)(2), which
require that SIP revision submittals be
enforceable. First, there are no specific
up-front methodologies in the submitted
Program for the State to use to be able
to determine whether a source covered
by these rules is in compliance with 40
CFR 51.160. The Program fails to meet
the enforceability requirements to
assure compliance. This is because there
are no specific limits to limit
production, hours of operation, fuel
consumption, etc. to ensure the facility’s
potential to emit remains below major
source thresholds for any particular
pollutant. Second, while ARM
17.8.1705, codified as New Rule V,
requires that the owner or operator of a
registered facility shall monitor and
record annual production information
for all emission points and maintain
onsite records showing daily hours of
operation and daily production rates,
17.8.1705 does not have any specific
limits that limit the potential to emit.
Thus, EPA finds that the testing,
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recordkeeping, reporting, and
monitoring provisions necessary to
establish how compliance will be
determined and to ensure that the
NAAQS are protected are insufficient.
The rule must clearly specify the
emission limits that apply, and include
the necessary more specialized
monitoring, recordkeeping, and
reporting (MRR) requirements required
for an oil and gas registration program
to ensure accountability and provide a
means to determine compliance. The
submitted Program is generic
concerning MRR. For example, ARM
17.8.1705 requires that the owner or
operator of a registered facility shall
monitor and record annual production
information for all emission points, as
required by the MDEQ in the annual
emission inventory request. ARM
17.8.1605 (Recordkeeping requirements)
only requires that the owner or operator
of an oil and gas well facility shall
record, and maintain onsite or at a
central field office, a record of each
monthly inspection. There are no
specific limits to limit potential to emit
and there are no specific up front
methodologies specified in this rule to
determine compliance.
The submitted Program is generic
concerning the types of monitoring that
are required, rather than identifying the
application of specific monitoring
approaches, providing the technical
specifications for each of the specific
allowable monitoring systems, and
requiring replicable procedures for the
approval of any alternative monitoring
system (January 25, 1995 memo from
Kathie A. Stein, Director Air
Enforcement Division entitled
‘‘Guidance on Practicable
Enforceability’’). The Program also lacks
the replicable procedures that are
necessary to ensure that (1) adequate
monitoring is required that would
accurately determine emissions under
the Program; (2) the Program is based
upon sound science and meets generally
acceptable scientific procedures for data
quality and manipulation; and (3) the
information generated by such system
meets minimum legal requirements for
admissibility in a judicial proceeding to
enforce the Program (September 23,
1987, Memorandum from J. Craig Potter,
Assistant Administrator for Air and
Radiation, and Thomas L. Adams Jr.,
Assistant Administrator for Enforcement
and Compliance Monitoring, entitled
‘‘Review of State Implementation Plans
and Revisions for Enforceability and
Legal Sufficiency’’). For example: ARM
17.8.1604 and 17.8.1712 require the
source to inspect monthly all VOC
piping components for leaks and repair
such leaks within a specific period of
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Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules
time. The rule should specify methods
more sophisticated than sight, sound
and smell to detect leaks; for example,
field gas chromatography; photo
ionization air monitoring; or portable
gas detection instrumentation.
Additionally, ARM 17.8.1713(4)
requires the owner or operator of a
registration oil or gas well facility with
a ‘‘detectible level of hydrogen sulfide
from the well’’ to submit an ‘‘air quality
analysis demonstrating compliance’’
with the ambient standards for SO2 and
hydrogen sulfide. The regulation is
ambiguous and provides no information
regarding what should go in such a
demonstration. The Program should also
ensure consistency and accuracy in the
calculations that oil and gas well
facilities conduct, for example by
including the calculations in the rule or
referencing specific AP–42 air pollutant
emission factors or American Society for
Testing Materials (ASTM) methods to
determine emissions from the various
emission units at the oil and gas well
facility.
Because of the reasons stated above,
EPA finds the MRR requirements in the
Program fail to ensure attainment and
maintenance of the NAAQS are
protected. The Program lacks language
requiring the owner or operator to
maintain the proper MRR, which would
allow the State to be able to determine
if there was an adverse impact on air
quality.
Even if the rules were federally
enforceable as required by CAA section
110(a)(2)(C), the rule must also be
enforceable as a practical matter. EPA’s
review of these proposed revisions also
focused on whether these revisions are
enforceable as a practical matter. If
limitations imposed by SIP rules are
incomplete, vague, or nonexistent,
enforcement by the States, citizens and
EPA would not be effective. Emission
limitations must be of sufficient quality
and quantity to ensure accountability.
EPA has issued several guidance
documents explaining the requirements
of practicable enforceability (e.g., June
13, 1989 Memorandum entitled,
‘‘Guidance on Limiting Potential to Emit
in New Source Permitting, from Terrell
F. Hunt, Associate Enforcement
Counsel, OECA, and John Seitz,
Director, OAQPS, to EPA Regional
Offices. Further guidance was provided
on January 25, 1995 in a memorandum
entitled, ‘‘Options for Limiting the
Potential to Emit (PTE) of a Stationary
Source Under Section 112 and Title V
of the Clean Air Act (Act),’’ from John
Seitz, Director, OAQPS and Robert I.
Van Heuvelen, Director, ORE to
Regional Air Directors).
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The standard of review in this
instance is a determination whether the
submitted Program has sufficient
practically enforceable procedures that
enable the permitting agency to
determine whether a minor source will
cause or contribute to violations of
applicable portions of the NAAQS and
the control strategy as required in 40
CFR 51.160. In the Long memo, EPA
expressed concerns that, among other
things, the submitted Program lacks the
appropriate practically enforceable
averaging times in order to determine
compliance. EPA policy expresses a
preference for short term limits,
generally daily, but not to exceed one
month (January 25, 1995 memo from
Kathie A. Stein, Director Air
Enforcement Division entitled
‘‘Guidance on Practicable
Enforceability’’). ARM17.8.1705 only
requires the owner or operator of a
registered facility to monitor and record
annual production information, as
required by MDEQ in the annual
emission inventory request. The State
only requires that production
information be gathered on a calendar
year basis and submitted to MDEQ by
the date required in the emission
inventory request. This requirement
does not enable the permitting agency to
determine whether a minor source will
cause or contribute to violations of
applicable portions of the NAAQS short
term limits or PSD increments. If MDEQ
envisions that some oil and gas well
facilities that emit less than 100 tons per
year of criteria air pollutants may be
registration eligible, the rule must also
include provisions for short term limits
to ensure that the short term NAAQS
limits and increments are met.
One of the requirements for practical
enforceability is for a minor source to
provide notice to the State before
construction begins (Stein, Guidance on
Enforceability Requirements for Limits
Potential to Emit through SIP and § 112
Rules and General Permits). The
proposed Program allows sources to
operate and emit criteria pollutants up
to 60 days before submitting a
registration or permit application;
therefore, there is no requirement that
the State be notified before construction
begins. Therefore, neither the public,
the State, nor EPA can determine if
compliance is met before construction;
thus, these limitations are not
practically enforceable.
As discussed above, any Minor NSR
SIP revision submittal must meet
section 110(l) of the CAA. Section 110(l)
of the Act indicates that EPA cannot
approve a revision of a plan if the
revision would interfere with any
applicable requirement concerning
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Sfmt 4702
attainment and reasonable further
progress (as defined in Section 171), or
any other applicable requirement of the
Act. The Long memo stated that MDEQ
should provide an appropriate analysis
showing that the proposed new rule will
not impact the NAAQS or PSD
increments. EPA expressed concerns to
MDEQ related to the cumulative effect
of numerous registration sources. For
example, the Program could allow
hundreds of unrelated emission sources
to be subject to individual emission
limitations, yet the submitted Program
lacks the appropriate practically
enforceable averaging times in order to
determine compliance with short term
NAAQS limits and PSD increments.
EPA recommended that MDEQ should
perform a screening cumulative impact
analysis showing, under the worst case
scenarios, what effect oil and gas well
facilities would have on the ozone, NO2,
SO2 and PM NAAQS and increments.
Montana has not performed such an
analysis. Therefore, EPA lacks sufficient
available information to determine that
the proposed SIP relaxation would not
interfere with any applicable
requirement concerning attainment and
maintenance of the NAAQS, PSD
increment, or any other requirement of
the Act.
Montana’s submittal did not include
modeling assumptions that will ensure
compliance with NAAQS. Examples of
assumptions which should be discussed
include the estimated number of
facilities expected to be covered under
the Program, as well as, their assumed
locations (i.e., identify potentially high
density locations). Montana did not
demonstrate what the cumulative
impacts from numerous oil and gas
facilities operating under the Program in
certain regions and statewide would
have on the NAAQS.
EPA notes that in addition to the
registration program allowing for new
sources to escape the SIP permit
requirements, ARM 17.8.1703 allows an
owner or operator of a registration
eligible facility for which a valid
Montana Air Quality Permit (MAQP)
has been issued to register with the
department and request a revocation of
the previously issued MAQP. This is a
relaxation under section 110(l), because
it provides an exemption from SIP
requirements not previously available to
sources. This SIP relaxation creates a
risk of interference with attainment and
maintenance of the NAAQS and control
strategy. EPA lacks sufficient
information to determine that this SIP
relaxation would not interfere with
attainment and maintenance of the
NAAQS, PSD increment, or any other
requirement of the Act.
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IV. Summary of Proposed Actions
EPA is proposing to disapprove
revisions and new rules as identified in
this action and as submitted by the State
of Montana on October 16, 2006 and
November 1, 2006. EPA is proposing
disapproval based upon a number of
factors, including: (1) The lack of any
objective, replicable methodology in
order to determine compliance, (2) the
lack of sufficient MRR requirements,
and (3) the lack of enforceability.
Additionally, EPA lacks sufficient
information to determine that the
requested revision to add the new oil
and gas registration program to the
Montana Minor NSR SIP will not
interfere with any applicable
requirement concerning attainment and
reasonable further progress (RFP) as
required by CAA Section 110(l), or any
other requirement of the Act. Finally,
EPA also lacks sufficient information to
make a finding that the submitted
Program will ensure protection of the
NAAQS, PSD increments, and
noninterference with the Montana SIP
control strategies.
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.);
• 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);
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• 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, New Source
Review, Minor New Source Review,
Permitting, Incorporation by reference.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 22, 2010.
James B. Martin,
Regional Administrator, Region 8.
[FR Doc. 2011–18 Filed 1–5–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R07–OAR–2010–0839; FRL–9248–7]
Finding of Substantial Inadequacy of
Implementation Plan; Call for Kansas
Section 110 State Implementation Plan
for Interstate Transport for the 1997
National Ambient Air Quality
Standards for Ozone
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
Pursuant to our authority
under the Clean Air Act (CAA), EPA is
SUMMARY:
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763
proposing to find that the Kansas State
Implementation Plan (SIP) is
substantially inadequate to satisfy the
CAA requirement to address Kansas’
significant contribution to downwind
nonattainment or interference with
maintenance in another State with
respect to the 1997 National Ambient
Air Quality Standards (NAAQS) for
ozone. The specific State
Implementation Plan deficiencies that
EPA has identified are described in this
proposal and in the proposed Federal
Implementation Plan To Reduce
Interstate Transport of Fine Particulate
Matter and Ozone. If EPA finalizes this
proposed finding of substantial
inadequacy, Kansas will be required to
revise its SIP to correct these
deficiencies no later than 12 months
following the date of signature of the
final finding of substantial inadequacy.
DATES: Comments must be received on
or before March 7, 2011.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R07–
OAR–2010–0839, by one of the
following methods:
1. https://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
2. E-mail: kramer.elizabeth@epa.gov.
3. Mail: Ms. Elizabeth Kramer,
Environmental Protection Agency, Air
Planning and Development Branch, 901
North 5th Street, Kansas City, Kansas
66101.
4. Hand Delivery or Courier: Deliver
your comments to: Ms. Elizabeth
Kramer, Environmental Protection
Agency, Air Planning and Development
Branch, 901 North 5th Street, Kansas
City, Kansas 66101. Such deliveries are
only accepted during the Regional
Office’s normal hours of operation.
Instructions: Direct your comments to
Docket ID No. EPA–R07–OAR–2010–
0839. 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 through https://
www.regulations.gov or e-mail,
information that you consider to be CBI
or otherwise protected. 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://
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]]>Agencies
[Federal Register Volume 76, Number 4 (Thursday, January 6, 2011)]
[Proposed Rules]
[Pages 758-763]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2007-0662; FRL-9248-2]
Disapproval and Promulgation of Air Quality Implementation Plans;
Montana; Revisions to the Administrative Rules of Montana--Air Quality,
Subchapter 7, Subchapter 16 and Subchapter 17
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to disapprove portions of revisions and new
rules as submitted by the State of Montana on October 16, 2006 and
November 1, 2006. Montana adopted these rules on December 2, 2005 and
March 23, 2006 and these rules became State-effective on January 1,
2006. These revisions and new rules do not meet the requirements of the
Clean Air Act and EPA's Minor New Source Review (NSR) regulations. EPA
has concluded that none of the identified elements for the submitted
revisions and new rules are
[[Page 759]]
severable from each other. The intended effect of this action is to
propose to disapprove these rules as they 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 February 7, 2011.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2007-0662, by one of the following methods:
https://www.regulations.gov. Follow the on-line
instructions for submitting comments.
E-mail: 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-
2007-0662. 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. What is being addressed in this document?
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) Minor NSR means NSR established under section 110 of the Act
and 40 CFR 51.160.
(iv) NSR means new source review, a phrase intended to encompass
the stationary source regulatory programs that regulate the
construction and modification of stationary sources as provided under
CAA section 110(a)(2)(C), CAA Title I, parts C and D, and 40 CFR 51.160
through 51.166.
(v) The initials SIP mean or refer to State Implementation Plan.
(vi) The words State or Montana mean the State of Montana, unless
the context indicates otherwise.
(vii) NAAQS means National Ambient Air Quality Standards.
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.
[[Page 760]]
h. Make sure to submit your comments by the comment period deadline
identified.
II. What is being addressed in this document?
On October 16, 2006, the State of Montana submitted revisions to
revise the Montana State Implementation Plan (SIP) and rules. This
submission contained revisions to Administrative Rules of Montana (ARM)
17.8.743(1), and new rules I-VI, codified as ARM 17.8.1601, 17.8.1602,
17.8.1603, 17.8.1604, 17.8.1605, and 17.8.1606, pertaining to the
regulation of oil and gas well facilities, and 17.8.759, pertaining to
Montana air quality permit applicability. The revisions to ARM
17.8.743(1), 17.8.1601, 17.8.1602, 17.8.1603, 17.8.1604, 17.8.1605, and
17.8.1606 provide, generally, that an owner or operator of an oil and
gas well facility for which a Montana air quality permit is required
may wait until 60 days after the well completion date before submitting
an application for a permit. EPA is proposing to act on the revisions
to these seven regulations in this notice. The Montana Board of
Environmental Review (Board) adopted these revisions to existing SIP
revisions and new rules on December 2, 2005. ARM 17.8.759 is being
addressed in a separate action (see 75 FR 9834-9843). The submission
also contains revisions to ARM 17.8.1402 pertaining to incorporation by
reference. This revision was addressed by EPA in a previous action (see
75 FR 3993-3996). In addition to these revisions, on October 16, 2006,
Montana is also withdrawing ARM 17.8.743(1)(c) regarding the
applicability of incinerators in the Montana air pollution program
rules. ARM 17.8.743(1)(c) was inadvertently included in the submission
dated May 28, 2003. The Board adopted ARM 17.8.743(1)(c) on December 6,
2002.
On November 1, 2006, the State of Montana submitted revisions to
revise the Montana SIP and rules. This submission contained revisions
to ARM 17.8.504, 17.8.505, 17.8.744, 17.8.1204 and new rules I-IX,
codified as ARM 17.8.1701, 17.8.1702, 17.8.1703, 17.8.1704,
17.8.1705,17.8.1710, 17.8.1711, 17.8.1712 and 17.8.1713 pertaining to
the regulation of oil and gas well facilities. The revision to ARM
17.8.504 pertains to air quality permit application fees; ARM 17.8.505
pertains to air quality operation fees; ARM 17.8.744(l) provides that a
Montana air quality permit is not required for facilities that register
with the department in accordance with ARM 17.8.17; and ARM 17.8.1204
addresses air quality operating permit program applicability. The Board
adopted these new rules and rule amendments on March 23, 2006. EPA is
proposing to act on all these rule submissions in this action.
EPA notes that ARM 17.8.1204 (regarding Air Quality Operating
Permit Program Applicability) and ARM 17.8.505 (regarding Air Quality
Operation Fees) are part of the Title V and Part 70 regulations which
we do not approve into the SIP. Instead, we approve operating permit
regulations under our operating permit regulations at 40 CFR part 70.
Thus, we intend to consider approval of Montana's proposed Part C
revisions pursuant to our part 70 regulations at such time as Montana
submits an appropriate request under 40 CFR 70.4(i). The revisions are
meaningless absent their regulatory context, and that regulatory
context is not part of the EPA-approved SIP and is not incorporated by
reference into 40 CFR part 52. Instead, the approval status of
Montana's part 70 Program is reflected in 40 CFR part 70, Appendix A.
Thus, because we are obligated to act on SIP submissions, we plan to
disapprove these revisions as a revision to Montana's SIP. If the State
requests to withdraw part C from the SIP revision prior to the time we
take final action, we would not be obligated to take final action
because part C would no longer be pending before the Agency as a SIP
revision. Additionally, if requested by the State, we will separately
consider these revisions as a revision to the approved operating permit
program for the State.
The November 1, 2006 submission also contains revisions to the
following rules: ARM 17.8.101, ARM 17.8.102, ARM 17.8.103, ARM
17.8.302, ARM 17.8.767, ARM 17.8.801, ARM 17.8.802, ARM 17.8.818, ARM
17.8.902 and ARM 17.8.1002 pertaining to incorporation by reference of
current federal regulations and other materials into air quality rules.
EPA is not acting on these rule submissions. These revisions were
addressed by EPA in a previous action (see 75 FR 3993-3996).
These proposed amendments to existing new rules and adoption of new
rules listed above that are the subject of this notice, hereafter
referred to as ``the Program,'' would establish a registration system
for certain facilities that presently require a minor NSR air quality
permit under the SIP regulations. The Program would establish a general
registration system for oil and gas well facilities. The Program would
allow the owner or operator of an oil or gas well facility to register
with the Montana Department of Environmental Quality (MDEQ) in lieu of
submitting a permit application and obtaining a permit to construct or
modify the source. Currently, with specific exemptions, the
administrative rules adopted under the CAA of Montana and approved by
EPA into the SIP, require the owner or operator of sources of air
pollution to obtain a permit prior to construction or modification.
III. EPA Review and Proposed Action on SIP Revisions
EPA is proposing to disapprove the revisions and new rules as
submitted by Montana on October 16, 2006 and November 1, 2006, as
identified above.
Section 110(a)(2)(C) of the Act requires that each implementation
plan include a program to regulate the construction and modification of
stationary sources, including a permit program as required by parts C
and D of title I of the Act, as necessary to assure that the NAAQS are
achieved. Parts C and D, which pertain to prevention of significant
deterioration (PSD) and nonattainment, respectively, address major NSR
programs for stationary sources, and the permitting program for
``nonmajor'' (or ``minor'') stationary sources is addressed by section
110(a)(2)(C) of the Act. We generally refer to the latter program as
the ``minor NSR'' program. A minor stationary source is a source whose
``potential to emit'' is lower than the major source applicability
threshold for a particular pollutant defined in the applicable major
NSR program.
Therefore, we evaluated the submitted revisions and new rules using
the federal regulations under CAA section 110(a)(2)(C), which require
each State to include a minor NSR program in its SIP. EPA regulations
require that a minor NSR program include:
A plan that includes ``legally enforceable procedures that
enable'' the permitting agency to determine whether a minor source will
cause or contribute to violations of applicable portions of the control
strategy, 40 CFR 51.160(a)(1).
A plan that sets forth legally enforceable procedures that
enable the State to determine whether the minor source will result in
``interference with a national ambient air quality standard,'' 40 CFR
51.160(a)(2) and, to prevent the source from doing so, 40 CFR
51.160(b).
A plan that includes a discussion of ``the basis for
determining which facilities will be subject to review,'' 40 CFR
51.160(e).
A plan that includes a discussion of ``the air quality
data and the dispersion or other air quality modeling used'' to
[[Page 761]]
meet the requirements of EPA regulations 40 CFR 51.160(f).
In addition, we reviewed the State's regulations for compliance
with the Act. Generally, SIPs must be enforceable (see section 110(a)
of the Act) and must not relax existing SIP requirements (see section
110(l) and 193 of the Act).
EPA has issued several guidance memoranda that explain the Agency's
requirements for practicable enforceability for purposes of effectively
limiting a source's potential to emit. See, e.g., June 13, 1989
Memorandum entitled, ``Guidance on Limiting Potential to Emit in New
Source Permitting, from Terrell F. Hunt, Associate Enforcement Counsel,
OECA, and John Seitz, Director, OAQPS, to EPA Regional Offices. Further
guidance was provided on January 25, 1995 in a memorandum entitled,
``Options for Limiting the Potential to Emit (PTE) of a Stationary
Source Under Section 112 and Title V of the Clean Air Act (Act),'' from
John Seitz, Director, OAQPS and Robert I. Van Heuvelen, Director, ORE
to Regional Air Directors. Although the latter memo applies to
stationary sources subject to CAA Section 112 and Title V, we are
citing this notice for the general practicable enforceability
principles.
For example, as presented in the guidance, practicable
enforceability for a source-specific permit means that the permit's
provisions must, at a minimum:
(1) Include technically accurate emission limitations;
(2) Specify the time period for the limitation (hourly, daily,
monthly, annually);
(3) Specify the method for determining compliance including
appropriate monitoring, recordkeeping and reporting (MRR);
(4) Identify the category of sources that are covered by the rule;
(5) Where coverage is optional, provide for notice to the
permitting authority of the source's election to be covered by the
rule; and
(6) Recognize the enforcement consequences relevant to the rule.
EPA reviewed the proposed new rules against the six criteria
mentioned above. This review, which is also discussed in a memo from
Richard R. Long, Director, Region 8 Air and Radiation Program, to the
Board on January 30, 2006 (Long memo), includes:
a. Specific applicability. The Rules must clearly identify the
category of sources that qualify for the rule's coverage.
b. Reporting or notice to permitting authority. The rule should
provide that a source notify the permitting authority of its coverage
by the rule.
c. Specific technically accurate emission limits. The rule must
clearly specify the emission limits that apply, and include the
specific associated compliance monitoring. A rule that allows sources
to submit the specific parameters and associated emission limits to be
monitored may not be enforceable because the rule itself does not set
specific emission limits.
d. Specific compliance monitoring. The rule must specify the
methods to determine compliance. Specifically, the rule must state the
monitoring requirements, recordkeeping requirements, reporting
requirements and test methods as appropriate.
e. Practically enforceable averaging times. The averaging time
period must readily allow for determination of compliance.
f. Clearly recognized enforcement. Violations of the emission
thresholds imposed by the rule constitute violations of permitting and
SIP requirements.
Section 110(a)(2)(A) of the Act and 40 CFR 51.160(a)(1) requires
that SIP revision submittals be enforceable. The September 23, 1987,
Memorandum from J. Craig Potter, Assistant Administrator for Air and
Radiation, and Thomas L. Adams Jr., Assistant Administrator for
Enforcement and Compliance Monitoring, entitled ``Review of State
Implementation Plans and Revisions for Enforceability and Legal
Sufficiency'' provides EPA's guidance for interpreting this provision
in the Act. EPA proposes to find that the proposed new and modified
rules do not meet the requirements of section 110(a)(2), which require
that SIP revision submittals be enforceable. First, there are no
specific up-front methodologies in the submitted Program for the State
to use to be able to determine whether a source covered by these rules
is in compliance with 40 CFR 51.160. The Program fails to meet the
enforceability requirements to assure compliance. This is because there
are no specific limits to limit production, hours of operation, fuel
consumption, etc. to ensure the facility's potential to emit remains
below major source thresholds for any particular pollutant. Second,
while ARM 17.8.1705, codified as New Rule V, requires that the owner or
operator of a registered facility shall monitor and record annual
production information for all emission points and maintain onsite
records showing daily hours of operation and daily production rates,
17.8.1705 does not have any specific limits that limit the potential to
emit. Thus, EPA finds that the testing, recordkeeping, reporting, and
monitoring provisions necessary to establish how compliance will be
determined and to ensure that the NAAQS are protected are insufficient.
The rule must clearly specify the emission limits that apply, and
include the necessary more specialized monitoring, recordkeeping, and
reporting (MRR) requirements required for an oil and gas registration
program to ensure accountability and provide a means to determine
compliance. The submitted Program is generic concerning MRR. For
example, ARM 17.8.1705 requires that the owner or operator of a
registered facility shall monitor and record annual production
information for all emission points, as required by the MDEQ in the
annual emission inventory request. ARM 17.8.1605 (Recordkeeping
requirements) only requires that the owner or operator of an oil and
gas well facility shall record, and maintain onsite or at a central
field office, a record of each monthly inspection. There are no
specific limits to limit potential to emit and there are no specific up
front methodologies specified in this rule to determine compliance.
The submitted Program is generic concerning the types of monitoring
that are required, rather than identifying the application of specific
monitoring approaches, providing the technical specifications for each
of the specific allowable monitoring systems, and requiring replicable
procedures for the approval of any alternative monitoring system
(January 25, 1995 memo from Kathie A. Stein, Director Air Enforcement
Division entitled ``Guidance on Practicable Enforceability''). The
Program also lacks the replicable procedures that are necessary to
ensure that (1) adequate monitoring is required that would accurately
determine emissions under the Program; (2) the Program is based upon
sound science and meets generally acceptable scientific procedures for
data quality and manipulation; and (3) the information generated by
such system meets minimum legal requirements for admissibility in a
judicial proceeding to enforce the Program (September 23, 1987,
Memorandum from J. Craig Potter, Assistant Administrator for Air and
Radiation, and Thomas L. Adams Jr., Assistant Administrator for
Enforcement and Compliance Monitoring, entitled ``Review of State
Implementation Plans and Revisions for Enforceability and Legal
Sufficiency''). For example: ARM 17.8.1604 and 17.8.1712 require the
source to inspect monthly all VOC piping components for leaks and
repair such leaks within a specific period of
[[Page 762]]
time. The rule should specify methods more sophisticated than sight,
sound and smell to detect leaks; for example, field gas chromatography;
photo ionization air monitoring; or portable gas detection
instrumentation. Additionally, ARM 17.8.1713(4) requires the owner or
operator of a registration oil or gas well facility with a ``detectible
level of hydrogen sulfide from the well'' to submit an ``air quality
analysis demonstrating compliance'' with the ambient standards for
SO2 and hydrogen sulfide. The regulation is ambiguous and
provides no information regarding what should go in such a
demonstration. The Program should also ensure consistency and accuracy
in the calculations that oil and gas well facilities conduct, for
example by including the calculations in the rule or referencing
specific AP-42 air pollutant emission factors or American Society for
Testing Materials (ASTM) methods to determine emissions from the
various emission units at the oil and gas well facility.
Because of the reasons stated above, EPA finds the MRR requirements
in the Program fail to ensure attainment and maintenance of the NAAQS
are protected. The Program lacks language requiring the owner or
operator to maintain the proper MRR, which would allow the State to be
able to determine if there was an adverse impact on air quality.
Even if the rules were federally enforceable as required by CAA
section 110(a)(2)(C), the rule must also be enforceable as a practical
matter. EPA's review of these proposed revisions also focused on
whether these revisions are enforceable as a practical matter. If
limitations imposed by SIP rules are incomplete, vague, or nonexistent,
enforcement by the States, citizens and EPA would not be effective.
Emission limitations must be of sufficient quality and quantity to
ensure accountability. EPA has issued several guidance documents
explaining the requirements of practicable enforceability (e.g., June
13, 1989 Memorandum entitled, ``Guidance on Limiting Potential to Emit
in New Source Permitting, from Terrell F. Hunt, Associate Enforcement
Counsel, OECA, and John Seitz, Director, OAQPS, to EPA Regional
Offices. Further guidance was provided on January 25, 1995 in a
memorandum entitled, ``Options for Limiting the Potential to Emit (PTE)
of a Stationary Source Under Section 112 and Title V of the Clean Air
Act (Act),'' from John Seitz, Director, OAQPS and Robert I. Van
Heuvelen, Director, ORE to Regional Air Directors).
The standard of review in this instance is a determination whether
the submitted Program has sufficient practically enforceable procedures
that enable the permitting agency to determine whether a minor source
will cause or contribute to violations of applicable portions of the
NAAQS and the control strategy as required in 40 CFR 51.160. In the
Long memo, EPA expressed concerns that, among other things, the
submitted Program lacks the appropriate practically enforceable
averaging times in order to determine compliance. EPA policy expresses
a preference for short term limits, generally daily, but not to exceed
one month (January 25, 1995 memo from Kathie A. Stein, Director Air
Enforcement Division entitled ``Guidance on Practicable
Enforceability''). ARM17.8.1705 only requires the owner or operator of
a registered facility to monitor and record annual production
information, as required by MDEQ in the annual emission inventory
request. The State only requires that production information be
gathered on a calendar year basis and submitted to MDEQ by the date
required in the emission inventory request. This requirement does not
enable the permitting agency to determine whether a minor source will
cause or contribute to violations of applicable portions of the NAAQS
short term limits or PSD increments. If MDEQ envisions that some oil
and gas well facilities that emit less than 100 tons per year of
criteria air pollutants may be registration eligible, the rule must
also include provisions for short term limits to ensure that the short
term NAAQS limits and increments are met.
One of the requirements for practical enforceability is for a minor
source to provide notice to the State before construction begins
(Stein, Guidance on Enforceability Requirements for Limits Potential to
Emit through SIP and Sec. 112 Rules and General Permits). The proposed
Program allows sources to operate and emit criteria pollutants up to 60
days before submitting a registration or permit application; therefore,
there is no requirement that the State be notified before construction
begins. Therefore, neither the public, the State, nor EPA can determine
if compliance is met before construction; thus, these limitations are
not practically enforceable.
As discussed above, any Minor NSR SIP revision submittal must meet
section 110(l) of the CAA. Section 110(l) of the Act indicates that EPA
cannot approve a revision of a plan if the revision would interfere
with any applicable requirement concerning attainment and reasonable
further progress (as defined in Section 171), or any other applicable
requirement of the Act. The Long memo stated that MDEQ should provide
an appropriate analysis showing that the proposed new rule will not
impact the NAAQS or PSD increments. EPA expressed concerns to MDEQ
related to the cumulative effect of numerous registration sources. For
example, the Program could allow hundreds of unrelated emission sources
to be subject to individual emission limitations, yet the submitted
Program lacks the appropriate practically enforceable averaging times
in order to determine compliance with short term NAAQS limits and PSD
increments. EPA recommended that MDEQ should perform a screening
cumulative impact analysis showing, under the worst case scenarios,
what effect oil and gas well facilities would have on the ozone,
NO2, SO2 and PM NAAQS and increments. Montana has
not performed such an analysis. Therefore, EPA lacks sufficient
available information to determine that the proposed SIP relaxation
would not interfere with any applicable requirement concerning
attainment and maintenance of the NAAQS, PSD increment, or any other
requirement of the Act.
Montana's submittal did not include modeling assumptions that will
ensure compliance with NAAQS. Examples of assumptions which should be
discussed include the estimated number of facilities expected to be
covered under the Program, as well as, their assumed locations (i.e.,
identify potentially high density locations). Montana did not
demonstrate what the cumulative impacts from numerous oil and gas
facilities operating under the Program in certain regions and statewide
would have on the NAAQS.
EPA notes that in addition to the registration program allowing for
new sources to escape the SIP permit requirements, ARM 17.8.1703 allows
an owner or operator of a registration eligible facility for which a
valid Montana Air Quality Permit (MAQP) has been issued to register
with the department and request a revocation of the previously issued
MAQP. This is a relaxation under section 110(l), because it provides an
exemption from SIP requirements not previously available to sources.
This SIP relaxation creates a risk of interference with attainment and
maintenance of the NAAQS and control strategy. EPA lacks sufficient
information to determine that this SIP relaxation would not interfere
with attainment and maintenance of the NAAQS, PSD increment, or any
other requirement of the Act.
[[Page 763]]
IV. Summary of Proposed Actions
EPA is proposing to disapprove revisions and new rules as
identified in this action and as submitted by the State of Montana on
October 16, 2006 and November 1, 2006. EPA is proposing disapproval
based upon a number of factors, including: (1) The lack of any
objective, replicable methodology in order to determine compliance, (2)
the lack of sufficient MRR requirements, and (3) the lack of
enforceability. Additionally, EPA lacks sufficient information to
determine that the requested revision to add the new oil and gas
registration program to the Montana Minor NSR SIP will not interfere
with any applicable requirement concerning attainment and reasonable
further progress (RFP) as required by CAA Section 110(l), or any other
requirement of the Act. Finally, EPA also lacks sufficient information
to make a finding that the submitted Program will ensure protection of
the NAAQS, PSD increments, and noninterference with the Montana SIP
control strategies.
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.);
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, New Source Review, Minor New Source Review,
Permitting, Incorporation by reference.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 22, 2010.
James B. Martin,
Regional Administrator, Region 8.
[FR Doc. 2011-18 Filed 1-5-11; 8:45 am]
BILLING CODE 6560-50-P
