Approval and Promulgation of Implementation Plans; Montana; Regional Haze 5-Year Progress Report State Implementation Plan, 53057-53061 [2019-21266]
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Federal Register / Vol. 84, No. 193 / Friday, October 4, 2019 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
determination that the State’s regional
haze plan is adequate to meet these
RPGs for the first implementation
period covering through 2018.
DATES: This rule is effective on
November 4, 2019.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–R08–OAR–2019–0047. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available through https://
www.regulations.gov, or please contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section for
additional availability information.
FOR FURTHER INFORMATION CONTACT: Kate
Gregory, Air and Radiation Division,
EPA, Region 8, Mailcode 8ARD–IO,
1595 Wynkoop Street, Denver, Colorado
80202–1129, (303) 312–6175,
gregory.kate@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ means the EPA.
40 CFR Part 52
I. Background
[EPA–R08–OAR–2019–0047; FRL–10000–
48–Region 8]
States are required to submit a
progress report in the form of a SIP
revision for the first implementation
period that evaluates progress towards
the RPGs for each mandatory Class I
Federal area 1 (Class I area) within the
state and for each Class I area outside
the state which may be affected by
emissions from within the state (40 CFR
51.308(g)). In addition, the provisions of
40 CFR 51.308(h) require states to
submit, at the same time as the 40 CFR
51.308(g) progress report, a
determination of the adequacy of the
state’s existing regional haze plan. The
first progress report is due 5 years after
submittal of the initial regional haze
plan. Montana declined to submit a
regional haze SIP covering all required
elements in the EPA’s Regional Haze
Rule, which resulted in the EPA
administration of the majority of the
Regional Haze program in the State
since the effective date of the Federal
(e) Expedited processing. Within 10
days (excluding Saturdays, Sundays and
legal holidays) after receipt of a request
for expedited processing, the Chief
FOIA Officer or his/her designee will:
*
*
*
*
*
■ 8. Amend § 3004.44 by revising
paragraph (a) to read as follows:
§ 3004.44
Appeals.
(a) The Commission may review any
decision of the Chief FOIA Officer or
his/her designee on its own initiative.
*
*
*
*
*
■ 9. Revise § 3004.60 to read as follows:
§ 3004.60 Chief Freedom of Information
Act Officer.
The Commission designates the
General Counsel of the Commission as
the Chief FOIA Officer. The Chief FOIA
Officer shall be responsible for the
administration of and reporting on the
Commission’s Freedom of Information
Act program.
By the Commission.
Darcie S. Tokioka,
Acting Secretary.
[FR Doc. 2019–21431 Filed 10–3–19; 8:45 am]
BILLING CODE 7710–FW–P
Approval and Promulgation of
Implementation Plans; Montana;
Regional Haze 5-Year Progress Report
State Implementation Plan
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is finalizing approval of
Montana’s Regional Haze Progress
Report (‘‘Progress Report’’), submitted
by the State of Montana through the
Montana Department of Environmental
Quality (MDEQ) on November 7, 2017,
as a revision to the Montana Regional
Haze State Implementation Plan (SIP).
Montana’s Progress Report addresses
requirements of the Clean Air Act (CAA
or Act) and the Federal Regional Haze
Rule that require each state to submit
periodic reports describing progress
towards reasonable progress goals
(RPGs) established for regional haze and
a determination of the adequacy of the
state’s existing SIP addressing regional
haze (regional haze plan). The EPA is
finalizing approval of Montana’s
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SUMMARY:
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1 Areas designated as mandatory Class I Federal
areas consist of national parks exceeding 6000
acres, wilderness areas and national memorial parks
exceeding 5000 acres, and all international parks
that were in existence on August 7, 1977 (42 U.S.C.
7472(a)). These areas are listed at 40 CFR part 81,
subpart D.
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53057
Implementation Program (FIP) of
October 18, 2012.2
On November 7, 2017, Montana
submitted its Progress Report which,
among other things, detailed the
progress made in the first
implementation period toward the longterm strategy (LTS) outlined in the
State’s regional haze plan, the visibility
improvement measured at the twelve
Class I areas within Montana, and a
determination of the adequacy of the
State’s existing regional haze plan.
In a notice of proposed rulemaking
(NPRM) published on July 9, 2019 (84
FR 32682), the EPA proposed to approve
Montana’s Progress Report. The details
of Montana’s submission and the
rationale for the EPA’s actions are
explained in the NPRM.
II. Response to Comments
Comments on the proposed
rulemaking were due on or before
August 8, 2019. The EPA received a
total of three public comment
submissions on the proposed approval.
All public comments received on this
rulemaking action are available for
review by the public and may be viewed
by following the instructions for access
to docket materials as outlined in the
ADDRESSES section of this preamble.
After reviewing the comments, the EPA
has determined that two of the comment
submissions are outside the scope of our
proposed action and/or fail to identify
any material issue necessitating a
response. We received one comment
letter from the Montana Environmental
Information Center (MEIC) and the
National Parks Conservation
Association (NPCA), containing three
significant comments that we are
responding to here. Below is a summary
of those comments and the EPA’s
responses.
Comment: In a comment letter dated
August 8, 2019, the MEIC and NPCA
stated that one of the nitrogen oxides
(NOX) control technologies included in
Montana’s report is the SmartBurn®
technology at Colstrip that ‘‘reduce[s]
NOX emissions by ‘80% to 86%.’ ’’ 3 The
commenters assert these reductions are
anecdotal, do not represent an
enforceable emission limit, and cannot
be relied on to show actual reductions
for NOX sufficient to satisfy
requirements for Montana to make
2 77
FR 57864 (September 18, 2012).
is unclear whether the commenter
understands SmartBurn® technology to be capable
of (1) reducing NOX between 80% and 86%, or (2)
improving NOX reductions from 80% to 86% (i.e.,
by six percentage points). It is also unclear whether
the commenter understands these reductions to be
relative to the emission rates immediately prior to
the SmartBurn® modifications or some even earlier
baseline.
3 It
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reasonable progress towards restoring
clean air to Class I areas. The
commenters assert EPA should not rely
on these anecdotal reductions to
demonstrate compliance, rather they
argue the reductions must be
incorporated into the facility’s permit
and actual compliance monitoring must
be required.
Response: Each state is required to
submit periodic progress reports in
accordance with the requirements of 40
CFR 51.308(g) as well as a
determination of the adequacy of the
state’s existing regional haze plan in
accordance with the requirements of 40
CFR 51.308(h). To the extent the
comment asserts that certain emission
reductions should be included in
Montana’s implementation plan in order
to make reasonable progress and
addresses the enforceability of the
reductions, these issues concern the
requirements of 40 CFR 51.308(d) and/
or 40 CFR 51.308(e) and are outside the
scope of this action.4 Compliance with
and enforcement of the emission
reductions mentioned in the comment
that are not included in a state’s
implementation plan are not covered by
40 CFR 51.308(g) unless EPA makes a
finding that the plan is not sufficient.
We are not making that finding here.
The RPGs are not enforceable.5
Montana has determined, and the EPA
agrees, that to the extent Montana is not
meeting its RPGs, the State’s failure to
meet the RPGs is attributable to wildfire.
The United States Court of Appeals for
the Ninth Circuit vacated the portions of
the Montana FIP setting BART
emissions limits for Colstrip Units 1 and
2.6 Therefore, commenter’s assertion
that Montana cannot meet its RPGs
because they depend on vacated BART
measures is a given—the RPGs currently
include the effects of measures that are
not part of the LTS. That is, the current
RPGs are not necessarily a proper
reflection of the entire suite of
determinations that may be necessary
for Montana to make reasonable
progress and may need to be revisited
once the vacated determinations have
been addressed. This obligation remains
outstanding and is outside the scope of
this action.
We think it is reasonable that
Montana submitted a progress report
addressing the elements of the plan that
4 Our proposal solicited comments on the
requirements of and our proposed determinations
regarding 40 CFR 51.308(g) and (h). 84 FR 32682
(July 9, 2019).
5 77 FR 23988, 24064–24067 (April 20, 2012).
6 National Parks Conservation Association v.
EPA, 788 F.3d 1134 (9th Cir. 2015) (vacating
portions of the Montana FIP, 81 FR 57864
(September 18, 2012)).
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are in place and enforceable. To the
extent that Montana has properly
evaluated the contents of its
implementation plan and assessed the
progress the State is making with regard
to its partial implementation plan,
Montana has fulfilled its obligations
under 40 CFR 51.308(g).
In sum, Montana has met the
applicable legal requirements because
the RPGs in the FIP are not necessarily
reflective of what is necessary for
Montana to make reasonable progress,
but to the extent of the measures in the
implementation plan, Montana has
satisfied all its requirements for
reporting on implementation and
progress. This is a reasonable approach
given where Montana is regarding
development of its regional haze
implementation plan.
While neither the SmartBurn®
controls employed at Colstrip nor the
scheduled closure of Colstrip Units 1
and 2 are relevant to the evaluation
under 40 CFR 51.308(g), we note the
following: The comments are made in
relation to Chapter 2 of the Montana
progress report 7 that provides a
description of the status of
implementation of all measures
included in the implementation plan for
achieving RPGs as required by 40 CFR
51.308(g)(1). Chapter 2 of the progress
report refers to the application of
SmartBurn® at Colstrip Unit 2, which is
subject to BART, and Colstrip Units 3
and 4, which are subject to
consideration of controls under
reasonable progress. The content of the
LTS, including any control measures
selected as BART or under reasonable
progress provisions, determines the
RPGs (typically by means of
photochemical modeling). The RPGs are
a projected outcome, rather than
visibility conditions established
directly, and the Regional Haze Rule
provides that the RPGs are not directly
enforceable.8 The rule further explains
that the RPGs will be considered by the
Administrator in evaluating the
adequacy of the measures in the
implementation plan to achieve the
progress goal adopted by the State,
which we have done in evaluating the
State’s Progress Report. Thus, we
disagree with commenters apparent
assertion that RPGs are enforceable.
Moreover, the LTS does not currently
include BART requirements for Colstrip
Units 1 and 2 because, as discussed
previously, these requirements were
vacated and remanded by the United
States Court of Appeals for the Ninth
7 SmartBurn® is mentioned in Chapter 2, pp 2–
5 and 2–8.
8 40 CFR 51.308(d)(1)(v).
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Circuit.9 In addition, in our 2012 FIP,
the EPA did not establish any additional
controls for Units 3 and 4 under
reasonable progress.10 There are
currently no control measures required
by the LTS for Colstrip in the
implementation plan for which
Montana could have provided the
status. Accordingly, there is no
deficiency in the progress report
regarding the requirements of 40 CFR
51.308(g)(1) as they pertain to the
Colstrip facility.
Though not central to our response,
we are also providing background
information regarding the NOX
reductions achieved with various
SmartBurn® configurations that have
been installed on Colstrip Unit 2, and
separately on and Units 3 and 4, which
the State discusses generally in its SIP
submittal. SmartBurn, LLC is a company
that offers NOX reduction technologies
such as combustion optimization and
overfire air. The Title V operating
permit for Colstrip 11 indicates that NOx
controls on Unit 2 are comprised of an
Alstom LNCFSTM II system (low-NOX
concentric firing system and separated
overfire air [SOFA]) modified with a
Smartburn® Low NOX combustion
system.12 The SmartBurn®
modifications were installed on Unit 2
in 2015. Emissions data in EPA’s Air
Markets Program Database (AMPD)
indicate that after 2015, the annual
emission rate for Unit 2 decreased from
0.321 lb/MMbtu to 0.154 lb/MMbtu, or
by 52.0%.13 Because of the large
decrease in the NOX emission rate, the
EPA assumes that the modifications to
Unit 2 in 2015 occurred due to
additional air staging with overfire air.
Similarly, the Title V permit indicates
that NOX controls on Unit 3 and Unit 4
are comprised of an Alstom LNCFSTM
III system (LNCFSTM with both closecoupled [CCOFA] and SOFA) modified
with a Smartburn® Low NOX
combustion system.14 LNCFSTM III was
added to Units 3 and 4 in 2007 and
2009, respectively. Emissions data from
AMPD indicates that, following the
installation of LNCFSTM III (i.e., both
CCOFA and SOFA) at Unit 3, the annual
emission rate decreased from 0.406 lb/
MMBtu to 0.168 lb/MMbtu, or by
9 NPCA v. EPA, No. 12–73710, U.S. 9th Cir.
(2015).
10 77 FR 23988, 24064–24067 (April 20, 2012), 77
FR 57864, 57902–57903 (September 18, 2012).
11 Colstrip Final Title V Operating Permit
#OP0513–14, effective July 17, 2018.
12 Title V permit, Section 2.
13 See spreadsheet created by EPA titled ‘‘AMPD
Colstrip emissions 2000 to mid–2019.xlsx’’ located
in the docket.
14 Title V permit, Section 2.
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58.6%.15 Comparable reductions were
achieved at Unit 4. However, these
reductions were achieved by LNCFSTM
III before the subsequent SmartBurn®
modifications to Unit 3 and Unit 4 in
2016 and 2017, respectively. Emissions
data for Unit 3, where the SmartBurn®
modifications have been in place
slightly longer than on Unit 4, indicate
that the annual emission rate decreased
from 0.167 lb/MMBtu to 0.150 lb/
MMbtu, or by 9.7%, though a clear
emissions trend is difficult to identify.16
The EPA assumes that these reductions
are due to combustion optimization
(with existing equipment) because the
reductions are modest and both SOFA
and CCOFA were previously installed.
The emission reductions resulting
from SmartBurn® modifications
described previously are incorporated
into Colstrip’s Clean Air Act Title V
permit and compliance monitoring is
required. The Title V permit includes a
30-day rolling average emission limit of
0.20 lb/MMbtu for Unit 2 with
associated compliance measures.17
Likewise, the Title V permit includes a
30-day rolling average emission limit of
0.18 lb/MMbtu with associated
compliance measures for Unit 3 and
Unit 4 (individually).18 As shown by the
AMPD emissions data, these emission
limits are commensurate with the actual
emission rates being achieved with the
SmartBurn® modifications at the three
units.19 However, as discussed
previously, the EPA agrees that any
reductions resulting from SmartBurn®
technologies discussed in the progress
report are not pertinent to whether the
requirements of 40 CFR 51.308(g)(1)
have been met. Furthermore, the
commenters are mistaken in suggesting
that it is sufficient for the emission
reductions to be incorporated into a
facility permit. Emissions limits or
permits must be adopted into the
implementation plan to meet the
requirements of the Regional Haze
Rule.20
Spreadsheet.
Spreadsheet.
17 Title V permit, conditions B.4, B.19, B.27, B.29,
B.32, and B.35.
18 Title V permit, conditions C.14, C.20, C.35,
C.41, C.49, C.51, C.53, C.54, C.55, C.57, C.58, and
C.59.
19 EPA spreadsheet. See charts comparing
monthly actual emissions to the 30-day rolling
average emission limits. Monthly emissions are
used as a proxy to 30-day rolling average emission
rates.
20 Under the regional haze rule, a state’s long-term
strategy must include enforceable emissions
limitations, compliance schedules, and other
measures as necessary to achieve the RPGs. 40 CFR
51.308(d)(3). Additionally, the BART Guidelines
require that states must establish an enforceable
emission limit for each subject emission unit at the
source and for each pollutant subject to review that
Finally, in 2016, the owners of
Colstrip (including Talen Energy, which
also operates Colstrip) entered into a
Consent Decree with the Sierra Club and
the Montana Environmental Information
Center, which requires closure of
Colstrip Units 1 and 2 by July 1, 2022 21
and set interim emission limits.22 This
will provide far greater NOx reductions
at the Colstrip facility than those
achieved by the SmartBurn®
modifications.
Comment: The MEIC and NPCA also
assert in the comment letter that the
increase in fine particulate matter
(PM2.5) of 47% in the State is of concern
and question the EPA’s description of
wildfire as nonanthropogenic. The
commenters allege that both the EPA
and the State are dismissive of the
increase in fine PM and that wildfire is
increasing due to climate change.
Additionally, the commenters state that
the Montana Progress Report
submission is devoid of discussion
related to wildfire as it relates to climate
and for these reasons should be rejected
by the EPA. The commenters provided
a citation in the comments, however,
the information cited was not included
with the comments submitted.
Response: While we agree that the
increase in PM2.5 in the State for the
time period listed is notable, we do not
agree that we are dismissive of the
increase in our proposed action. In our
proposed action, we explain that
Montana presented data in its Progress
Report showing that wildfire activity, as
can be examined through monitored
pollutants (organic and elemental
carbon specifically) and satellite and
webcam imagery, are present on the
majority of days selected as the 20
percent worst days.23 This means that
webcam imagery and satellite data
correlate to monitored pollutant data
and demonstrate that wildfire is a main
impediment to visibility.
Our description and assessment of
wildfire in our proposal is consistent
with the definition of wildfire in our
15 EPA
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16 EPA
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is emitted from the source. Appendix Y to part 51,
section V. Section 110(a)(2)(A) of the Clean Air Act
also requires that SIPs shall ‘‘include enforceable
emission limitations . . . as may be necessary or
appropriate to meet the applicable requirements of
[the Act].’’ While a state may include emission
limitations in Title I construction permits, the
emission limits and compliance requirements from
a permit must be included in the SIP.
21 Sierra Club v. Talen Montana, LLC et al., No.
1:13–cv–00032– DLC–JCL, D. Mon. (2016), Doc.
316–1.
22 The Consent Decree specifies a Unit 1 NO
X
emission limit of 0.20 lb/MMbtu, and a Unit 2 NOX
emission limit of 0.45 lb/MMBtu (both 30-day
rolling average). These limits became effective 30
days after the date of entry by the court, or on
October 6, 2016.
23 Montana Progress Report, pp. 4–8 to 4–13.
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53059
regulations, which when it occurs on
wildland—as it has in Montana—is a
natural event.24 25 The purpose of the
regional haze program is to protect
visibility and remedy visibility
impairment from man-made air
pollution. We agree with MDEQ’s
conclusion that the plan requires no
further revision at this time to meet the
2018 RPGs.
Comment: Finally, the commenters
allege that the State cannot meet its
regional haze RPGs in the FIP because
the FIP relies on installation of SNCR at
Colstrip Units 1 and 2. While MEIC and
NPCA acknowledge Talen’s
announcement that the two units will
close, they assert that the EPA should
not rely on closure of the EGU as a
compliance mechanism unless that
closure is incorporated into the SIP.
Response: We do not agree with
commenters that the lack of SNCR
installation at Colstrip will lead to
Montana not meeting its RPGs. We
address this issue in more detail in
response to the first comment
summarized.
The regional haze regulations require
that the periodic progress report contain
not only a description of the status of
implementation measures and emission
reductions achieved as a result of those
measures, but importantly, an
evaluation of visibility progress against
the 2018 RPGs.26 The RPGs are intended
to reflect the emission reductions in
states’ LTS. The fact that Montana’s
long-term strategy may ultimately
contain different emissions control
technologies for Colstrip than those
initially required by the EPA’s FIP does
not necessarily preclude the State from
meeting the RPGs. Furthermore, as is
shown in the NPRM for this action and
stated previously, monitored pollutants
(organic and elemental carbon,
specifically) from fire—and not
emissions from Colstrip—are the main
impediment to visibility in Montana.27
Additionally, Table 3 in the proposed
action, titled ‘‘Changes in Montana
Total Emissions, Statewide,’’ shows a
statewide decrease in NOX emissions of
32 percent between 2002 and 2014.
Additionally, as indicated in our
proposed action, in Table 5, ‘‘Visibility
Progress in Montana’s Class I Areas,’’ all
of the IMPROVE monitoring sites within
24 EPA’s regulations define a wildfire as fires that
are started by an unplanned ignition caused by
lightning; volcanoes; other acts of nature;
unauthorized activity; or accidental, human-caused
actions, or a prescribed fire that has developed into
a wildfire. A wildfire that predominantly occurs on
wildland is a natural event.
25 See 40 CFR 50.1(n).
26 40 CFR 51.308(g)(1)–(3).
27 Montana Progress Report, p. 3–9.
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the State show the State meeting the
2018 RPGs for the 20 percent best
days.28 While only two of the Class I
Areas meet the 2018 RPGs on the 20
percent worst days,29 all Class I areas
meet the RPGs when looking at the 20
percent most anthropogenically
impaired days. In addition to evaluating
the visibility conditions applying the
regulatory test that applies to the 2018
RPGs, the EPA supplemented the most
anthropogenically impaired days’ data
in the NPRM for the baseline period,
current period, and difference in
deciviews using the revised visibility
tracking metric described in the EPA’s
December 2018 guidance document.30
As explained in the NPRM for this
action, though this revised visibility
tracking metric is applicable to the
second and future implementation
periods for regional haze (and therefore
not retroactively required for progress
reports for the first regional haze
planning period), the revised tracking
metric’s focus on the days with the
highest daily anthropogenic impairment
shifts focus away from days influenced
by fire and dust events, and is therefore
a better metric for showing visibility
progress especially for Class I areas with
strong impacts from fire, as was the case
for the Class I areas within and affected
by emissions from Montana during the
first regional haze planning period. The
Class I areas are already meeting the
RPGs using the revised visibility
metrics. For the reasons cited
previously, we do not agree that the lack
of SNCR will result in the State failing
to meet its regional haze RPGs for 2018.
Though peripheral to our response,
we also note that under the EPA’s
strategic plan’s more effective
partnerships approach, the EPA has
been communicating with the State on
implementation of the regional haze
program. The EPA notes that in addition
to preparing the report that is the
subject of this SIP action, the State also
intends to develop a SIP to replace
EPA’s regional haze FIP, including
provisions for the regional haze rule and
BART requirements for Colstrip Units 1
and 2 vacated by the Ninth Circuit.31 As
of this writing, EPA has reviewed predraft SIP submission materials from the
State as it develops its SIP.
Additionally, on August 29, 2019, the
State announced the opportunity for
28 Montana
Progress Report, p. 6–1.
Progress Report, p. 6–4.
30 Technical Guidance on Tracking Visibility
Progress for the Second Implementation Period of
the Regional Haze Program (December 20, 2018),
available at: https://www.epa.gov/sites/production/
files/2018-12/documents/technical_guidance_
tracking_visibility_progress.pdf.
31 40 CFR 51.308(d) and (e).
29 Montana
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public comment on the proposed
incorporation of air pollutant emission
limits, currently in EPA’s FIP (40 CFR
52.1396), including limits on Colstrip
Units 1 and 2, into a Montana Board of
Environmental Review Board Order that
may be submitted by the State into the
SIP. The EPA intends to continue to
work with the State as it develops its
SIP for submittal.
III. Final Action
EPA is finalizing its proposed
approval of Montana’s November 7,
2017 Progress Report as meeting the
applicable regional haze requirements
set forth in 40 CFR 51.308(g) and (h).
IV. 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, the EPA’s role is to
approve state choices, provided that
they meet the criteria of the Clean Air
Act. Accordingly, this action merely
approves state law as meeting Federal
requirements and does not impose
additional requirements beyond those
imposed by state law. For that reason,
this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because SIP approvals are
exempted under Executive Order 12866;
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, described in
the Unfunded Mandates Reform Act of
1995 (Pub. L. 104–4);
• Does not have federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
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• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by December 3,
2019. Filing a petition for
reconsideration by the Administrator of
this final rule does not affect the finality
of this action for the purposes of judicial
review nor does it extend the time
within which a petition for judicial
review may be filed, and shall not
postpone the effectiveness of such rule
or action. This action may not be
challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Greenhouse gases, Incorporation by
E:\FR\FM\04OCR1.SGM
04OCR1
53061
Federal Register / Vol. 84, No. 193 / Friday, October 4, 2019 / Rules and Regulations
reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and
recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Dated: September 25, 2019.
Gregory Sopkin,
Regional Administrator, Region 8.
Statewide’’ by adding the entry
‘‘Montana regional haze 5-year progress
report’’ following the entry ‘‘Montana
Code Annotated 2–2–121(2)(e) and 2–2–
121(8)’’ to read as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
§ 52.1370
Authority: 42 U.S.C. 7401 et seq.
*
Subpart BB—Montana
Title 40 CFR part 52 is amended as
follows:
Identification of plan.
*
*
(e) * * *
*
*
2. Amend § 52.1370(e) in the table
under the centered heading ‘‘(1)
■
State effective
date
Title/subject
Notice of final
rule date
NFR citation
(1) Statewide
*
*
*
Montana regional haze 5-year progress report ...........................
*
*
*
Visibility protection.
*
*
*
*
*
(c) Montana’s November 7, 2017
Progress Report meets the applicable
regional haze requirements set forth in
§ 51.308(g) and (h).
[FR Doc. 2019–21266 Filed 10–3–19; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2018–0840; FRL–10000–
67–Region 5]
Air Plan Approval; Wisconsin;
Infrastructure SIP Requirements for
the 2012 PM2.5 NAAQS; Interstate
Transport
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving elements of
the State Implementation Plan (SIP)
submission from Wisconsin regarding
the infrastructure requirements of
section 110 of the Clean Air Act (CAA)
for the 2012 annual fine particulate
matter (PM2.5) National Ambient Air
Quality Standard (NAAQS or standard).
The infrastructure requirements are
designed to ensure that the structural
components of each state’s air quality
management program are adequate to
meet the state’s responsibilities under
the CAA. This action pertains
specifically to infrastructure
khammond on DSKJM1Z7X2PROD with RULES
SUMMARY:
VerDate Sep<11>2014
16:14 Oct 03, 2019
Jkt 250001
*
10/4/2019
*
This final rule is effective on
November 4, 2019.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R05–OAR–2018–0840. All
documents in the docket are listed on
the www.regulations.gov website.
Although listed in the index, some
information is not publicly available,
i.e., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either through
www.regulations.gov or at the
Environmental Protection Agency,
Region 5, Air and Radiation Division, 77
West Jackson Boulevard, Chicago,
Illinois 60604. This facility is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Samantha Panock, Environmental
Scientist, Attainment Planning and
Maintenance Section, Air Programs
Branch (AR–18J), Environmental
Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois
60604, (312) 353–8973,
panock.samantha@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA. This supplementary information
section is arranged as follows:
DATES:
I. What is being addressed by this document?
PO 00000
Frm 00069
Fmt 4700
*
*
[Insert Federal Register citation.]
*
requirements in the Wisconsin SIP
concerning interstate transport
provisions.
3. Amend § 52.1387 by adding
paragraph (c) to read as follows:
■
§ 52.1387
*
11/07/2017
Sfmt 4700
*
*
II. What comments did we receive on the
proposed action?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews
I. What is being addressed by this
document?
On November 26, 2018, the Wisconsin
Department of Natural Resources
(WDNR) submitted a request to EPA for
approval of its infrastructure SIP for the
2012 annual PM2.5 NAAQS. On April
30, 2019, EPA proposed to approve the
submission dealing with the first two
requirements (otherwise known as
‘‘prongs’’ one and two) of the provision
for interstate pollution transport under
CAA section 110(a)(2)(D)(i), also known
as the ‘‘good neighbor’’ provision.1
The November 26, 2018 submittal
included a demonstration that
Wisconsin’s SIP contains sufficient
major programs related to the interstate
transport of pollution. Wisconsin’s
submittal also included a technical
analysis of its interstate transport of
pollution relative to the 2012 PM2.5
NAAQS which demonstrated that
current controls are adequate for
Wisconsin to show that it meets prongs
one and two of the ‘‘good neighbor’’
provision. After review, EPA proposed
to approve Wisconsin’s request relating
1 There are four prongs to the Section
110(a)(2)(D)(i) ‘‘good neighbor’’ provision, which
require that state plans: (1) Prohibit any source or
other type of emissions activity in one state from
contributing significantly to nonattainment of the
NAAQS in another state; (2) prohibit any source or
other type of emissions activity in one state from
interfering with maintenance of the NAAQS in
another state; (3) prohibit any source or other type
of emissions activity in one state from interfering
with measures required to prevent significant
deterioration of air quality in another state; and (4)
protect visibility in another state.
E:\FR\FM\04OCR1.SGM
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]]>Agencies
[Federal Register Volume 84, Number 193 (Friday, October 4, 2019)]
[Rules and Regulations]
[Pages 53057-53061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21266]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2019-0047; FRL-10000-48-Region 8]
Approval and Promulgation of Implementation Plans; Montana;
Regional Haze 5-Year Progress Report State Implementation Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is finalizing
approval of Montana's Regional Haze Progress Report (``Progress
Report''), submitted by the State of Montana through the Montana
Department of Environmental Quality (MDEQ) on November 7, 2017, as a
revision to the Montana Regional Haze State Implementation Plan (SIP).
Montana's Progress Report addresses requirements of the Clean Air Act
(CAA or Act) and the Federal Regional Haze Rule that require each state
to submit periodic reports describing progress towards reasonable
progress goals (RPGs) established for regional haze and a determination
of the adequacy of the state's existing SIP addressing regional haze
(regional haze plan). The EPA is finalizing approval of Montana's
determination that the State's regional haze plan is adequate to meet
these RPGs for the first implementation period covering through 2018.
DATES: This rule is effective on November 4, 2019.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R08-OAR-2019-0047. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available through https://www.regulations.gov, or please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: Kate Gregory, Air and Radiation
Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver,
Colorado 80202-1129, (303) 312-6175, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means the EPA.
I. Background
States are required to submit a progress report in the form of a
SIP revision for the first implementation period that evaluates
progress towards the RPGs for each mandatory Class I Federal area \1\
(Class I area) within the state and for each Class I area outside the
state which may be affected by emissions from within the state (40 CFR
51.308(g)). In addition, the provisions of 40 CFR 51.308(h) require
states to submit, at the same time as the 40 CFR 51.308(g) progress
report, a determination of the adequacy of the state's existing
regional haze plan. The first progress report is due 5 years after
submittal of the initial regional haze plan. Montana declined to submit
a regional haze SIP covering all required elements in the EPA's
Regional Haze Rule, which resulted in the EPA administration of the
majority of the Regional Haze program in the State since the effective
date of the Federal Implementation Program (FIP) of October 18,
2012.\2\
---------------------------------------------------------------------------
\1\ Areas designated as mandatory Class I Federal areas consist
of national parks exceeding 6000 acres, wilderness areas and
national memorial parks exceeding 5000 acres, and all international
parks that were in existence on August 7, 1977 (42 U.S.C. 7472(a)).
These areas are listed at 40 CFR part 81, subpart D.
\2\ 77 FR 57864 (September 18, 2012).
---------------------------------------------------------------------------
On November 7, 2017, Montana submitted its Progress Report which,
among other things, detailed the progress made in the first
implementation period toward the long-term strategy (LTS) outlined in
the State's regional haze plan, the visibility improvement measured at
the twelve Class I areas within Montana, and a determination of the
adequacy of the State's existing regional haze plan.
In a notice of proposed rulemaking (NPRM) published on July 9, 2019
(84 FR 32682), the EPA proposed to approve Montana's Progress Report.
The details of Montana's submission and the rationale for the EPA's
actions are explained in the NPRM.
II. Response to Comments
Comments on the proposed rulemaking were due on or before August 8,
2019. The EPA received a total of three public comment submissions on
the proposed approval. All public comments received on this rulemaking
action are available for review by the public and may be viewed by
following the instructions for access to docket materials as outlined
in the ADDRESSES section of this preamble. After reviewing the
comments, the EPA has determined that two of the comment submissions
are outside the scope of our proposed action and/or fail to identify
any material issue necessitating a response. We received one comment
letter from the Montana Environmental Information Center (MEIC) and the
National Parks Conservation Association (NPCA), containing three
significant comments that we are responding to here. Below is a summary
of those comments and the EPA's responses.
Comment: In a comment letter dated August 8, 2019, the MEIC and
NPCA stated that one of the nitrogen oxides (NOX) control
technologies included in Montana's report is the SmartBurn[supreg]
technology at Colstrip that ``reduce[s] NOX emissions by
`80% to 86%.' '' \3\ The commenters assert these reductions are
anecdotal, do not represent an enforceable emission limit, and cannot
be relied on to show actual reductions for NOX sufficient to
satisfy requirements for Montana to make
[[Page 53058]]
reasonable progress towards restoring clean air to Class I areas. The
commenters assert EPA should not rely on these anecdotal reductions to
demonstrate compliance, rather they argue the reductions must be
incorporated into the facility's permit and actual compliance
monitoring must be required.
---------------------------------------------------------------------------
\3\ It is unclear whether the commenter understands
SmartBurn[supreg] technology to be capable of (1) reducing
NOX between 80% and 86%, or (2) improving NOX
reductions from 80% to 86% (i.e., by six percentage points). It is
also unclear whether the commenter understands these reductions to
be relative to the emission rates immediately prior to the
SmartBurn[supreg] modifications or some even earlier baseline.
---------------------------------------------------------------------------
Response: Each state is required to submit periodic progress
reports in accordance with the requirements of 40 CFR 51.308(g) as well
as a determination of the adequacy of the state's existing regional
haze plan in accordance with the requirements of 40 CFR 51.308(h). To
the extent the comment asserts that certain emission reductions should
be included in Montana's implementation plan in order to make
reasonable progress and addresses the enforceability of the reductions,
these issues concern the requirements of 40 CFR 51.308(d) and/or 40 CFR
51.308(e) and are outside the scope of this action.\4\ Compliance with
and enforcement of the emission reductions mentioned in the comment
that are not included in a state's implementation plan are not covered
by 40 CFR 51.308(g) unless EPA makes a finding that the plan is not
sufficient. We are not making that finding here.
---------------------------------------------------------------------------
\4\ Our proposal solicited comments on the requirements of and
our proposed determinations regarding 40 CFR 51.308(g) and (h). 84
FR 32682 (July 9, 2019).
---------------------------------------------------------------------------
The RPGs are not enforceable.\5\ Montana has determined, and the
EPA agrees, that to the extent Montana is not meeting its RPGs, the
State's failure to meet the RPGs is attributable to wildfire. The
United States Court of Appeals for the Ninth Circuit vacated the
portions of the Montana FIP setting BART emissions limits for Colstrip
Units 1 and 2.\6\ Therefore, commenter's assertion that Montana cannot
meet its RPGs because they depend on vacated BART measures is a given--
the RPGs currently include the effects of measures that are not part of
the LTS. That is, the current RPGs are not necessarily a proper
reflection of the entire suite of determinations that may be necessary
for Montana to make reasonable progress and may need to be revisited
once the vacated determinations have been addressed. This obligation
remains outstanding and is outside the scope of this action.
---------------------------------------------------------------------------
\5\ 77 FR 23988, 24064-24067 (April 20, 2012).
\6\ National Parks Conservation Association v. EPA, 788 F.3d
1134 (9th Cir. 2015) (vacating portions of the Montana FIP, 81 FR
57864 (September 18, 2012)).
---------------------------------------------------------------------------
We think it is reasonable that Montana submitted a progress report
addressing the elements of the plan that are in place and enforceable.
To the extent that Montana has properly evaluated the contents of its
implementation plan and assessed the progress the State is making with
regard to its partial implementation plan, Montana has fulfilled its
obligations under 40 CFR 51.308(g).
In sum, Montana has met the applicable legal requirements because
the RPGs in the FIP are not necessarily reflective of what is necessary
for Montana to make reasonable progress, but to the extent of the
measures in the implementation plan, Montana has satisfied all its
requirements for reporting on implementation and progress. This is a
reasonable approach given where Montana is regarding development of its
regional haze implementation plan.
While neither the SmartBurn[supreg] controls employed at Colstrip
nor the scheduled closure of Colstrip Units 1 and 2 are relevant to the
evaluation under 40 CFR 51.308(g), we note the following: The comments
are made in relation to Chapter 2 of the Montana progress report \7\
that provides a description of the status of implementation of all
measures included in the implementation plan for achieving RPGs as
required by 40 CFR 51.308(g)(1). Chapter 2 of the progress report
refers to the application of SmartBurn[supreg] at Colstrip Unit 2,
which is subject to BART, and Colstrip Units 3 and 4, which are subject
to consideration of controls under reasonable progress. The content of
the LTS, including any control measures selected as BART or under
reasonable progress provisions, determines the RPGs (typically by means
of photochemical modeling). The RPGs are a projected outcome, rather
than visibility conditions established directly, and the Regional Haze
Rule provides that the RPGs are not directly enforceable.\8\ The rule
further explains that the RPGs will be considered by the Administrator
in evaluating the adequacy of the measures in the implementation plan
to achieve the progress goal adopted by the State, which we have done
in evaluating the State's Progress Report. Thus, we disagree with
commenters apparent assertion that RPGs are enforceable.
---------------------------------------------------------------------------
\7\ SmartBurn[supreg] is mentioned in Chapter 2, pp 2-5 and 2-8.
\8\ 40 CFR 51.308(d)(1)(v).
---------------------------------------------------------------------------
Moreover, the LTS does not currently include BART requirements for
Colstrip Units 1 and 2 because, as discussed previously, these
requirements were vacated and remanded by the United States Court of
Appeals for the Ninth Circuit.\9\ In addition, in our 2012 FIP, the EPA
did not establish any additional controls for Units 3 and 4 under
reasonable progress.\10\ There are currently no control measures
required by the LTS for Colstrip in the implementation plan for which
Montana could have provided the status. Accordingly, there is no
deficiency in the progress report regarding the requirements of 40 CFR
51.308(g)(1) as they pertain to the Colstrip facility.
---------------------------------------------------------------------------
\9\ NPCA v. EPA, No. 12-73710, U.S. 9th Cir. (2015).
\10\ 77 FR 23988, 24064-24067 (April 20, 2012), 77 FR 57864,
57902-57903 (September 18, 2012).
---------------------------------------------------------------------------
Though not central to our response, we are also providing
background information regarding the NOX reductions achieved
with various SmartBurn[supreg] configurations that have been installed
on Colstrip Unit 2, and separately on and Units 3 and 4, which the
State discusses generally in its SIP submittal. SmartBurn, LLC is a
company that offers NOX reduction technologies such as
combustion optimization and overfire air. The Title V operating permit
for Colstrip \11\ indicates that NOx controls on Unit 2 are comprised
of an Alstom LNCFS\TM\ II system (low-NOX concentric firing
system and separated overfire air [SOFA]) modified with a
Smartburn[supreg] Low NOX combustion system.\12\ The
SmartBurn[supreg] modifications were installed on Unit 2 in 2015.
Emissions data in EPA's Air Markets Program Database (AMPD) indicate
that after 2015, the annual emission rate for Unit 2 decreased from
0.321 lb/MMbtu to 0.154 lb/MMbtu, or by 52.0%.\13\ Because of the large
decrease in the NOX emission rate, the EPA assumes that the
modifications to Unit 2 in 2015 occurred due to additional air staging
with overfire air.
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\11\ Colstrip Final Title V Operating Permit #OP0513-14,
effective July 17, 2018.
\12\ Title V permit, Section 2.
\13\ See spreadsheet created by EPA titled ``AMPD Colstrip
emissions 2000 to mid-2019.xlsx'' located in the docket.
---------------------------------------------------------------------------
Similarly, the Title V permit indicates that NOX
controls on Unit 3 and Unit 4 are comprised of an Alstom LNCFS\TM\ III
system (LNCFS\TM\ with both close-coupled [CCOFA] and SOFA) modified
with a Smartburn[supreg] Low NOX combustion system.\14\
LNCFS\TM\ III was added to Units 3 and 4 in 2007 and 2009,
respectively. Emissions data from AMPD indicates that, following the
installation of LNCFS\TM\ III (i.e., both CCOFA and SOFA) at Unit 3,
the annual emission rate decreased from 0.406 lb/MMBtu to 0.168 lb/
MMbtu, or by
[[Page 53059]]
58.6%.\15\ Comparable reductions were achieved at Unit 4. However,
these reductions were achieved by LNCFS\TM\ III before the subsequent
SmartBurn[supreg] modifications to Unit 3 and Unit 4 in 2016 and 2017,
respectively. Emissions data for Unit 3, where the SmartBurn[supreg]
modifications have been in place slightly longer than on Unit 4,
indicate that the annual emission rate decreased from 0.167 lb/MMBtu to
0.150 lb/MMbtu, or by 9.7%, though a clear emissions trend is difficult
to identify.\16\ The EPA assumes that these reductions are due to
combustion optimization (with existing equipment) because the
reductions are modest and both SOFA and CCOFA were previously
installed.
---------------------------------------------------------------------------
\14\ Title V permit, Section 2.
\15\ EPA Spreadsheet.
\16\ EPA Spreadsheet.
---------------------------------------------------------------------------
The emission reductions resulting from SmartBurn[supreg]
modifications described previously are incorporated into Colstrip's
Clean Air Act Title V permit and compliance monitoring is required. The
Title V permit includes a 30-day rolling average emission limit of 0.20
lb/MMbtu for Unit 2 with associated compliance measures.\17\ Likewise,
the Title V permit includes a 30-day rolling average emission limit of
0.18 lb/MMbtu with associated compliance measures for Unit 3 and Unit 4
(individually).\18\ As shown by the AMPD emissions data, these emission
limits are commensurate with the actual emission rates being achieved
with the SmartBurn[supreg] modifications at the three units.\19\
However, as discussed previously, the EPA agrees that any reductions
resulting from SmartBurn[supreg] technologies discussed in the progress
report are not pertinent to whether the requirements of 40 CFR
51.308(g)(1) have been met. Furthermore, the commenters are mistaken in
suggesting that it is sufficient for the emission reductions to be
incorporated into a facility permit. Emissions limits or permits must
be adopted into the implementation plan to meet the requirements of the
Regional Haze Rule.\20\
---------------------------------------------------------------------------
\17\ Title V permit, conditions B.4, B.19, B.27, B.29, B.32, and
B.35.
\18\ Title V permit, conditions C.14, C.20, C.35, C.41, C.49,
C.51, C.53, C.54, C.55, C.57, C.58, and C.59.
\19\ EPA spreadsheet. See charts comparing monthly actual
emissions to the 30-day rolling average emission limits. Monthly
emissions are used as a proxy to 30-day rolling average emission
rates.
\20\ Under the regional haze rule, a state's long-term strategy
must include enforceable emissions limitations, compliance
schedules, and other measures as necessary to achieve the RPGs. 40
CFR 51.308(d)(3). Additionally, the BART Guidelines require that
states must establish an enforceable emission limit for each subject
emission unit at the source and for each pollutant subject to review
that is emitted from the source. Appendix Y to part 51, section V.
Section 110(a)(2)(A) of the Clean Air Act also requires that SIPs
shall ``include enforceable emission limitations . . . as may be
necessary or appropriate to meet the applicable requirements of [the
Act].'' While a state may include emission limitations in Title I
construction permits, the emission limits and compliance
requirements from a permit must be included in the SIP.
---------------------------------------------------------------------------
Finally, in 2016, the owners of Colstrip (including Talen Energy,
which also operates Colstrip) entered into a Consent Decree with the
Sierra Club and the Montana Environmental Information Center, which
requires closure of Colstrip Units 1 and 2 by July 1, 2022 \21\ and set
interim emission limits.\22\ This will provide far greater NOx
reductions at the Colstrip facility than those achieved by the
SmartBurn[supreg] modifications.
---------------------------------------------------------------------------
\21\ Sierra Club v. Talen Montana, LLC et al., No. 1:13-cv-
00032- DLC-JCL, D. Mon. (2016), Doc. 316-1.
\22\ The Consent Decree specifies a Unit 1 NOX
emission limit of 0.20 lb/MMbtu, and a Unit 2 NOX
emission limit of 0.45 lb/MMBtu (both 30-day rolling average). These
limits became effective 30 days after the date of entry by the
court, or on October 6, 2016.
---------------------------------------------------------------------------
Comment: The MEIC and NPCA also assert in the comment letter that
the increase in fine particulate matter (PM2.5) of 47% in
the State is of concern and question the EPA's description of wildfire
as nonanthropogenic. The commenters allege that both the EPA and the
State are dismissive of the increase in fine PM and that wildfire is
increasing due to climate change. Additionally, the commenters state
that the Montana Progress Report submission is devoid of discussion
related to wildfire as it relates to climate and for these reasons
should be rejected by the EPA. The commenters provided a citation in
the comments, however, the information cited was not included with the
comments submitted.
Response: While we agree that the increase in PM2.5 in
the State for the time period listed is notable, we do not agree that
we are dismissive of the increase in our proposed action. In our
proposed action, we explain that Montana presented data in its Progress
Report showing that wildfire activity, as can be examined through
monitored pollutants (organic and elemental carbon specifically) and
satellite and webcam imagery, are present on the majority of days
selected as the 20 percent worst days.\23\ This means that webcam
imagery and satellite data correlate to monitored pollutant data and
demonstrate that wildfire is a main impediment to visibility.
---------------------------------------------------------------------------
\23\ Montana Progress Report, pp. 4-8 to 4-13.
---------------------------------------------------------------------------
Our description and assessment of wildfire in our proposal is
consistent with the definition of wildfire in our regulations, which
when it occurs on wildland--as it has in Montana--is a natural
event.24 25 The purpose of the regional haze program is to
protect visibility and remedy visibility impairment from man-made air
pollution. We agree with MDEQ's conclusion that the plan requires no
further revision at this time to meet the 2018 RPGs.
---------------------------------------------------------------------------
\24\ EPA's regulations define a wildfire as fires that are
started by an unplanned ignition caused by lightning; volcanoes;
other acts of nature; unauthorized activity; or accidental, human-
caused actions, or a prescribed fire that has developed into a
wildfire. A wildfire that predominantly occurs on wildland is a
natural event.
\25\ See 40 CFR 50.1(n).
---------------------------------------------------------------------------
Comment: Finally, the commenters allege that the State cannot meet
its regional haze RPGs in the FIP because the FIP relies on
installation of SNCR at Colstrip Units 1 and 2. While MEIC and NPCA
acknowledge Talen's announcement that the two units will close, they
assert that the EPA should not rely on closure of the EGU as a
compliance mechanism unless that closure is incorporated into the SIP.
Response: We do not agree with commenters that the lack of SNCR
installation at Colstrip will lead to Montana not meeting its RPGs. We
address this issue in more detail in response to the first comment
summarized.
The regional haze regulations require that the periodic progress
report contain not only a description of the status of implementation
measures and emission reductions achieved as a result of those
measures, but importantly, an evaluation of visibility progress against
the 2018 RPGs.\26\ The RPGs are intended to reflect the emission
reductions in states' LTS. The fact that Montana's long-term strategy
may ultimately contain different emissions control technologies for
Colstrip than those initially required by the EPA's FIP does not
necessarily preclude the State from meeting the RPGs. Furthermore, as
is shown in the NPRM for this action and stated previously, monitored
pollutants (organic and elemental carbon, specifically) from fire--and
not emissions from Colstrip--are the main impediment to visibility in
Montana.\27\ Additionally, Table 3 in the proposed action, titled
``Changes in Montana Total Emissions, Statewide,'' shows a statewide
decrease in NOX emissions of 32 percent between 2002 and
2014. Additionally, as indicated in our proposed action, in Table 5,
``Visibility Progress in Montana's Class I Areas,'' all of the IMPROVE
monitoring sites within
[[Page 53060]]
the State show the State meeting the 2018 RPGs for the 20 percent best
days.\28\ While only two of the Class I Areas meet the 2018 RPGs on the
20 percent worst days,\29\ all Class I areas meet the RPGs when looking
at the 20 percent most anthropogenically impaired days. In addition to
evaluating the visibility conditions applying the regulatory test that
applies to the 2018 RPGs, the EPA supplemented the most
anthropogenically impaired days' data in the NPRM for the baseline
period, current period, and difference in deciviews using the revised
visibility tracking metric described in the EPA's December 2018
guidance document.\30\ As explained in the NPRM for this action, though
this revised visibility tracking metric is applicable to the second and
future implementation periods for regional haze (and therefore not
retroactively required for progress reports for the first regional haze
planning period), the revised tracking metric's focus on the days with
the highest daily anthropogenic impairment shifts focus away from days
influenced by fire and dust events, and is therefore a better metric
for showing visibility progress especially for Class I areas with
strong impacts from fire, as was the case for the Class I areas within
and affected by emissions from Montana during the first regional haze
planning period. The Class I areas are already meeting the RPGs using
the revised visibility metrics. For the reasons cited previously, we do
not agree that the lack of SNCR will result in the State failing to
meet its regional haze RPGs for 2018.
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\26\ 40 CFR 51.308(g)(1)-(3).
\27\ Montana Progress Report, p. 3-9.
\28\ Montana Progress Report, p. 6-1.
\29\ Montana Progress Report, p. 6-4.
\30\ Technical Guidance on Tracking Visibility Progress for the
Second Implementation Period of the Regional Haze Program (December
20, 2018), available at: https://www.epa.gov/sites/production/files/2018-12/documents/technical_guidance_tracking_visibility_progress.pdf.
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Though peripheral to our response, we also note that under the
EPA's strategic plan's more effective partnerships approach, the EPA
has been communicating with the State on implementation of the regional
haze program. The EPA notes that in addition to preparing the report
that is the subject of this SIP action, the State also intends to
develop a SIP to replace EPA's regional haze FIP, including provisions
for the regional haze rule and BART requirements for Colstrip Units 1
and 2 vacated by the Ninth Circuit.\31\ As of this writing, EPA has
reviewed pre-draft SIP submission materials from the State as it
develops its SIP. Additionally, on August 29, 2019, the State announced
the opportunity for public comment on the proposed incorporation of air
pollutant emission limits, currently in EPA's FIP (40 CFR 52.1396),
including limits on Colstrip Units 1 and 2, into a Montana Board of
Environmental Review Board Order that may be submitted by the State
into the SIP. The EPA intends to continue to work with the State as it
develops its SIP for submittal.
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\31\ 40 CFR 51.308(d) and (e).
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III. Final Action
EPA is finalizing its proposed approval of Montana's November 7,
2017 Progress Report as meeting the applicable regional haze
requirements set forth in 40 CFR 51.308(g) and (h).
IV. 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, the EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, described in the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 3, 2019. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Greenhouse gases, Incorporation by
[[Page 53061]]
reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Dated: September 25, 2019.
Gregory Sopkin,
Regional Administrator, Region 8.
Title 40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart BB--Montana
0
2. Amend Sec. 52.1370(e) in the table under the centered heading ``(1)
Statewide'' by adding the entry ``Montana regional haze 5-year progress
report'' following the entry ``Montana Code Annotated 2-2-121(2)(e) and
2-2-121(8)'' to read as follows:
Sec. 52.1370 Identification of plan.
* * * * *
(e) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notice of
Title/subject State final rule NFR citation
effective date date
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Statewide
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Montana regional haze 5-year progress report... 11/07/2017 10/4/2019 [Insert Federal Register citation.]
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 52.1387 by adding paragraph (c) to read as follows:
Sec. 52.1387 Visibility protection.
* * * * *
(c) Montana's November 7, 2017 Progress Report meets the applicable
regional haze requirements set forth in Sec. 51.308(g) and (h).
[FR Doc. 2019-21266 Filed 10-3-19; 8:45 am]
BILLING CODE 6560-50-P
