81 FR 4225 - Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 2008 Lead, 2008 Ozone, 2010 NO2,
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 16 (January 26, 2016)
Federal Register Volume 81, Issue 16 (January 26, 2016)
| Page Range | 4225-4239 | |
| FR Document | 2016-01403 |
[Federal Register Volume 81, Number 16 (Tuesday, January 26, 2016)] [Proposed Rules] [Pages 4225-4239] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-01403] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2013-0556, FRL-9941-54-Region 8] Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 2008 Lead, 2008 Ozone, 2010 NO2, 2010 SO2 , and 2012 PM2.5 National Ambient Air Quality Standards; Montana AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is proposing to approve elements of State Implementation Plan (SIP) revisions from the State of Montana to demonstrate the State meets infrastructure requirements of the Clean Air Act (Act or CAA) for the National Ambient Air Quality Standards (NAAQS) promulgated for ozone on March 12, 2008, lead (Pb) on October 15, 2008, nitrogen dioxide (NO2 ) on January 22, 2010, sulfur dioxide (SO2 ) on June 2, 2010 and fine particulate matter (PM2.5 ) on December 14, 2012. EPA is also proposing to approve 110(a)(2)(D)(ii) for the 1997 and 2006 PM2.5 NAAQS. EPA is proposing to conditionally approve CAA section 110(a)(2)(C) and (J) with regard to PSD and element 3 of 110(a)(2)(D)(i)(II) for the 2008 ozone, 2008 Pb, 2010 NO2 , 2010 SO2 , and 2006 and 2012 PM2.5 NAAQS. EPA is proposing to disapprove element 4 of CAA section 110(a)(2)(D)(i)(II) for the 2008 ozone, 2010 NO2 , 2010 SO2, and 2006 and 2012 PM2.5 NAAQS. EPA is proposing to approve SIP revisions the State submitted to update Montana's PSD program and provisions regarding state boards. Section 110(a) of the CAA requires that each state submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by EPA. DATES: Written comments must be received on or before February 25, 2016. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08- OAR-2013-0556 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Abby Fulton, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6563, [email protected]. SUPPLEMENTARY INFORMATION: I. General Information What should I consider as I prepare my comments for EPA? 1. Submitting Confidential Business Information (CBI). Do not submit CBI to EPA through http://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on 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:Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register volume, date, and page number); Follow directions and organize your comments; Explain why you agree or disagree; Suggest alternatives and substitute language for your requested changes; Describe any assumptions and provide any technical information and/or data that you used; If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced; Provide specific examples to illustrate your concerns, and suggest alternatives; Explain your views as clearly as possible, avoiding the use of profanity or personal threats; and, Make sure to submit your comments by the comment period deadline identified. II. Background On March 12, 2008, EPA promulgated a new NAAQS for ozone, revising the levels of the primary and secondary 8-hour ozone standards from 0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436, March 27, 2008). Subsequently, on October 15, 2008, EPA revised the level of the primary and secondary Pb NAAQS from 1.5 micrograms per cubic meter ([mu]g/m\3\) to 0.15 [mu]g/m\3\ (73 FR 66964, Nov. 12, 2008). On January 22, 2010, EPA promulgated a new 1-hour primary NAAQS for NO 2 at a level of 100 parts per billion (ppb) while [[Page 4226]] retaining the annual standard of 53 ppb. The 2010 NO2 NAAQS is expressed as the three-year average of the 98th percentile of the annual distribution of daily maximum 1-hour average concentrations. The secondary NO2 NAAQS remains unchanged at 53 ppb (75 FR 6474, Feb. 9, 2010). On June 2, 2010, the EPA promulgated a revised primary SO2 standard at 75 ppb, based on a three-year average of the annual 99th percentile of one-hour daily maximum concentrations (75 FR 35520, June 22, 2010). Finally, on December 14, 2012, the EPA promulgated a revised annual PM2.5 standard by lowering the level to 12.0 [mu]g/m\3\ and retaining the 24-hour PM2.5 standard at a level of 35 [mu]g/m\3\ (78 FR 3086, Jan. 15, 2013). EPA promulgated a revised NAAQS for PM2.5 on October 17, 2006, tightening the level of the 24-hour standard to 35 [micro]g/m\3\ and retaining the level of the annual PM2.5 standard at 15 [micro]g/m\3\. EPA approved the CAA section 110(a)(2)(D)(i)(I) portion of Montana's infrastructure SIP for this NAAQS on July 30, 2013 (78 FR 45869). As discussed below, CAA section 110(a)(2)(D)(i)(I) covers elements 1 and 2 of ``interstate transport.'' In this proposed action, EPA is addressing only interstate transport elements 3 and 4 from CAA section 110(a)(2)(D)(i)(II) for the 2006 PM2.5 , 2008 ozone, 2010 SO2 and 2012 PM2.5 NAAQS. We are not addressing elements 1 and 2 for the 2008 ozone, 2010 SO2 and 2012 PM2.5 NAAQS in this action. These elements will be addressed in a later rulemaking action.\1\ --------------------------------------------------------------------------- \1\ EPA proposed approval of elements 1 and 2 of Montana's SIP for the 2008 ozone NAAQS in a notice published November 23, 2015 (80 FR 72937). --------------------------------------------------------------------------- Under sections 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure their SIPs provide for implementation, maintenance and enforcement of the NAAQS. These submissions must contain any revisions needed for meeting the applicable SIP requirements of section 110(a)(2), or certifications that their existing SIPs for PM2.5 , ozone, Pb, NO2, and SO2 already meet those requirements. EPA highlighted this statutory requirement in an October 2, 2007, guidance document entitled ``Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National Ambient Air Quality Standards'' (2007 Memo). On September 25, 2009, EPA issued an additional guidance document pertaining to the 2006 PM2.5 NAAQS entitled ``Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24- Hour Fine Particle (PM2.5 ) National Ambient Air Quality Standards (NAAQS)'' (2009 Memo), followed by the October 14, 2011, ``Guidance on Infrastructure SIP Elements Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS)'' (2011 Memo). Most recently, EPA issued ``Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2)'' on September 13, 2013 (2013 Memo). III. What is the Scope of this Rulemaking? EPA is acting upon the SIP submissions from Montana that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 ozone, 2008 Pb, 2010 NO2 , 2010 SO2 , and 2012 PM2.5 NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions ``within three years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),'' and these SIP submissions are to provide for the ``implementation, maintenance, and enforcement'' of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that ``[e]ach such plan'' submission must address. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as ``infrastructure SIP'' submissions. Although the term ``infrastructure SIP'' does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to address the nonattainment planning requirements of part D of title I of the CAA; ``regional haze SIP'' submissions required by EPA rule to address the visibility protection requirements of CAA section 169A; and nonattainment new source review (NSR) permit program submissions to address the permit requirements of CAA, title I, part D. Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.\2\ EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission. --------------------------------------------------------------------------- \2\ For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies. --------------------------------------------------------------------------- Examples of some of these ambiguities and the context in which EPA interprets the ambiguous portions of section 110(a)(1) and 110(a)(2) are discussed at length in our notice of proposed rulemaking: Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 1997 and 2006 PM2.5 , 2008 Lead, 2008 Ozone, and 2010 NO2 National Ambient Air Quality Standards; South Dakota (79 FR 71040 Dec. 1, 2014) under ``III. What is the Scope of this Rulemaking?'' With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction (SSM) that may be contrary to the CAA and EPA's policies addressing such excess emissions; (ii) existing provisions related to ``director's variance'' or ``director's discretion'' that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for Prevention of Significant Deterioration (PSD) programs that may be inconsistent with current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186, [[Page 4227]] Dec. 31, 2002, as amended by 72 FR 32526, June 13, 2007 (``NSR Reform''). IV. What infrastructure elements are required under sections 110(a)(1) and (2)? CAA section 110(a)(1) provides the procedural and timing requirements for SIP submissions after a new or revised NAAQS is promulgated. Section 110(a)(2) lists specific elements the SIP must contain or satisfy. These infrastructure elements include requirements such as modeling, monitoring, and emissions inventories, which are designed to assure attainment and maintenance of the NAAQS. The elements that are the subject of this action are listed below.110(a)(2)(A): Emission limits and other control measures. 110(a)(2)(B): Ambient air quality monitoring/data system. 110(a)(2)(C): Program for enforcement of control measures. 110(a)(2)(D): Interstate transport. 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local governments and regional agencies. 110(a)(2)(F): Stationary source monitoring and reporting. 110(a)(2)(G): Emergency powers. 110(a)(2)(H): Future SIP revisions. 110(a)(2)(J): Consultation with government officials; public notification; and PSD and visibility protection. 110(a)(2)(K): Air quality modeling/data. 110(a)(2)(L): Permitting fees. 110(a)(2)(M): Consultation/participation by affected local entities. A detailed discussion of each of these elements is contained in the next section. Two elements identified in section 110(a)(2) are not governed by the three year submission deadline of section 110(a)(1) and are therefore not addressed in this action. These elements relate to part D of Title I of the CAA, and submissions to satisfy them are not due within three years after promulgation of a new or revised NAAQS, but rather are due at the same time nonattainment area plan requirements are due under section 172. The two elements are: (1) Section 110(a)(2)(C) to the extent it refers to permit programs (known as ``nonattainment NSR'') required under part D, and (2) section 110(a)(2)(I), pertaining to the nonattainment planning requirements of part D. As a result, this action does not address infrastructure elements related to the nonattainment NSR portion of section 110(a)(2)(C) or related to 110(a)(2)(I). Furthermore, EPA interprets the CAA section 110(a)(2)(J) provision on visibility as not being triggered by a new NAAQS because the visibility requirements in part C, title 1 of the CAA are not changed by a new NAAQS. V. How did Montana address the infrastructure elements of sections 110(a)(1) and (2)? The Montana Department of Environmental Quality (Department or MDEQ) submitted certification of Montana's infrastructure SIP for the 2008 Pb NAAQS on December 19, 2011, 2008 ozone NAAQS on January 3, 2013, 2010 NO 2 NAAQS on June 4, 2013, 2010 SO2 NAAQS on July 15, 2013, and 2012 PM2.5 on December 17, 2015. Montana's infrastructure certifications demonstrate how the State, where applicable, has plans in place that meet the requirements of section 110 for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS. These plans reference the current Administrative Rules of Montana (ARM) and Montana Code Annotated (MCA). These submittals are available within the electronic docket for today's proposed action at www.regulations.gov. The ARM and MCA referenced in the submittals are publicly available at http://www.mtrules.org/ and http://leg.mt.gov/bills/mca_toc/index.htm. Montana's SIP, air pollution control regulations, and statutes that have been previously approved by EPA and incorporated into the Montana SIP can be found at 40 CFR 52.1370. VI. Analysis of the State Submittals 1. Emission limits and other control measures: Section 110(a)(2)(A) requires SIPs to include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance as may be necessary or appropriate to meet the applicable requirements of this Act. Specific control measures adopted in Board of Environmental Review (BER) orders and multiple SIP-approved state air quality regulations within the ARM and cited in Montana's certifications provide enforceable emission limitations and other control measures, means of techniques, schedules for compliance, and other related matters necessary to meet the requirements of the CAA section 110(a)(2)(A) for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS, subject to the following clarifications. First, this infrastructure element does not require the submittal of regulations or emission limitations developed specifically for attaining the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. Montana's certifications (contained within this docket) generally list provisions and enforceable control measures within its SIP which regulate pollutants through various programs, including its stationary source permit program which requires sources to demonstrate emissions will not cause or contribute to a violation of any NAAQS (ARM 17.8.749). This suffices, in the case of Montana, to meet the requirements of section 110(a)(2)(A) for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. Second, as previously discussed, EPA is not proposing to approve or disapprove any existing state rules with regard to director's discretion or variance provisions. A number of states, including Montana, have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109, Nov. 24, 1987), and the agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible. Finally, in this action, EPA is also not proposing to approve or disapprove any existing state provision with regard to excess emissions during SSM of operations at a facility. A number of states, including Montana, have SSM provisions which are contrary to the CAA and existing EPA guidance \3\ and the agency is addressing such state regulations separately (80 FR 33840, June 12, 2015). --------------------------------------------------------------------------- \3\ Steven Herman, Assistant Administrator for Enforcement and Compliance Assurance, and Robert Perciasepe, Assistant Administrator for Air and Radiation, Memorandum to EPA Air Division Directors, ``State Implementation Plans (SIPs): Policy Regarding Emissions During Malfunctions, Startup, and Shutdown.'' (September 20, 1999). --------------------------------------------------------------------------- Therefore, EPA is proposing to approve Montana's infrastructure SIP for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS with respect to the general requirement in section 110(a)(2)(A) to include enforceable emission limitations and other control measures, means, or techniques to meet the applicable requirements of this element. 2. Ambient air quality monitoring/data system: Section 110(a)(2)(B) requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to ``(i) monitor, compile, and analyze data on [[Page 4228]] ambient air quality, and (ii) upon request, make such data available to the Administrator.'' On an annual basis, the Department evaluates trends in industrial and economic development, meteorology, and population growth, and conducts other scientific, social, and geographic observations regarding areas of the State which may be adversely affected by the impact of criteria pollutants. The Department, with participation and input from local county air pollution control program staff and other interested persons, develops decisions regarding monitor type, location, and schedules for monitoring air quality in these hotspots. Montana's annual monitoring network plan (AMNP), is made available by the Department for public review and comment prior to submission to EPA. EPA approved 2015 network changes through an AMNP response letter (contained within the docket) mailed to the Department on November 25, 2015. Further, in accordance with 40 CFR 58.10, beginning in July 2008, and every five years thereafter, Montana develops a periodic network assessment to ensure the effective implementation of an adequate ambient air quality surveillance system. The periodic network assessment is made available by the Department for public review and comment prior to submission to EPA. Pursuant to its Quality Assurance Project Plans, the Department makes arrangements to operate and maintain federal reference monitors and establishes federally-approved protocols for sample collection, handling, and analysis. Air monitoring data is submitted to EPA's national ``AIRS'' database. The provisions in state law for the collection and analysis of ambient air quality data are contained in the MT CAA, 75-2-101 et seq., MCA, and specifically, 75-2-112, MCA, Powers and Responsibilities of Department. Montana's air monitoring programs and data systems meet the requirements of CAA section 110(a)(2)(B). Therefore, EPA is proposing to approve Montana's infrastructure SIP for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS with respect to the general requirements in section 110(a)(2)(B). 3. Program for enforcement of control measures: Section 110(a)(2)(C) requires SIPs to include a program to provide for the enforcement of the measures described in subparagraph (A), and regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure NAAQS are achieved, including a permit program as required in parts C and D. To generally meet the requirements of section 110(a)(2)(C), the State is required to have SIP-approved PSD, nonattainment NSR, and minor NSR permitting programs adequate to implement the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. As explained elsewhere in this action, EPA is not evaluating nonattainment related provisions, such as the nonattainment NSR program required by part D of the Act. EPA is evaluating the State's PSD program as required by part C of the Act, and the State's minor NSR program as required by 110(a)(2)(C). PSD Requirements With respect to Elements (C) and (J), the EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of Element D(i)(II) may also be satisfied by demonstrating the air agency has a complete PSD permitting program correctly addressing all regulated NSR pollutants. Montana has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including greenhouse gases (GHGs). On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions. Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also said that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs (anyway sources) contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT). In accordance with the Supreme Court decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) issued an amended judgment vacating the regulations that implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers sources that are required to obtain a PSD permit based on emissions of pollutants other than GHGs. Step 2 applied to sources that emitted only GHGs above the thresholds triggering the requirement to obtain a PSD permit. The amended judgment preserves, without the need for additional rulemaking by the EPA, the application of the BACT requirement to GHG emissions from Step 1 or ``anyway'' sources. With respect to Step 2 sources, the D.C. Circuit's amended judgment vacated the regulations at issue in the litigation, including 40 CFR 51.166(b)(48)(v), ``to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emission increase from a modification.'' The EPA is planning to take additional steps to revise federal PSD rules in light of the Supreme Court opinion and subsequent D.C. Circuit judgment. Some states have begun to revise their existing SIP-approved PSD programs in light of these court decisions, and some states may prefer not to initiate this process until they have more information about the planned revisions to EPA's PSD regulations. The EPA is not expecting states to have revised their PSD programs in anticipation of the EPA's planned actions to revise its PSD program rules in response to the court decisions. At present, the EPA has determined the State's SIP is sufficient to satisfy Elements (C), (D)(i)(II) element 3, and (J) with respect to GHGs. This is because the PSD permitting program previously approved by the EPA into the SIP continues to require that PSD permits issued to ``anyway sources'' contain limitations on GHG emissions based on the application of BACT. The SIP contains the PSD requirements for applying the BACT requirement to greenhouse gas emissions from ``anyway sources'' that are necessary at this time. The application of those requirements is not impeded by the presence of other previously- approved provisions regarding the permitting of Step 2 sources. Accordingly, the Supreme Court decision and subsequent D.C. Circuit judgment do not prevent the EPA's approval of Montana's infrastructure SIP as to the requirements of Elements (C), (D)(i)(II) element 3 and (J). In our July 22, 2011 rulemaking titled ``Implementation Plan Revisions; Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient Air Quality Standard; Montana'' (76 FR 43918) we disapproved the Montana infrastructure SIP for the 1997 ozone [[Page 4229]] NAAQS for elements (C) and (J) on the basis that Montana's SIP-approved PSD program did not properly regulate nitrogen oxides as an ozone precursor. For the same reason, we later disapproved Montana's infrastructure SIP for the 1997 and 2006 PM2.5 NAAQS for elements (C) and (J) in our July 30, 2013 rulemaking titled ``Promulgation of State Implementation Plan Revisions; Infrastructure requirements for the 1997 and 2006 P.M.2.5 National Ambient Air Quality Standards; Montana'' (78 FR 45864). On January 29, 2015, (80 FR 4793), we approved a Montana SIP revision that addressed the PSD requirements of the Phase 2 Ozone Implementation Rule promulgated in 2005 (70 FR 71612). As a result, the approved Montana PSD program meets current requirements for ozone. Finally, we evaluate the PSD program with respect to current requirements for PM2.5 . In particular, on May 16, 2008, EPA promulgated the rule, ``Implementation of the New Source Review Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5 )'' (73 FR 28321) and on October 20, 2010 EPA promulgated the rule, ``Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5 )--Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)'' (75 FR 64864). EPA regards adoption of these PM2.5 rules as a necessary requirement when assessing a PSD program for the purposes of element (C). On January 4, 2013, the U.S. Court of Appeals, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), issued a judgment that remanded EPA's 2007 and 2008 rules implementing the 1997 PM2.5 NAAQS. The court ordered EPA to ``repromulgate these rules pursuant to Subpart 4 consistent with this opinion.'' Id. at 437. Subpart 4 of part D, Title 1 of the CAA establishes additional provisions for particulate matter nonattainment areas. The 2008 implementation rule addressed by the court decision, ``Implementation of New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5 ),'' (73 FR 28321, May 16, 2008), promulgated NSR requirements for implementation of PM2.5 in nonattainment areas (nonattainment NSR) and attainment/unclassifiable areas (PSD). As the requirements of Subpart 4 only pertain to nonattainment areas, EPA does not consider the portions of the 2008 Implementation rule that address requirements for PM2.5 attainment and unclassifiable areas to be affected by the court's opinion. Moreover, EPA does not anticipate the need to revise any PSD requirements promulgated in the 2008 Implementation rule in order to comply with the court's decision. Accordingly, EPA's proposed approval of Montana's infrastructure SIP as to elements C or J with respect to the PSD requirements promulgated by the 2008 Implementation rule does not conflict with the court's opinion. The court's decision with respect to the nonattainment NSR requirements promulgated by the 2008 Implementation rule also does not affect EPA's action on the present infrastructure action. EPA interprets the Act to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program, from infrastructure SIP submissions due three years after adoption or revision of a NAAQS. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which would be due by the dates statutorily prescribed under subpart 2 through 5 under part D, extending as far as 10 years following designations for some elements. The second PSD requirement for PM2.5 is contained in EPA's October 20, 2010 rule, ``Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5 )--Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)'' (75 FR 64864). EPA regards adoption of the PM2.5 increments as a necessary requirement when assessing a PSD program for the purposes of element (C). On August 21, 2012, Montana submitted revisions to EPA which addressed the requirements of the 2008 PM2.5 NSR Implementation Rule and the 2010 Increment Rule. Portions of the 2010 Increment rule were vacated by the Federal Courts (Sierra Club v. EPA). EPA subsequently revised the affected NSR-PSD rules accordingly (78 FR 73698, Dec. 9, 2013). On March 24, 2015, Montana submitted revisions which addressed the Court's decision and supersedes and replaces these aspects of the August 21, 2012 submittal. These submittals are available within this docket. In this action, we propose to approve the necessary portions of Montana's August 21, 2012 and March 24, 2015 submittals to reflect the 2008 PM2.5 Implementation Rule and the 2010 PM2.5 Increment Rule; specifically 40 CFR part 166, paragraphs (b)(14)(i), (ii), (iii), (b)(15)(i), (ii), (b)(23)(i), (b)(49)(i), (vi), and paragraph (c)(1). EPA is proposing to approve revisions to: ARM 17.8.801(3), 17.8.801(21), 17.8.801(27), 17.8.804(1), ARM 17.8.818(7)(a)(iv)-(xi), 17.8.822(9), 17.8.822(10), 17.8.822(11), 17.8.822(12), and 17.8.825(4) from the August 21, 2012 submittal. We propose no action on revisions to ARM 17.8.818(7)(a)(iii) and 17.8.820(2) because they were superseded by the March 24, 2015 submittal. We are not proposing to act on any other portions of the August 21, 2012 submittal. EPA is proposing to approve revisions from the March 24, 2015 submittal to ARM 17.8.818(7)(a)(iii) on the condition that the State adopts and submits specific revisions within one year of EPA's final action on these infrastructure submittals; specifically to remove the phrase ``24-hour average'' in ARM 17.8.818(7)(a)(iii) .\4\ We propose no action on ARM 17.8.820(2) because it deletes a section of the ARM which was never approved into the State's SIP. The submitted revisions make Montana's PSD program up to date with respect to current requirements for PM2.5 . --------------------------------------------------------------------------- \4\ See ``Section 128 and 2012 PM2.5 Cover Letter and PSD Commitment Letter'' submitted to EPA on December 17, 2015, contained within this docket. --------------------------------------------------------------------------- EPA is proposing to approve Montana's SIP for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS with respect to the requirement in section 110(a)(2)(C) to include a PSD permit program in the SIP as required by part C of the Act on the condition that the State adopts and submits revisions to ARM 17.8.818(7)(a)(iii) as previously described. Minor NSR The State has a SIP-approved minor NSR program, adopted under section 110(a)(2)(C) of the Act. The minor NSR program was originally approved by EPA on March 22, 1972. Since approval of the minor NSR program, the State and EPA have relied on the program to assure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the NAAQS. EPA is proposing to approve Montana's infrastructure SIP for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS with respect to the general requirement in section 110(a)(2)(C) to include a program in the SIP that regulates the enforcement, modification, and construction of any stationary source as necessary to assure that the NAAQS are achieved. 4. Interstate Transport: The interstate transport provisions in CAA section 110(a)(2)(D)(i) (also called ``good neighbor'' provisions) require each state [[Page 4230]] to submit a SIP that prohibits emissions that will have certain adverse air quality effects in other states. CAA section 110(a)(2)(D)(i) identifies four distinct elements related to the impacts of air pollutants transported across state lines. The two elements under 110(a)(2)(D)(i)(I) require SIPs to contain adequate provisions to prohibit any source or other type of emissions activity within the state from emitting air pollutants that will (element 1) contribute significantly to nonattainment in any other state with respect to any such national primary or secondary NAAQS, and (element 2) interfere with maintenance by any other state with respect to the same NAAQS. The two elements under 110(a)(2)(D)(i)(II) require SIPs to contain adequate provisions to prohibit emissions that will interfere with measures required to be included in the applicable implementation plan for any other state under part C (element 3) to prevent significant deterioration of air quality or (element 4) to protect visibility. In this action, EPA is addressing all four elements of CAA section 110(a)(2)(D)(i) with regard to the 2008 Pb and 2010 NO2 NAAQS. EPA is addressing only elements 3 and 4 of CAA section 110(a)(2)(D)(i)(II) for the 2008 ozone, 2010 SO2 and 2012 PM2.5 NAAQS. We will also address elements 3 and 4 for the 2006 PM2.5 NAAQS, because EPA did not address these elements as part of the July 30, 2013 action in which we approved elements 1 and 2 for the 2006 PM2.5 NAAQS (78 FR 45869). We are not addressing elements 1 and 2 for the 2008 ozone \5\ 2010 SO2 and 2012 PM2.5 NAAQS in this action. These elements will be addressed in a later rulemaking. --------------------------------------------------------------------------- \5\ EPA proposed approval of elements 1 and 2 of Montana's SIP for the 2008 ozone NAAQS in a notice published November 23, 2015 (80 FR 72937). --------------------------------------------------------------------------- A. Evaluation of Significant Contribution to Nonattainment and Interference With Maintenance 2008 Pb NAAQS Montana's analysis of potential interstate transport for the 2008 Pb NAAQS discussed the lack of sources with significant Pb emissions near the State's borders. Montana's analysis is available in the docket for this action. As noted in our 2011 Memo, there is a sharp decrease in Pb concentrations, at least in the coarse fraction, as the distance from a Pb source increases. For this reason, EPA found that the ``requirements of subsection (2)(D)(i)(I) (prongs 1 and 2) could be satisfied through a state's assessment as to whether or not emissions from Pb sources located in close proximity to their state borders have emissions that impact the neighboring state such that they contribute significantly to nonattainment or interfere with maintenance in that state.'' \6\ In that guidance document, EPA further specified that any source appeared unlikely to contribute significantly to nonattainment unless it was located less than 2 miles from a state border and emitted at least 0.5 tons per year of Pb. Montana's 110(a)(2)(D)(i)(I) analysis specifically noted that there are no sources in the State that meet both of these criteria. EPA concurs with the State's analysis and conclusion that no Montana sources have the combination of Pb emission levels and proximity to nearby nonattainment or maintenance areas to contribute significantly to nonattainment in or interfere with maintenance by other states for this NAAQS. Montana's SIP is therefore adequate to ensure that such impacts do not occur. We are proposing to approve Montana's submission in that its SIP meets the requirements of section 110(a)(2)(D)(i) for the 2008 Pb NAAQS. --------------------------------------------------------------------------- \6\ 2011 Memo, at pg 8. --------------------------------------------------------------------------- 2010 NO2 NAAQS Montana's 2010 NO2 transport analysis for elements 1 and 2 of 110(a)(2)(D)(i) describes how sources in the State are subject to various permitting requirements. Montana asserts that these requirements prevent sources from emitting NO2 in amounts that would contribute significantly to nonattainment or interfere with maintenance of the NAAQS in other states. The State's analysis is available in the docket for this action. EPA concurs with the conclusion of Montana's 2010 NO2 transport analysis. Due to Montana's limited technical analysis, EPA considered additional factors before reaching this conclusion, specifically NO2 monitoring data from Montana and surrounding states. EPA notes that the highest monitored NO2 design values in each state bordering or near Montana are significantly below the NAAQS (see Table 1). This fact supports the State's contention that significant contribution to nonattainment or interference with maintenance of the NO2 NAAQS from Montana is unlikely. As shown in Table 1, the maximum design values in states bordering Montana are well below the 2010 NO2 NAAQS. In addition, no areas in the U.S. have been designated nonattainment for the 2010 NO2 NAAQS. As the states near Montana are not only attaining, but also having no trouble maintaining the NAAQS, there are no areas to which Montana could significantly contribute to nonattainment or interfere with maintenance of the 2010 NO2 NAAQS. --------------------------------------------------------------------------- \7\ Idaho's maximum design value was calculated using EPA's AirData Web site, at http://www.epa.gov/airquality/airdata/ad_rep_mon.html. Table 1--Highest Monitored 2010 NO2 NAAQS Design Values ------------------------------------------------------------------------ 2012-2014 Design % of NAAQS State value (100 ppb) ------------------------------------------------------------------------ Idaho............................. 43 ppb \7\.......... 43 North Dakota...................... 35 ppb.............. 35 South Dakota...................... 38 ppb.............. 38 Wyoming........................... 35 ppb.............. 35 ------------------------------------------------------------------------ * Source: http://www.epa.gov/airtrends/values.html. [[Page 4231]] In addition to the monitored levels of NO2 in states near Montana being well below the NAAQS, Montana's highest official design value from 2012-2014 was also significantly below this NAAQS (7 ppb).\8\ --------------------------------------------------------------------------- \8\ http://www.epa.gov/airtrends/values.html. --------------------------------------------------------------------------- Based on all of these factors, EPA concurs with the State's conclusion that Montana does not contribute significantly to nonattainment or interfere with maintenance of the 2010 NO2 NAAQS in other states. EPA is therefore proposing to determine that Montana's SIP includes adequate provisions to prohibit sources or other emission activities within the State from emitting NO2 in amounts that will contribute significantly to nonattainment in or interfere with maintenance by any other state with respect to the NO2 NAAQS. B. Evaluation of Interference With Measures To Prevent Significant Deterioration (PSD) With regard to the PSD portion of CAA section 110(a)(2)(D)(i)(II), this requirement may be met by a state's confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to a comprehensive EPA-approved PSD permitting program in the SIP that applies to all regulated new source review (NSR) pollutants and that satisfies the requirements of EPA's PSD implementation rules.\9\ As noted in the discussion for infrastructure element (C) earlier in this notice, EPA is proposing to conditionally approve CAA section 110(a)(2) element (C) for Montana's infrastructure SIP for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 , and 2012 PM2.5 NAAQS with respect to PSD requirements. As discussed in detail in that section, Montana's PSD program will meet the current structural requirements of 110(a)(2)(C) for PM2.5 on the condition that the State adopts and submits specific revisions within one year of EPA's final action on these infrastructure submittals to correct the language in ARM 17.8.818(7)(a)(iii). We are also proposing to conditionally approve Montana's infrastructure SIP as meeting the 110(a)(2)(D)(i)(II) element 3 (PSD) requirements for 2006 24-hour PM2.5 NAAQS. --------------------------------------------------------------------------- \9\ See 2013 Memo. --------------------------------------------------------------------------- As stated in the 2013 Memo, in-state sources not subject to PSD for any one or more of the pollutants subject to regulation under the CAA because they are in a nonattainment area for a NAAQS related to those particular pollutants may also have the potential to interfere with PSD in an attainment or unclassifiable area of another state. One way a state may satisfy element 3 with respect to these sources is by citing an air agency's EPA-approved nonattainment NSR provisions addressing any pollutants for which the state has designated nonattainment areas. Montana has a SIP-approved nonattainment NSR program which ensures regulation of major sources and major modifications in nonattainment areas, and therefore satisfies element 3 with regard to this requirement.\10\ --------------------------------------------------------------------------- \10\ See ARM 17.8.901-906. --------------------------------------------------------------------------- EPA is proposing to conditionally approve the infrastructure SIP submission with regard to the requirements of element 3 of section 110(a)(2)(D)(i) for the 2006 24-hour PM2.5 , 2008 Pb, 2008 Ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. C. Evaluation of Interference With Measures To Protect Visibility The determination of whether the CAA section 110(a)(2)(D)(i)(II) requirement for visibility is satisfied is closely connected to EPA's regional haze program. Under the regional haze program, each state with a Class I area is required to submit a regional haze SIP with reasonable progress goals for each such area that provides for an improvement in visibility for the most impaired days and ensures no degradation of the best days. CAA section 169A. Because of the often significant impacts on visibility from the interstate transport of pollutants, we interpret the provisions of CAA section 110(a)(2)(D)(i)(II) described above as requiring states to include in their SIPs measures to prohibit emissions that would interfere with the reasonable progress goals set to protect Class I areas in other states. This is consistent with the requirements in the regional haze program which explicitly require each state to address its share of the emission reductions needed to meet the reasonable progress goals for surrounding Class I areas. 64 FR 35714, 35735 (July 1, 1999). Montana did not submit a regional haze SIP to EPA, which in turn required EPA to promulgate a federal implementation plan (FIP) to satisfy the regional haze requirements for the State. EPA finalized its regional haze FIP for Montana in a rule published September 18, 2012 (77 FR 57864). Several parties filed petitions for review of the Montana regional haze FIP. In Nat'l Parks Conservation Ass'n v. EPA, 788 F.3d 1134 (9th Cir. 2015), the U.S. Court of Appeals for the Ninth Circuit vacated and remanded to EPA certain portions of the regional haze FIP setting NOX and SO2 emission limits at two facilities in Montana. EPA is currently working to address the remand of these portions of the Montana regional haze FIP in accordance with the court's decision. In its 2008 ozone, 2010 SO2 and 2010 NO2 NAAQS infrastructure certifications, Montana asserted that each of these pollutants was ``generally insignificant'' related to impacts on visibility impairment, emitted in limited amounts in the state, and that significant impacts from each of these pollutants are ``mostly located away'' from state borders. In its February 10, 2010 certification for the 2006 PM2.5 NAAQS, the State did not directly address visibility impacts from Montana to other states, and instead generally addressed element 110(a)(2)(D)(i). In its 2008 Pb NAAQS certification, Montana cited the 2011 Memo in noting the general insignificance of Pb-related impacts on visibility impairment, and stated that significant impacts from Pb emissions from stationary sources are expected to be limited to short distances from the source. Montana affirmed that it did not contain sources with 0.5 tpy or greater lead emissions located within two miles of the State's border and therefore concluded that it met the requirements of 110(a)(2)(D)(i)(II) with respect to visibility for the 2008 Pb NAAQS. In its 2012 PM2.5 NAAQS certification, Montana asserted that their Visibility Plan and FIP, which is in place to satisfy requirements of the EPA Regional Haze Program (77 FR 57863, Sept. 18, 2012), demonstrate that sources in Montana do not interfere with visibility protection in other states. However, they acknowledge that, in accordance with EPA's 2013 infrastructure SIP guidance, a FIP cannot be relied upon to meet the requirements of element 110(a)(2)(D)(i)(II) related to visibility and therefore the requirements of element 4 are not met. EPA disagrees with the State's assertions that NO2 , SO2 and ozone are generally insignificant in their impacts on visibility impairment. See 77 FR at 23995, 24053-54 (EPA determined in its regional haze FIP rulemaking that Montana emissions have impacts at Class I areas in other states). Montana's claim that significant impacts from these three pollutants are located away from state borders is conclusory and not supported by relevant information or analysis. As the State does not have a fully approved regional haze SIP, and has not otherwise demonstrated that its SIP satisfies the visibility requirement of section 110(a)(2)(D)(i)(II), EPA proposes [[Page 4232]] to disapprove this portion of Montana's SIP for the 2006 PM2.5 , 2008 ozone, 2010 NO2 and 2010 SO2 NAAQS. Because EPA in the Montana regional haze FIP has and will continue to address visibility impairment from Montana sources in Class I areas outside of the State, this disapproval will not require further action from the State, and does not create a new FIP obligation for EPA. Regarding the 2008 Pb NAAQS, EPA agrees that significant impacts from Pb emissions from stationary sources are expected to be limited to short distances from the source and most, if not all, Pb stationary sources are located at distances from Class I areas such that visibility impacts would be negligible. Further, when evaluating the extent to which Pb could impact visibility, EPA has found Pb-related visibility impacts insignificant (e.g., less than 0.10 percent).\11\ Montana does not have any major sources of Pb located within ten miles of a neighboring state's Class I area. EPA proposes to approve Montana's conclusion that it does not have any significant sources of lead emissions within 2 miles of its border and that it therefore does not have emissions of Pb that would interfere with the requirements of section 110(a)(2)(D)(i)(II) with respect to visibility. --------------------------------------------------------------------------- \11\ 2013 Memo at 33. --------------------------------------------------------------------------- EPA agrees with Montana's assertion that its SIP does not satisfy the visibility requirements of section 110(a)(2)(D)(i)(II) for the 2012 PM2.5 NAAQS. EPA proposes to disapprove this portion of the Montana SIP. 5. Interstate and International transport provisions: CAA section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with the applicable requirements of CAA sections 126 and 115 (relating to interstate and international pollution abatement). Specifically, CAA section 126(a) requires new or modified major sources to notify neighboring states of potential impacts from the source. Section 126(a) of the CAA requires notification to affected, nearby states of major proposed new (or modified) sources. Sections 126(b) and (c) pertain to petitions by affected states to the Administrator of the EPA (Administrator) regarding sources violating the ``interstate transport'' provisions of section 110(a)(2)(D)(i). Section 115 of the CAA similarly pertains to international transport of air pollution. As required by 40 CFR 51.166(q)(2)(iv), Montana's SIP-approved PSD program requires notice to states whose lands may be affected by the emissions of sources subject to PSD.\12\ This suffices to meet the notice requirement of section 126(a). --------------------------------------------------------------------------- \12\ See Administrative Rule of Montana (``ARM'') 17.8.826(2)(d). --------------------------------------------------------------------------- Montana has no pending obligations under sections 126(c) or 115(b); therefore, its SIP currently meets the requirements of those sections. In summary, the SIP meets the requirements of CAA section 110(a)(2)(D)(ii), and EPA is therefore proposing approval of this element for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. EPA is also proposing to approve the Montana SIP as meeting the requirements of section 110(a)(2)(D)(ii) for the 1997 and 2006 PM2.5 NAAQS. Montana submitted an infrastructure certification generally addressing CAA section 110(a)(2)(D) for the 1997 and 2006 PM2.5 NAAQS on February 10, 2010. 6. Adequate resources: Section 110(a)(2)(E)(i) requires states to provide necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out the SIP (and is not prohibited by any provision of federal or state law from carrying out the SIP or portion thereof). Section 110(a)(2)(E)(ii) also requires each state to comply with the requirements respecting state boards under CAA section 128. Section 110(a)(2)(E)(iii) requires states to ``provide necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any [SIP] provision, the State has responsibility for ensuring adequate implementation of such [SIP] provision.'' a. Sub-Elements (i) and (iii): Adequate Personnel, Funding, and Legal Authority Under State Law To Carry Out Its SIP, and Related Issues The provisions contained in 75-2-102, MCA, 75-2-111, MCA, and 75-2- 112, MCA, provide adequate authority for the State of Montana and the DEQ to carry out its SIP obligations with respect to the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. The State receives sections 103 and 105 grant funds through its Performance Partnership Grant along with required state matching funds to provide funding necessary to carry out Montana's SIP requirements. With respect to section 110(a)(2)(E)(iii), the regulations cited by Montana in their certifications (75-2-111 and 75-2-112, MCA) and contained within this docket also provide the necessary assurances that the State has responsibility for adequate implementation of SIP provisions by local governments. Therefore, we propose to approve Montana's SIP as meeting the requirements of section 110(a)(2)(E)(i) and (E)(iii) for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. b. Sub-Element (ii): State Boards Section 110(a)(2)(E)(ii) requires each state's SIP to contain provisions that comply with the requirements of section 128 of the CAA. That provision contains two explicit requirements: (i) That any board or body which approves permits or enforcement orders under the CAA shall have at least a majority of members who represent the public interest and do not derive a significant portion of their income from persons subject to such permits and enforcement orders; and (ii) that any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed. In our July 30, 2013 action, we disapproved Montana's February 10, 2010 infrastructure SIP submission for the 1997 and 2006 PM2.5 NAAQS for CAA Section 110(a)(2)(E)(ii) because the Montana SIP did not contain provisions meeting requirements of CAA section 128. On December 17, 2015, EPA received a submission from the State of Montana to address the requirements of section 128. The Montana BER approved new rule language on October 16, 2015. A copy of New Rule I (ARM 17.8.150), II (ARM 17.8.151), and III (ARM 17.8.152) is available within this docket. New Rule II Board Action addresses board composition requirements of section 128(a)(1) and New Rule III Reporting addresses conflict of interest requirements of section 128(a)(2). We propose to approve this new rule language as meeting the requirements of section 128 for the reasons explained in more detail below. Because this revision meets the requirements of section 128, we also propose to approve the State's infrastructure SIP submissions for element 110(a)(2)(E)(ii). The State made these infrastructure SIP submissions in connection with the 2012 PM2.5 NAAQS, but section 128 is not NAAQS-specific and once the State has met the requirements of section 128 that is sufficient for purposes of infrastructure SIP requirements for all NAAQS. If we finalize this proposed approval for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 , and 2012 PM2.5 NAAQS, this will also resolve the prior disapproval for element 110(a)(2)(E)(ii) for the1997 and 2006 PM2.5 NAAQS. [[Page 4233]] We are proposing to approve the State's December 17, 2015 SIP submission as meeting the requirements of section 128 because we believe that it complies with the statutory requirements and is consistent with EPA's guidance recommendations concerning section 128. In 1978, EPA issued a guidance memorandum recommending ways states could meet the requirements of section 128, including suggested interpretations of certain key terms in section 128.\13\ In this proposal notice, we discuss additional relevant aspects of section 128. We first note that, in the conference report on the 1977 amendments to the CAA, the conference committee stated, ``[i]t is the responsibility of each state to determine the specific requirements to meet the general requirements of [section 128].'' \14\ This legislative history indicates that Congress intended states to have some latitude in adopting SIP provisions with respect to section 128, so long as states meet the statutory requirements of the section. We also note that Congress explicitly provided in section 128 that states could elect to adopt more stringent requirements, as long as the minimum requirements of section 128 are met. --------------------------------------------------------------------------- \13\ Memorandum from David O. Bickart, Deputy General Counsel, to Regional Air Directors, Guidance to States for Meeting Conflict of Interest Requirements of Section 128 (Mar. 2, 1978). \14\ H.R. Rep. 95-564 (1977), reprinted in 3 Legislative History of the Clean Air Act Amendments of 1977, 526-27 (1978). --------------------------------------------------------------------------- In implementing section 128, the EPA has identified a number of key considerations relevant to evaluation of a SIP submission. EPA has identified these considerations in the 1978 guidance and in subsequent rulemaking actions on SIP submissions relevant to section 128, whether as SIP revisions for this specific purpose or as an element of broader actions on infrastructure SIP submissions for one or more NAAQS. Each state must meet the requirements of section 128 through provisions that EPA approves into the state's SIP and are thus made federally enforceable. Section 128 explicitly mandates that each SIP ``shall contain requirements'' that satisfy subsections 128(a)(1) and 128(a)(2). A mere narrative description of state statutes or rules, or of a state's current or past practice in constituting a board or body and in disclosing potential conflicts of interest, is not a requirement contained in the SIP and does not satisfy the plain text of section 128. Subsection 128(a)(1) applies only to states that have a board or body that is composed of multiple individuals and that, among its duties, approves permits or enforcement orders under the CAA. It does not apply in states that have no such multi-member board or body that performs these functions, and where instead a single head of an agency or other similar official approves permits or enforcement orders under the CAA. This flows from the text of section 128, for two reasons. First, as subsection 128(a)(1) refers to a majority of members of the board or body in the plural, we think it reasonable to read subsection 128(a)(1) as not creating any requirements for an individual with sole authority for approving permits or enforcement orders under the CAA. Second, subsection 128(a)(2) explicitly applies to the head of an executive agency with ``similar powers'' to a board or body that approves permits or enforcement orders under the CAA, while subsection 128(a)(1) omits any reference to heads of executive agencies. We infer that subsection 128(a)(1) should not apply to heads of executive agencies who approve permits or enforcement orders. Subsection 128(a)(2) applies to all states, regardless of whether the state has a multi-member board or body that approves permits or enforcement orders under the CAA. Although the title of section 128 is ``State boards,'' the language of subsection 128(a)(2) explicitly applies where the head of an executive agency, rather than a board or body, approves permits or enforcement orders. In instances where the head of an executive agency delegates his or her power to approve permits or enforcement orders, or where statutory authority to approve permits or enforcement orders is nominally vested in another state official, the requirement to adequately disclose potential conflicts of interest still applies. In other words, EPA interprets section 128(a)(2) to apply to all states, regardless of whether a state board or body approves permits or enforcement orders under the CAA or whether a head of a state agency (or his/her delegates) performs these duties. Thus, all state SIPs must contain provisions that require adequate disclosure of potential conflicts of interest in order to meet the requirements of subsection 128(a)(2). The question of which entities or parties must be subject to such disclosure requirements must be evaluated by states and EPA in light of the specific facts and circumstances of each state's regulatory structure. A state may satisfy the requirements of section 128 by submitting for adoption into the SIP a provision of state law that closely tracks or mirrors the language of the applicable provisions of section 128. A state may take this approach in two ways. First, the state may adopt the language of subsections 128(a)(1) and 128(a)(2) verbatim. Under this approach, the state will be able to meet the continuing requirements of section 128 without any additional, future SIP revisions, even if the state adds or removes authority, either at the state level or local level, to individual or to boards or bodies to approve permits or enforcement orders under the CAA so long as the state continues to meet section 128 requirements. Second, the state may modify the language of subsections 128(a)(1) (if applicable) and 128(a)(2) to name the particular board, body, or individual official with approval authority. In this case, if the state subsequently modifies that authority, the state may have to submit a corresponding SIP revision to meet the continuing requirements of section 128. If the state chooses to not mirror the language of section 128, the state may adopt state statutes and/or regulations that functionally impose the same requirements as those of section 128, including definitions for key terms such as those recommended in EPA's 1978 guidance. While any of these approaches would meet the minimum requirements of section 128, the statute also explicitly authorizes states to adopt more stringent requirements, for example to impose additional requirements for recusal of board members from decisions, above and beyond the explicit board composition requirements. Although such recusal alone does not meet the requirements of section 128, states have the authority to require that over and above the explicit requirements of section 128. These approaches give states flexibility in implementing section 128, while still ensuring consistency with the statute. EPA has evaluated the New Rule I Definitions, II Board Action, and III Reporting (available within this docket) from the State in light of the requirements of section 128, these key considerations previously noted, and the recommendations in the 1978 guidance. The Montana Code creates a Board of Environmental Review (BER) which consists of seven members appointed by the Governor. A person who is directly and adversely affected by the Montana DEQ's approval or denial of a permit to construct an air pollution source may request a hearing before the BER and the BER may uphold, alter, or reverse decisions of the Montana DEQ. Similarly, a person who participated in the comment period on Montana DEQ's issuance, renewal, amendment, or modification of a title V operating permit may request a hearing [[Page 4234]] before the BER and the BER may uphold, alter, or reverse decisions of the Montana DEQ. Finally, a person who receives an enforcement order from Montana DEQ under Chapter 2 of Title 75, Air Quality, may request a hearing before the BER and the BER may uphold, alter, or reverse decisions of the Montana DEQ. As EPA has explained in other rulemaking actions, e.g., 78 FR 32613 (May 31, 2013), we interpret section 128(a)(1) to mean that boards that are the potential final decisionmaker via permit and enforcement order appeals ``approve'' those permits and enforcement orders. For example, by being the final decisionmaker with respect to questions such as whether a source receives a permit and the specific contents of such a permit, the board is an entity that approves the permit within the meaning of 128(a)(1). Thus, the BER is subject to the requirements of 128(a)(1). Montana's New Rule II Board Action, provides that the BER must be composed in conformance with requirements of section 128 of the CAA for all permits and enforcement orders initiated under Montana's air pollution control authority. In essence, the rule prohibits the BER from taking action if the BER does not meet the requirements of section 128(a)(1). The State has submitted New Rule II (ARM 17.8.151) to EPA for adoption into their SIP, thus making a legally binding requirement that the BER be comprised of a majority of members that represent the public interest and do not derive a significant portion of their income from parties subject to permit requirements or enforcement orders under the CAA. The definitions of ``regulated person,'' ``represent the public interest,'' and ``significant portion of income'' are consistent with the recommendations in our 1978 guidance. We believe Montana's submission of New Rule II satisfies the requirements of subsection 128(a)(1). To meet the requirements of subsection 128(a)(2), the State's New Rule III (ARM 17.8.152) Reporting, includes disclosure requirements applying to members of the BER. At the first meeting each calendar year, members of the BER must file with the BER secretary a written certification that they ``represent the public interest \15\'' and do not derive a ``significant portion of income'' from ``regulated persons'' as defined in New Rule I (ARM 17.8.150) Definitions (4)(a), (b) and (c). The board member must file with the BER a written withdrawal of certification if they no longer represent the public interest or has begun to derive a ``significant portion of income \16\'' from ``regulated persons,'' as defined in New Rule I (5) and (3)(a) and (b). Furthermore, board members must file with the BER a written disclose of any ``potential conflicts of interest'' as defined in New Rule I (2)(a) and (b). New Rule I defines ``potential conflict of interest'' as ``(a) any income from a regulated person; or (b) any interest or relationship that would preclude the individual having the interest or relationship from being considered one who represents the public interest.'' This definition is consistent with the suggested definition in the 1978 guidance. We believe Montana's submission of New Rule I and III satisfies the requirements of subsection 128(a)(2). --------------------------------------------------------------------------- \15\ New Rule I defines ``represent the public interest'' as a person who ``(4) does not: (a) Own a controlling interest in or have five percent or more of his or her capital invested in a regulated person; (b) serve as attorney for, act as consultant for, or serve as an officer or director of a regulated person; or (c) hold any other official or contractual relationship with a regulated person.'' \16\ New Rule I defines ``significant portion of income'' as ``(5) ten percent or more of gross personal income for a calendar year, including retirement benefits, consulting fees, and stock dividends, except that it shall mean 50 percent or more of gross personal income for a calendar year if the recipient is over 60 years of age and is receiving such portion pursuant to retirement, pension, or similar arrangement. For purposes of this section, income derived from mutual-fund payments, or from other diversified investments as to which the recipient does not know the identity of the primary sources of income, shall be considered part of the recipient's gross personal income but shall not be treated as income derived from persons subject to permits or enforcement orders under the Clean Air Act.'' --------------------------------------------------------------------------- For the foregoing reasons, the EPA believes that the New Rules I (ARM 17.8.150), II (ARM 17.8.151), and III (ARM 17.8.152) adopted by the BER on October 16, 2015 and submitted to EPA for inclusion in the SIP on December 17, 2015 contains provisions that meet the requirements of section 128(a)(1) and section 128(a). Accordingly, we are proposing approval of that submission and also proposing approval of the infrastructure SIP submission as meeting the requirements of section 128 for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. 7. Stationary source monitoring system: Section 110(a)(2)(F) requires: (i) The installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources; (ii) Periodic reports on the nature and amounts of emissions and emissions-related data from such sources; and (iii) Correlation of such reports by the state agency with any emission limitations or standards established pursuant to the Act, which reports shall be available at reasonable times for public inspection. The provisions cited by Montana (ARM 17.8.105 and 17.8.106) pertain to testing requirements and protocols. Montana also incorporates by reference 40 CFR part 51, appendix P, regarding minimum monitoring requirements. (See ARM 17.8.103(1)(D)). In addition, Montana provides for monitoring, recordkeeping, and reporting requirements for sources subject to minor and major source permitting Furthermore, Montana is required to submit emissions data to the EPA for purposes of the National Emissions Inventory (NEI). The NEI is the EPA's central repository for air emissions data. The EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar-year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through the EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and their associated precursors--nitrogen oxides, sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. Montana made its latest update to the NEI in April 2013. EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. Based on the analysis above, we propose to approve the Montana SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. 8. Emergency powers: Section 110(a)(2)(G) of the CAA requires infrastructure SIPs to ``provide for authority comparable to that in [CAA section 303] and adequate contingency plans to implement such authority.'' Under CAA section 303, the EPA Administrator has authority to bring suit to immediately restrain an air pollution source that presents an imminent and substantial endangerment to public [[Page 4235]] health or welfare, or the environment.\17\ If such action may not practicably assure prompt protection, then the Administrator has authority to issue temporary administrative orders to protect the public health or welfare, or the environment, and such orders can be extended if EPA subsequently files a civil suit. We propose to find that Montana's infrastructure SIP submittals and certain State statutes provide for authority for the State comparable to that granted to the EPA Administrator to act in the face of an imminent and substantial endangerment to the public's health or welfare, or the environment. --------------------------------------------------------------------------- \17\ A discussion of the requirements for meeting CAA section 303 is provided in our notice of proposed rulemaking: Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 1997 and 2006 PM2.5 , 2008 Lead, 2008 Ozone, and 2010 NO2 National Ambient Air Quality Standards; South Dakota (79 FR 71040, Dec. 1, 2014) under ``VI. Analysis of State Submittals, 8. Emergency powers.'' --------------------------------------------------------------------------- Montana's SIP submittals with regard to the section 110(a)(2)(G) emergency order requirements explain that Montana has an EPA approved Emergency Episode Avoidance Plan (EEAP) (71 FR 19, Jan. 3, 2006). According to the EEAP, ``the Department shall take the necessary precautions to protect public health as set forth in 75-2-402 ,\18\ MCA, ``Emergency Powers.'' These precautions include, but are not limited to, ordering a halt or curtailment of any operations, activities, processes, or conditions the Department believes are contributing to the air pollutant emergency episode.'' Additionally, under 75-2-111(3) MCA ,\19\ Montana's environmental review board has broad authority to ``issue orders necessary to effectuate the purposes'' of Chapter 2. Also, under 75-2-112(2)(a) \20\ MCA, the DEQ has the authority to use ``appropriate administrative and judicial proceedings'' to enforce orders issued by the board. Any air pollution discharge that created an emergency situation would constitute a violation of the chapter and its purposes, therefore providing the BER and the DEQ authority to issue administrative orders to stop discharges that cause emergencies effecting welfare and the environment .\21\ --------------------------------------------------------------------------- \18\ 75-2-402 MCA, Emergency Procedure: ``(1) Any other law to the contrary notwithstanding, if the department finds that a generalized condition of air pollution exists and that it creates an emergency requiring immediate action to protect human health or safety, the department shall order persons causing or contributing to the air pollution to immediately reduce or discontinue the emission of air contaminants. Upon issuance of this order, the department shall fix a place and time within 24 hours for a hearing to be held before the board. Within 24 hours after the start of the hearing and without adjournment, the board shall confirm, modify, or set aside the order of the department. (2) Except as provided in subsection (1), if the department finds that emissions from the operation of one or more air contaminant sources are causing imminent danger to human health or safety, it may order the person responsible for the operation in question to reduce or discontinue emissions immediately, without regard for 75-2-401. In this event, the requirements for hearing and confirmation, modification, or setting aside of orders as provided in subsection (1) apply. (3) This section does not limit any power that the governor or any other officer may have to declare an emergency and act on the basis of this declaration, whether the power is conferred by statute or the constitution or is inherent to the office.'' \19\ 75-2-111, MCA. Powers of board: ``The board shall, subject to the provisions of 75-2-207: (1) Adopt, amend, and repeal rules for the administration, implementation, and enforcement of this chapter, for issuing orders under and in accordance with 42 U.S.C. 7419, and for fulfilling the requirements of 42 U.S.C. 7420 and regulations adopted pursuant to that section, except that, for purposes other than agricultural open burning, the board may not adopt permitting requirements or any other rule relating to: (a) any agricultural activity or equipment that is associated with the use of agricultural land or the planting, production, processing, harvesting, or storage of agricultural crops by an agricultural producer and that is not subject to the requirements of 42 U.S.C. 7475, 7503, or 7661a; (b) a commercial operation relating to the activities or equipment referred to in subsection (1)(a) that remains in a single location for less than 12 months and is not subject to the requirements of 42 U.S.C. 7475, 7503, or 7661a; or (c) forestry equipment and its associated engine used for forestry practices that remain in a single location for less than 12 months and are not subject to the requirements of 42 U.S.C. 7475, 7503, or 7661a; (2) hold hearings relating to any aspect of or matter in the administration of this chapter at a place designated by the board. The board may compel the attendance of witnesses and the production of evidence at hearings. The board shall designate an attorney to assist in conducting hearings and shall appoint a reporter who must be present at all hearings and take full stenographic notes of all proceedings, transcripts of which will be available to the public at cost. (3) issue orders necessary to effectuate the purposes of this chapter; (4) by rule require access to records relating to emissions; (5) by rule adopt a schedule of fees required for permits, permit applications, and registrations consistent with this chapter; (6) have the power to issue orders under and in accordance with 42 U.S.C. 7419.'' \20\ 75-2-112, MAC, Powers and responsibilities of department. ``(1) The department is responsible for the administration of this chapter. (2) The department shall: (a) by appropriate administrative and judicial proceedings, enforce orders issued by the board;'' \21\ See email from David Klemp, Montana State Air Director to EPA, Dec. 12, 2015, contained within this docket. --------------------------------------------------------------------------- While no single Montana statute mirrors the authorities of CAA section 303, we propose to find that the combination of MCA provisions discussed above provide for authority comparable to section 303 to immediately bring suit to restrain and issue emergency orders for applicable emergencies to take prompt administrative action against any person causing or contributing to air pollution that presents an imminent and substantial endangerment to public health or welfare, or the environment. Consistent with EPA's 2013 Infrastructure SIP Guidance, the narratives provided in Montana's SIP submittals about the State's authorities applying to emergency episodes (as discussed above), plus additional Montana statutes that we have considered, we propose that they are sufficient to meet the authority requirement of CAA section 110(a)(2)(G). States must also have adequate contingency plans adopted into their SIP to implement the air agency's emergency episode authority (as discussed above). This can be done by submitting a plan that meets the applicable requirements of 40 CFR part 51, subpart H for the relevant NAAQS if the NAAQS is covered by those regulations. EPA approved Montana's EEAP in 71 FR 19 (Jan. 3, 2006). We find that Montana's air pollution emergency rules include PM10 , ozone, NO2 , and SO2 ; establish stages of episode criteria; provide for public announcement whenever any episode stage has been determined to exist; and specify emission control actions to be taken at each episode stage, consistent with the EPA emergency episode SIP requirements set forth at 40 CFR part 51 subpart H (prevention of air pollution emergency episode) for particulate matter, ozone, NO2 , and SO2 . As noted in the October 14, 2011 guidance,\22\ based on EPA's experience to date with the Pb NAAQS and designating Pb nonattainment areas, EPA expects that an emergency episode associated with Pb emissions would be unlikely and, if it were to occur, would be the result of a malfunction or other emergency situation at a relatively large source of Pb. Accordingly, EPA believes the central components of a contingency plan would be to reduce emissions from the source at issue and communicate with the public as needed. We note that 40 CFR part 51, subpart H (51.150-51.152) and 40 CFR part 51, Appendix L do not apply to Pb. --------------------------------------------------------------------------- \22\ ``Guidance on Infrastructure State Implementation Plan (SIP) Elements Required Under Sections 110(a)(1) and 110(a)(2) for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS).'' Steve Page, OAQPS Director, October 14, 2011, at p 13. --------------------------------------------------------------------------- Based on the above analysis, we propose approval of Montana's SIP as [[Page 4236]] meeting the requirements of CAA section 110(a)(2)(G) for the 2008 Pb, 2008 ozone, and 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. 9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs provide for revision of such plan: (i) From time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard; and (ii), except as provided in paragraph (3)(C), whenever the Administrator finds on the basis of information available to the Administrator that the SIP is substantially inadequate to attain the NAAQS which it implements or to otherwise comply with any additional requirements under this [Act]. Montana's statutory provisions in the Montana CAA at 75-2-101 et seq., give the BER sufficient authority to meet the requirements of 110(a)(2)(H). Therefore, we propose to approve Montana's SIP as meeting the requirements of CAA section 110(a)(2)(H). 10. Consultation with government officials, public notification, PSD and visibility protection: Section 110(a)(2)(J) requires that each SIP ``meet the applicable requirements of section 121 of this title (relating to consultation), section 127 of this title (relating to public notification), and part C of this subchapter (relating to PSD of air quality and visibility protection).'' The State has demonstrated that it has the authority and rules in place to provide a process of consultation with general purpose local governments, designated organizations of elected officials of local governments and any Federal Land Manager having authority over federal land to which the SIP applies, consistent with the requirements of CAA section 121 (see 59 FR 2988, Jan. 20, 1994). Furthermore, Montana's Emergency Episode Avoidance Plan, approved into the SIP (71 FR 19, Jan. 3, 2006), meets the general requirements of CAA section 127. Turning to the requirement in section 110(a)(2)(J) that the SIP meet the applicable requirements of part C of title I of the Act, EPA has evaluated this requirement in the context of infrastructure element (C) in section VI.3 above. As discussed there, EPA proposes to conditionally approve Montana's infrastructure SIP for the requirement in 110(a)(2)(C) that the SIP include a permit program as required in part C, on the condition that the State adopts and submits specific revisions within one year of EPA's final action on these infrastructure submittals; specifically to remove the phrase ``24-hour average'' in ARM 17.8.818(7)(a)(iii). For the same reason, EPA proposes to conditionally approve Montana's infrastructure SIP with regard to the requirement in section 110(a)(2)(J) that the SIP meet the applicable requirements of part C of title I the Act. Finally, with regard to the applicable requirements for visibility protection, EPA recognizes states are subject to visibility and regional haze program requirements under part C of the Act. In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus, we find that there are no applicable visibility requirements under section 110(a)(2)(J) when a new NAAQS becomes effective. Based on the above analysis, we propose to approve the Montana SIP as meeting the requirements of CAA section 110(a)(2)(J) for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS with regard to sections 121 and 127 of the CAA, and conditional approval of section 110(a)(2)(J) with regard to meeting the applicable requirements of part C relating to PSD. 11. Air quality and modeling/data: Section 110(a)(2)(K) requires each SIP provide for: (i) The performance of such air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a NAAQS; and (ii) the submission, upon request, of data related to such air quality modeling to the Administrator. Montana's PSD program (see ARM 17.8.821(1)) requires estimates of ambient air concentrations be based on applicable air quality models specified in Appendix W of 40 CFR part 51, pertaining to the Guidelines on Air Quality Models. Additionally, MCA 75-2-211. Powers of board and MCA 75-2-112. Powers and responsibilities of department, provide Montana with the broad authority to develop and implement an air quality control program that includes conducting air quality modeling to predict the effect on ambient air quality of any emissions of any air pollutant for which a NAAQS has been promulgated.\23\ As a result, the SIP provides for such air quality modeling as the Administrator has prescribed with respect to the SIP outside of the nonattainment areas. --------------------------------------------------------------------------- \23\ See email from David Klemp, Montana State Air Director, to EPA on Dec. 12, 2015, contained within this docket. --------------------------------------------------------------------------- Therefore, we propose to approve the Montana SIP as meeting the CAA section 110(a)(2)(K) for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. 12. Permitting fees: Section 110(a)(2)(L) requires the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under this act, a fee sufficient to cover: (i) The reasonable costs of reviewing and acting upon any application for such a permit; and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program under title V. Montana requires an applicant proposing to construct or modify an air pollution source to pay an application fee, ARM 17.8.504 (State rule only). Sources must also pay an annual operation fee, ARM 17.8.505 (State rule only). Under ARM 17.8.823(1), Source Information for PSD of air quality, ``(1) The owner or operator of a proposed source or modification shall submit the permit application fee required pursuant to ARM 17.8.504 and all information necessary to perform any analysis or make any determination required under procedures established in accordance with this subchapter.'' ARM 17.8.823 was adopted into Montana's SIP on August 13, 2001 (66 FR 42427). Additionally, ARM 17.8.1704, Registration Fees, for oil and gas facilities states that ``(1) The registration fee required by ARM 17.8.504 must be submitted to the department with each registration submitted under this subchapter. No fee is required for notifying the department, pursuant to ARM 17.8.1703(4), of changes to registration information. (2) The registration fee must be paid in its entirety at the time the registration form is submitted to the department.'' ARM 17.8.1703 was adopted into the Montana SIP on November 19, 2013 (78 FR 69296). We also note that all the State SIPs we are proposing to approve in this action cite the regulation that provides for collection of permitting fees under Montana's approved title V permit program (65 FR 37049, June 13, 2000). As discussed in that approval, the State demonstrated that the fees collected were sufficient to administer the program. [[Page 4237]] Therefore, based on the State's experience in relying on the funds collected through application and processing fees at ARM 17.8.504 and ARM 17.8.505, and the use of title V fees to implement and enforce PSD permits once they are incorporated into title V permits, we propose to approve the submissions as supplemented by the State for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. 13. Consultation/participation by affected local entities: Section 110(a)(2)(M) requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP. The statutory and other provisions cited in Montana's SIP submittals (Section 75-2-112(2)(j) of the MT CAA, ARM 17.8.140, 17.8.141 and 17.8.142, contained within this docket) meet the requirements of CAA section 110(a)(2)(M), so we propose to approve Montana's SIP as meeting these requirements for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 2012 PM2.5 NAAQS. VII. What action is EPA taking? In this action, EPA is proposing to approve infrastructure elements for the 2008 Pb, 2008 ozone, 2010 NO2 , 2010 SO2 and 1997, 2006 and 2012 PM2.5 NAAQS from the State's certifications as shown in Table 2. EPA is proposing conditional approval of elements (C), D(i)(II) element 3 and (J) with respect to the requirement to have a PSD program that meets the requirements of part C of Title 1 of the Act as shown in Table 3. Elements we propose no action on are reflected in Table 5. EPA is proposing to disapprove (D)(i)(II) element 4 for the 2006 PM2.5 , 2008 ozone, 2010 NO2 , 2010 SO2 , and 2012 PM2.5 NAAQS (Table 4). As noted, finalization of this disapproval would not require further action from the State, and does not create a new FIP obligation for EPA. We also propose to approve revisions to the ARM from the August 21, 2012 submittal (Table 2) and conditionally approve a revision from the March 24, 2015 submittal (Table 3) to bring Montana's PSD program up to date with respect to current requirements for PM2.5 . If Montana does not submit a SIP revision to correct the language in ARM 17.8.818(7)(a)(iii) within one year of EPA's final action on these infrastructure submittals, conditional approvals will automatically revert to disapprovals for ARM 17.8.818(7)(a)(iii), and elements (C), D(i)(II) element 3 and (J) with respect to PSD requirements. Finally, EPA is proposing to approve new ARM submitted on December 17, 2015 to satisfy requirements of element (E)(ii), state boards. A comprehensive summary of infrastructure elements, and revisions and additions to the ARM organized by EPA's proposed rule action are provided in Table 2, Table 3, Table 4 and Table 5. Table 2--List of Montana Infrastructure Elements and Revisions That EPA Is Proposing To Approve ------------------------------------------------------------------------ Proposed for approval ------------------------------------------------------------------------- February 10, 2010 submittal--1997 and 2006 PM2.5 NAAQS: (D)(ii) for both the 1997 and 2006 PM2.5 NAAQS. December 19, 2011 submittal--2008 Pb NAAQS: (A), (B), (C) with respect to minor NSR requirements, (D)(i)(I) elements 1 and 2, (D)(i)(II) element 4, (D)(ii), (E), (F), (G), (H), (J) with respect to requirements of sections 121 and 127, (K), (L) and (M). January 3, 2013 submittal--2008 Ozone NAAQS: (A), (B), (C) with respect to minor NSR requirements, (D)(ii), (E), (F), (G), (H), (J) with respect to requirements of sections 121 and 127, (K), (L) and (M). June 4, 2013 submittal--2010 NO2 NAAQS: (A), (B), (C) with respect to minor NSR requirements, (D)(i)(I) elements 1 and 2, (D)(ii), (F), (G), (H), (J) with respect to requirements of sections 121 and 127, (K), (L) and (M). July 15, 2013 submittal--2010 SO2 NAAQS: (A), (B), (C) with respect to minor NSR requirements, (D)(ii), (F), (G), (H), (J) with respect to requirements of sections 121 and 127, (K), (L) and (M). December 17, 2015 submittal--2012 PM2.5 NAAQS: (A), (B), (C) with respect to minor NSR requirements, (D)(ii), (F), (G), (H), (J) with respect to requirements of sections 121 and 127, (K), (L) and (M). August 21, 2012 submittal--Revisions to ARM, Prevention of Significant Deterioration: ARM 17.8.801(3), 17.8.801(21), 17.8.801(27), 17.8.804(1), 17.8.818(7)(a)(iv)-(xi), 17.8.822(9), 17.8.822(10), 17.8.822(11), 17.8.822(12) and 17.8.825(4). December 17, 2015 submittal--New Rules to ARM, CAA Section 128 New Rule I (ARM 17.8.150), II (ARM 17.8.151) and III (ARM 17.8.152). ------------------------------------------------------------------------ Table 3--List of Montana Infrastructure Elements and Revisions That EPA Is Proposing To Conditionally Approve ------------------------------------------------------------------------ Proposed for conditional approval ------------------------------------------------------------------------- February 10, 2010 submittal--1997 and 2006 PM2.5 NAAQS: (D)(i)(II) element 3 for the 2006 PM2.5 NAAQS. December 19, 2011 submittal--2008 Pb NAAQS: (C) and (J) with respect to PSD, and (D)(i)(II) element 3. January 3, 2013 submittal--2008 Ozone NAAQS: (C) and (J) with respect to PSD, and (D)(i)(II) element 3. June 4, 2013 submittal--2010 NO2 NAAQS: (C) and (J) with respect to PSD, and (D)(i)(II) element 3. July 15, 2013 submittal--2010 SO2 NAAQS: (C) and (J) with respect to PSD, and (D)(i)(II) element 3. December 17, 2015 submittal--2012 PM2.5 NAAQS: (C) and (J) with respect to PSD, and (D)(i)(II) element 3. [[Page 4238]] March 24, 2015 submittal--Revisions to ARM, Prevention of Significant Deterioration: ARM 17.8.818(7)(a)(iii). ------------------------------------------------------------------------ Table 4--List of Montana Infrastructure Elements That EPA Is Proposing To Disapprove ------------------------------------------------------------------------ Proposed for disapproval ------------------------------------------------------------------------- February 10, 2010 submittal--1997 and 2006 PM2.5 NAAQS: (D)(i)(II) element 4 for the 2006 PM2.5 NAAQS. January 3, 2013 submittal--2008 Ozone NAAQS: (D)(i)(II) element 4. June 4, 2013 submittal--2010 NO2 NAAQS: (D)(i)(II) element 4. July 15, 2013 submittal--2010 SO2 NAAQS: (D)(i)(II) element 4. December 17, 2015 submittal--2012 PM2.5 NAAQS: (D)(i)(II) element 4. ------------------------------------------------------------------------ Table 5--List of Montana Infrastructure Elements and Revisions That EPA Is Proposing To Take No Action on [Proposed for no action] ---------------------------------------------------------------------------------------------------------------- Reason for proposed ``No Action'' ------------------------------------------------------------------- Revision Revision to be Revision made deletes Revision Revised section made in future in a separate section of the superseded by rulemaking rulemaking ARM never revision in action action (80 FR approved into March 24, 2015 72937) State's SIP State submittal ---------------------------------------------------------------------------------------------------------------- January 3, 2013 submittal--2008 Ozone NAAQS: (D)(i)(I) elements 1 and 2.............. ............... x ............... ............... July 15, 2013 submittal--2010 SO2 NAAQS: (D)(i)(I) elements 1 and 2.............. x ............... ............... ............... December 17, 2015 submittal--2012 PM2.5 NAAQS: (D)(i)(I) elements 1 and 2.............. x ............... ............... ............... August 21, 2012 submittal--Revisions to ARM, Prevention of Significant Deterioration: ARM 17.8.818(7)(a)(iii)................. ............... ............... ............... x ARM 17.8.820(2)......................... ............... ............... ............... x March 24, 2015 submittal--Revisions to ARM, Prevention of Significant Deterioration: ARM 17.8.820(2)......................... ............... ............... x ............... ---------------------------------------------------------------------------------------------------------------- VIII. Incorporation by Reference In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the Administrative Rules of Montana pertaining to major source permitting and PM2.5 emission limits discussed in section VI. 3. Program for enforcement of control measures and section VI. b. Sub-element (ii): State boards, of this preamble. The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information). IX. Statutory and Executive Orders Review 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 some state law as meeting federal requirements and disapproves other state law because it does not meet federal requirements; this proposed action does not impose additional requirements beyond those imposed by state 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, Oct. 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 [[Page 4239]] 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, Aug. 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, Feb. 16, 1994). 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). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Greenhouse gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: January 12, 2016. Shaun L. McGrath, Regional Administrator, Region 8. [FR Doc. 2016-01403 Filed 1-25-16; 8:45 am] BILLING CODE 6560-50-P
![Federal Register / Vol. 81, No. 16 / Tuesday, January 26, 2016 / Proposed Rules 4225
§ 60.15 Process for requesting Fisher 15, 2008, nitrogen dioxide (NO2) on I. General Information
House or other temporary lodging. January 22, 2010, sulfur dioxide (SO2)
What should I consider as I prepare my
(a) Submitting requests. An on June 2, 2010 and fine particulate
comments for EPA?
accompanying individual requesting matter (PM2.5) on December 14, 2012.
Fisher House or other temporary lodging EPA is also proposing to approve 1. Submitting Confidential Business
must contact directly the provider, 110(a)(2)(D)(ii) for the 1997 and 2006 Information (CBI). Do not submit CBI to
social worker, case manager, or Fisher PM2.5 NAAQS. EPA is proposing to EPA through http://www.regulations.gov
House Manager at the veteran’s VA conditionally approve CAA section or email. Clearly mark the part or all of
health care facility of jurisdiction. Upon 110(a)(2)(C) and (J) with regard to PSD the information that you claim to be
receiving a request, VA will determine and element 3 of 110(a)(2)(D)(i)(II) for CBI. For CBI information on a disk or
the accompanying individual’s the 2008 ozone, 2008 Pb, 2010 NO2, CD ROM that you mail to EPA, mark the
eligibility for the requested housing, as 2010 SO2, and 2006 and 2012 PM2.5 outside of the disk or CD ROM as CBI
provided in paragraph (b)(5) of this NAAQS. EPA is proposing to and then identify electronically within
section. disapprove element 4 of CAA section the disk or CD ROM the specific
(b) Processing requests. (1) Requests 110(a)(2)(D)(i)(II) for the 2008 ozone, information that is claimed as CBI. In
for all temporary housing are generally 2010 NO2, 2010 SO2, and 2006 and 2012 addition to one complete version of the
processed in the order that they are PM2.5 NAAQS. EPA is proposing to comment that includes information
received by VA, and temporary lodging approve SIP revisions the State claimed as CBI, a copy of the comment
is then granted on a first come, first submitted to update Montana’s PSD that does not contain the information
served basis; however, in extraordinary program and provisions regarding state claimed as CBI must be submitted for
circumstances, such as imminent death, boards. Section 110(a) of the CAA inclusion in the public docket.
critical injury, or organ donation, requires that each state submit a SIP for Information so marked will not be
requests may be processed out of order. the implementation, maintenance, and disclosed except in accordance with
* * * * * enforcement of each NAAQS procedures set forth in 40 CFR part 2.
(6) If VA denies a request for one type promulgated by EPA. 2. Tips for preparing your comments.
of lodging, such as at a Fisher House, When submitting comments, remember
DATES: Written comments must be to:
the request will be considered for other
temporary lodging and vice versa, if the
received on or before February 25, 2016. • Identify the rulemaking by docket
requester is eligible. ADDRESSES: Submit your comments, number and other identifying
(7) If VA denies a request for identified by Docket ID No. EPA–R08– information (subject heading, Federal
temporary lodging, VA will refer the OAR–2013–0556 at http:// Register volume, date, and page
request to a VA social worker at the VA www.regulations.gov. Follow the online number);
• Follow directions and organize your
health care facility of jurisdiction to instructions for submitting comments.
comments;
determine if other arrangements can be Once submitted, comments cannot be
• Explain why you agree or disagree;
made. edited or removed from Regulations.gov. • Suggest alternatives and substitute
* * * * * The EPA may publish any comment language for your requested changes;
[FR Doc. 2016–01491 Filed 1–25–16; 8:45 am] received to its public docket. Do not • Describe any assumptions and
BILLING CODE 8320–01–P submit electronically any information provide any technical information and/
you consider to be Confidential or data that you used;
Business Information (CBI) or other • If you estimate potential costs or
information whose disclosure is burdens, explain how you arrived at
ENVIRONMENTAL PROTECTION
restricted by statute. Multimedia your estimate in sufficient detail to
AGENCY
submissions (audio, video, etc.) must be allow for it to be reproduced;
40 CFR Part 52 accompanied by a written comment. • Provide specific examples to
The written comment is considered the illustrate your concerns, and suggest
[EPA–R08–OAR–2013–0556, FRL–9941–54- official comment and should include
Region 8]
alternatives;
discussion of all points you wish to • Explain your views as clearly as
make. The EPA will generally not possible, avoiding the use of profanity
Promulgation of State Implementation
consider comments or comment or personal threats; and,
Plan Revisions; Infrastructure
Requirements for the 2008 Lead, 2008
contents located outside of the primary • Make sure to submit your
submission (i.e. on the web, cloud, or comments by the comment period
Ozone, 2010 NO2, 2010 SO2, and 2012
other file sharing system). For deadline identified.
PM2.5 National Ambient Air Quality
additional submission methods, the full
Standards; Montana II. Background
EPA public comment policy,
AGENCY: Environmental Protection information about CBI or multimedia On March 12, 2008, EPA promulgated
Agency (EPA). submissions, and general guidance on a new NAAQS for ozone, revising the
ACTION: Proposed rule. making effective comments, please visit levels of the primary and secondary 8-
http://www2.epa.gov/dockets/ hour ozone standards from 0.08 parts
SUMMARY: The Environmental Protection commenting-epa-dockets. per million (ppm) to 0.075 ppm (73 FR
Agency (EPA) is proposing to approve 16436, March 27, 2008). Subsequently,
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FOR FURTHER INFORMATION CONTACT:
elements of State Implementation Plan on October 15, 2008, EPA revised the
Abby Fulton, Air Program, U.S.
(SIP) revisions from the State of level of the primary and secondary Pb
Environmental Protection Agency
Montana to demonstrate the State meets NAAQS from 1.5 micrograms per cubic
(EPA), Region 8, Mail Code 8P–AR,
infrastructure requirements of the Clean meter (mg/m3) to 0.15 mg/m3 (73 FR
1595 Wynkoop Street, Denver, Colorado
Air Act (Act or CAA) for the National 66964, Nov. 12, 2008). On January 22,
80202–1129, (303) 312–6563,
Ambient Air Quality Standards 2010, EPA promulgated a new 1-hour
fulton.abby@epa.gov.
(NAAQS) promulgated for ozone on primary NAAQS for NO2 at a level of
March 12, 2008, lead (Pb) on October SUPPLEMENTARY INFORMATION: 100 parts per billion (ppb) while
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![4226 Federal Register / Vol. 81, No. 16 / Tuesday, January 26, 2016 / Proposed Rules
retaining the annual standard of 53 ppb. (PM2.5) National Ambient Air Quality section 110(a)(2) provides more details
The 2010 NO2 NAAQS is expressed as Standards (NAAQS)’’ (2009 Memo), concerning the required contents of
the three-year average of the 98th followed by the October 14, 2011, these submissions. The list of required
percentile of the annual distribution of ‘‘Guidance on Infrastructure SIP elements provided in section 110(a)(2)
daily maximum 1-hour average Elements Required Under Sections contains a wide variety of disparate
concentrations. The secondary NO2 110(a)(1) and (2) for the 2008 Lead (Pb) provisions, some of which pertain to
NAAQS remains unchanged at 53 ppb National Ambient Air Quality Standards required legal authority, some of which
(75 FR 6474, Feb. 9, 2010). On June 2, (NAAQS)’’ (2011 Memo). Most recently, pertain to required substantive program
2010, the EPA promulgated a revised EPA issued ‘‘Guidance on Infrastructure provisions, and some of which pertain
primary SO2 standard at 75 ppb, based State Implementation Plan (SIP) to requirements for both authority and
on a three-year average of the annual Elements under Clean Air Act Sections substantive program provisions.2 EPA
99th percentile of one-hour daily 110(a)(1) and (2)’’ on September 13, therefore believes that while the timing
maximum concentrations (75 FR 35520, 2013 (2013 Memo). requirement in section 110(a)(1) is
June 22, 2010). Finally, on December 14, unambiguous, some of the other
III. What is the Scope of this
2012, the EPA promulgated a revised statutory provisions are ambiguous. In
Rulemaking?
annual PM2.5 standard by lowering the particular, EPA believes that the list of
level to 12.0 mg/m3 and retaining the 24- EPA is acting upon the SIP required elements for infrastructure SIP
hour PM2.5 standard at a level of 35 mg/ submissions from Montana that address submissions provided in section
m3 (78 FR 3086, Jan. 15, 2013). the infrastructure requirements of CAA 110(a)(2) contains ambiguities
EPA promulgated a revised NAAQS sections 110(a)(1) and 110(a)(2) for the concerning what is required for
for PM2.5 on October 17, 2006, 2008 ozone, 2008 Pb, 2010 NO2, 2010 inclusion in an infrastructure SIP
tightening the level of the 24-hour SO2, and 2012 PM2.5 NAAQS. The submission.
standard to 35 mg/m3 and retaining the requirement for states to make a SIP Examples of some of these
level of the annual PM2.5 standard at 15 submission of this type arises out of ambiguities and the context in which
mg/m3. EPA approved the CAA section CAA section 110(a)(1). Pursuant to EPA interprets the ambiguous portions
110(a)(2)(D)(i)(I) portion of Montana’s section 110(a)(1), states must make SIP of section 110(a)(1) and 110(a)(2) are
infrastructure SIP for this NAAQS on submissions ‘‘within three years (or discussed at length in our notice of
July 30, 2013 (78 FR 45869). As such shorter period as the Administrator proposed rulemaking: Promulgation of
discussed below, CAA section may prescribe) after the promulgation of State Implementation Plan Revisions;
110(a)(2)(D)(i)(I) covers elements 1 and a national primary ambient air quality Infrastructure Requirements for the 1997
2 of ‘‘interstate transport.’’ In this standard (or any revision thereof),’’ and and 2006 PM2.5, 2008 Lead, 2008 Ozone,
proposed action, EPA is addressing only these SIP submissions are to provide for and 2010 NO2 National Ambient Air
interstate transport elements 3 and 4 the ‘‘implementation, maintenance, and Quality Standards; South Dakota (79 FR
from CAA section 110(a)(2)(D)(i)(II) for enforcement’’ of such NAAQS. The 71040 Dec. 1, 2014) under ‘‘III. What is
the 2006 PM2.5, 2008 ozone, 2010 SO2 statute directly imposes on states the the Scope of this Rulemaking?’’
and 2012 PM2.5 NAAQS. We are not duty to make these SIP submissions, With respect to certain other issues,
addressing elements 1 and 2 for the and the requirement to make the EPA does not believe that an action on
2008 ozone, 2010 SO2 and 2012 PM2.5 submissions is not conditioned upon a state’s infrastructure SIP submission is
NAAQS in this action. These elements EPA taking any action other than necessarily the appropriate type of
will be addressed in a later rulemaking promulgating a new or revised NAAQS. action in which to address possible
action.1 Section 110(a)(2) includes a list of deficiencies in a state’s existing SIP.
Under sections 110(a)(1) and (2) of the specific elements that ‘‘[e]ach such These issues include: (i) Existing
CAA, states are required to submit plan’’ submission must address. provisions related to excess emissions
infrastructure SIPs to ensure their SIPs EPA has historically referred to these from sources during periods of startup,
provide for implementation, SIP submissions made for the purpose shutdown, or malfunction (SSM) that
maintenance and enforcement of the of satisfying the requirements of CAA may be contrary to the CAA and EPA’s
NAAQS. These submissions must sections 110(a)(1) and 110(a)(2) as policies addressing such excess
contain any revisions needed for ‘‘infrastructure SIP’’ submissions. emissions; (ii) existing provisions
meeting the applicable SIP requirements Although the term ‘‘infrastructure SIP’’ related to ‘‘director’s variance’’ or
of section 110(a)(2), or certifications that does not appear in the CAA, EPA uses ‘‘director’s discretion’’ that may be
their existing SIPs for PM2.5, ozone, Pb, the term to distinguish this particular contrary to the CAA because they
NO2, and SO2 already meet those type of SIP submission from purport to allow revisions to SIP-
requirements. EPA highlighted this submissions that are intended to satisfy approved emissions limits while
statutory requirement in an October 2, other SIP requirements under the CAA, limiting public process or not requiring
2007, guidance document entitled such as ‘‘nonattainment SIP’’ or further approval by EPA; and (iii)
‘‘Guidance on SIP Elements Required ‘‘attainment plan SIP’’ submissions to existing provisions for Prevention of
Under Sections 110(a)(1) and (2) for the address the nonattainment planning Significant Deterioration (PSD)
1997 8-hour Ozone and PM2.5 National requirements of part D of title I of the programs that may be inconsistent with
Ambient Air Quality Standards’’ (2007 CAA; ‘‘regional haze SIP’’ submissions current requirements of EPA’s ‘‘Final
Memo). On September 25, 2009, EPA required by EPA rule to address the NSR Improvement Rule,’’ 67 FR 80186,
visibility protection requirements of
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issued an additional guidance document
pertaining to the 2006 PM2.5 NAAQS CAA section 169A; and nonattainment 2 For example: Section 110(a)(2)(E)(i) provides
new source review (NSR) permit that states must provide assurances that they have
entitled ‘‘Guidance on SIP Elements adequate legal authority under state and local law
Required Under Sections 110(a)(1) and program submissions to address the to carry out the SIP; section 110(a)(2)(C) provides
(2) for the 2006 24-Hour Fine Particle permit requirements of CAA, title I, part that states must have a SIP-approved program to
D. address certain sources as required by part C of title
Section 110(a)(1) addresses the timing I of the CAA; and section 110(a)(2)(G) provides that
1 EPA proposed approval of elements 1 and 2 of states must have legal authority to address
Montana’s SIP for the 2008 ozone NAAQS in a and general requirements for emergencies as well as contingency plans that are
notice published November 23, 2015 (80 FR 72937). infrastructure SIP submissions, and triggered in the event of such emergencies.
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to disapprove this portion of Montana’s the emissions of sources subject to necessary assurances that the State has
SIP for the 2006 PM2.5, 2008 ozone, 2010 PSD.12 This suffices to meet the notice responsibility for adequate
NO2 and 2010 SO2 NAAQS. Because requirement of section 126(a). implementation of SIP provisions by
EPA in the Montana regional haze FIP Montana has no pending obligations local governments. Therefore, we
has and will continue to address under sections 126(c) or 115(b); propose to approve Montana’s SIP as
visibility impairment from Montana therefore, its SIP currently meets the meeting the requirements of section
sources in Class I areas outside of the requirements of those sections. In 110(a)(2)(E)(i) and (E)(iii) for the 2008
State, this disapproval will not require summary, the SIP meets the Pb, 2008 ozone, 2010 NO2, 2010 SO2 and
further action from the State, and does requirements of CAA section 2012 PM2.5 NAAQS.
not create a new FIP obligation for EPA. 110(a)(2)(D)(ii), and EPA is therefore
Regarding the 2008 Pb NAAQS, EPA proposing approval of this element for b. Sub-Element (ii): State Boards
agrees that significant impacts from Pb the 2008 Pb, 2008 ozone, 2010 NO2, Section 110(a)(2)(E)(ii) requires each
emissions from stationary sources are 2010 SO2 and 2012 PM2.5 NAAQS. EPA state’s SIP to contain provisions that
expected to be limited to short distances is also proposing to approve the comply with the requirements of section
from the source and most, if not all, Pb Montana SIP as meeting the 128 of the CAA. That provision contains
stationary sources are located at requirements of section 110(a)(2)(D)(ii) two explicit requirements: (i) That any
distances from Class I areas such that for the 1997 and 2006 PM2.5 NAAQS. board or body which approves permits
visibility impacts would be negligible. Montana submitted an infrastructure or enforcement orders under the CAA
Further, when evaluating the extent to certification generally addressing CAA shall have at least a majority of members
which Pb could impact visibility, EPA section 110(a)(2)(D) for the 1997 and who represent the public interest and do
has found Pb-related visibility impacts 2006 PM2.5 NAAQS on February 10, not derive a significant portion of their
insignificant (e.g., less than 0.10 2010. income from persons subject to such
percent).11 Montana does not have any 6. Adequate resources: Section permits and enforcement orders; and (ii)
major sources of Pb located within ten 110(a)(2)(E)(i) requires states to provide that any potential conflicts of interest by
miles of a neighboring state’s Class I necessary assurances that the state will members of such board or body or the
area. EPA proposes to approve have adequate personnel, funding, and head of an executive agency with
Montana’s conclusion that it does not authority under state law to carry out similar powers be adequately disclosed.
have any significant sources of lead the SIP (and is not prohibited by any In our July 30, 2013 action, we
emissions within 2 miles of its border provision of federal or state law from disapproved Montana’s February 10,
and that it therefore does not have carrying out the SIP or portion thereof). 2010 infrastructure SIP submission for
emissions of Pb that would interfere Section 110(a)(2)(E)(ii) also requires the 1997 and 2006 PM2.5 NAAQS for
with the requirements of section each state to comply with the CAA Section 110(a)(2)(E)(ii) because the
110(a)(2)(D)(i)(II) with respect to requirements respecting state boards Montana SIP did not contain provisions
visibility. under CAA section 128. Section meeting requirements of CAA section
EPA agrees with Montana’s assertion 110(a)(2)(E)(iii) requires states to 128. On December 17, 2015, EPA
that its SIP does not satisfy the visibility ‘‘provide necessary assurances that, received a submission from the State of
requirements of section where the State has relied on a local or Montana to address the requirements of
110(a)(2)(D)(i)(II) for the 2012 PM2.5 regional government, agency, or section 128. The Montana BER
NAAQS. EPA proposes to disapprove instrumentality for the implementation approved new rule language on October
this portion of the Montana SIP. of any [SIP] provision, the State has 16, 2015. A copy of New Rule I (ARM
5. Interstate and International responsibility for ensuring adequate 17.8.150), II (ARM 17.8.151), and III
transport provisions: CAA section implementation of such [SIP] (ARM 17.8.152) is available within this
110(a)(2)(D)(ii) requires SIPs to include provision.’’ docket. New Rule II Board Action
provisions ensuring compliance with addresses board composition
the applicable requirements of CAA a. Sub-Elements (i) and (iii): Adequate requirements of section 128(a)(1) and
sections 126 and 115 (relating to Personnel, Funding, and Legal New Rule III Reporting addresses
interstate and international pollution Authority Under State Law To Carry conflict of interest requirements of
abatement). Specifically, CAA section Out Its SIP, and Related Issues section 128(a)(2). We propose to
126(a) requires new or modified major The provisions contained in 75–2– approve this new rule language as
sources to notify neighboring states of 102, MCA, 75–2–111, MCA, and 75–2– meeting the requirements of section 128
potential impacts from the source. 112, MCA, provide adequate authority for the reasons explained in more detail
Section 126(a) of the CAA requires for the State of Montana and the DEQ to below. Because this revision meets the
notification to affected, nearby states of carry out its SIP obligations with respect requirements of section 128, we also
major proposed new (or modified) to the 2008 Pb, 2008 ozone, 2010 NO2, propose to approve the State’s
sources. Sections 126(b) and (c) pertain 2010 SO2 and 2012 PM2.5 NAAQS. The infrastructure SIP submissions for
to petitions by affected states to the State receives sections 103 and 105 element 110(a)(2)(E)(ii). The State made
Administrator of the EPA grant funds through its Performance these infrastructure SIP submissions in
(Administrator) regarding sources Partnership Grant along with required connection with the 2012 PM2.5
violating the ‘‘interstate transport’’ state matching funds to provide funding NAAQS, but section 128 is not NAAQS-
provisions of section 110(a)(2)(D)(i). necessary to carry out Montana’s SIP specific and once the State has met the
requirements of section 128 that is
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Section 115 of the CAA similarly requirements.
pertains to international transport of air With respect to section sufficient for purposes of infrastructure
pollution. 110(a)(2)(E)(iii), the regulations cited by SIP requirements for all NAAQS. If we
As required by 40 CFR Montana in their certifications (75–2– finalize this proposed approval for the
51.166(q)(2)(iv), Montana’s SIP- 111 and 75–2–112, MCA) and contained 2008 Pb, 2008 ozone, 2010 NO2, 2010
approved PSD program requires notice within this docket also provide the SO2, and 2012 PM2.5 NAAQS, this will
to states whose lands may be affected by also resolve the prior disapproval for
12 See Administrative Rule of Montana (‘‘ARM’’) element 110(a)(2)(E)(ii) for the1997 and
11 2013 Memo at 33. 17.8.826(2)(d). 2006 PM2.5 NAAQS.
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We are proposing to approve the or enforcement orders under the CAA. take this approach in two ways. First,
State’s December 17, 2015 SIP It does not apply in states that have no the state may adopt the language of
submission as meeting the requirements such multi-member board or body that subsections 128(a)(1) and 128(a)(2)
of section 128 because we believe that performs these functions, and where verbatim. Under this approach, the state
it complies with the statutory instead a single head of an agency or will be able to meet the continuing
requirements and is consistent with other similar official approves permits requirements of section 128 without any
EPA’s guidance recommendations or enforcement orders under the CAA. additional, future SIP revisions, even if
concerning section 128. In 1978, EPA This flows from the text of section 128, the state adds or removes authority,
issued a guidance memorandum for two reasons. First, as subsection either at the state level or local level, to
recommending ways states could meet 128(a)(1) refers to a majority of members individual or to boards or bodies to
the requirements of section 128, of the board or body in the plural, we approve permits or enforcement orders
including suggested interpretations of think it reasonable to read subsection under the CAA so long as the state
certain key terms in section 128.13 In 128(a)(1) as not creating any continues to meet section 128
this proposal notice, we discuss requirements for an individual with sole requirements.
additional relevant aspects of section authority for approving permits or Second, the state may modify the
128. We first note that, in the conference enforcement orders under the CAA. language of subsections 128(a)(1) (if
report on the 1977 amendments to the Second, subsection 128(a)(2) explicitly applicable) and 128(a)(2) to name the
CAA, the conference committee stated, applies to the head of an executive particular board, body, or individual
‘‘[i]t is the responsibility of each state to agency with ‘‘similar powers’’ to a board official with approval authority. In this
determine the specific requirements to or body that approves permits or case, if the state subsequently modifies
meet the general requirements of enforcement orders under the CAA, that authority, the state may have to
[section 128].’’ 14 This legislative history while subsection 128(a)(1) omits any submit a corresponding SIP revision to
indicates that Congress intended states reference to heads of executive agencies. meet the continuing requirements of
to have some latitude in adopting SIP We infer that subsection 128(a)(1) section 128. If the state chooses to not
provisions with respect to section 128, should not apply to heads of executive mirror the language of section 128, the
so long as states meet the statutory agencies who approve permits or state may adopt state statutes and/or
requirements of the section. We also enforcement orders. regulations that functionally impose the
note that Congress explicitly provided Subsection 128(a)(2) applies to all same requirements as those of section
in section 128 that states could elect to states, regardless of whether the state 128, including definitions for key terms
adopt more stringent requirements, as has a multi-member board or body that such as those recommended in EPA’s
long as the minimum requirements of approves permits or enforcement orders 1978 guidance. While any of these
section 128 are met. under the CAA. Although the title of approaches would meet the minimum
In implementing section 128, the EPA section 128 is ‘‘State boards,’’ the requirements of section 128, the statute
has identified a number of key language of subsection 128(a)(2) also explicitly authorizes states to adopt
considerations relevant to evaluation of explicitly applies where the head of an more stringent requirements, for
a SIP submission. EPA has identified executive agency, rather than a board or example to impose additional
these considerations in the 1978 body, approves permits or enforcement requirements for recusal of board
guidance and in subsequent rulemaking orders. In instances where the head of members from decisions, above and
actions on SIP submissions relevant to an executive agency delegates his or her beyond the explicit board composition
section 128, whether as SIP revisions for power to approve permits or requirements. Although such recusal
this specific purpose or as an element of enforcement orders, or where statutory alone does not meet the requirements of
broader actions on infrastructure SIP authority to approve permits or section 128, states have the authority to
submissions for one or more NAAQS. enforcement orders is nominally vested require that over and above the explicit
Each state must meet the in another state official, the requirement requirements of section 128. These
requirements of section 128 through to adequately disclose potential approaches give states flexibility in
provisions that EPA approves into the conflicts of interest still applies. In other implementing section 128, while still
state’s SIP and are thus made federally words, EPA interprets section 128(a)(2) ensuring consistency with the statute.
enforceable. Section 128 explicitly to apply to all states, regardless of EPA has evaluated the New Rule I
mandates that each SIP ‘‘shall contain whether a state board or body approves Definitions, II Board Action, and III
requirements’’ that satisfy subsections permits or enforcement orders under the Reporting (available within this docket)
128(a)(1) and 128(a)(2). A mere narrative CAA or whether a head of a state agency from the State in light of the
description of state statutes or rules, or (or his/her delegates) performs these requirements of section 128, these key
of a state’s current or past practice in duties. Thus, all state SIPs must contain considerations previously noted, and
constituting a board or body and in provisions that require adequate the recommendations in the 1978
disclosing potential conflicts of interest, disclosure of potential conflicts of guidance. The Montana Code creates a
is not a requirement contained in the interest in order to meet the Board of Environmental Review (BER)
SIP and does not satisfy the plain text requirements of subsection 128(a)(2). which consists of seven members
of section 128. The question of which entities or parties appointed by the Governor. A person
Subsection 128(a)(1) applies only to must be subject to such disclosure who is directly and adversely affected
states that have a board or body that is requirements must be evaluated by by the Montana DEQ’s approval or
denial of a permit to construct an air
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composed of multiple individuals and states and EPA in light of the specific
that, among its duties, approves permits facts and circumstances of each state’s pollution source may request a hearing
regulatory structure. before the BER and the BER may
13 Memorandum from David O. Bickart, Deputy A state may satisfy the requirements uphold, alter, or reverse decisions of the
General Counsel, to Regional Air Directors, of section 128 by submitting for Montana DEQ. Similarly, a person who
Guidance to States for Meeting Conflict of Interest adoption into the SIP a provision of participated in the comment period on
Requirements of Section 128 (Mar. 2, 1978).
14 H.R. Rep. 95–564 (1977), reprinted in 3 state law that closely tracks or mirrors Montana DEQ’s issuance, renewal,
Legislative History of the Clean Air Act the language of the applicable amendment, or modification of a title V
Amendments of 1977, 526–27 (1978). provisions of section 128. A state may operating permit may request a hearing
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before the BER and the BER may and do not derive a ‘‘significant portion reports by the state agency with any
uphold, alter, or reverse decisions of the of income’’ from ‘‘regulated persons’’ as emission limitations or standards
Montana DEQ. Finally, a person who defined in New Rule I (ARM 17.8.150) established pursuant to the Act, which
receives an enforcement order from Definitions (4)(a), (b) and (c). The board reports shall be available at reasonable
Montana DEQ under Chapter 2 of Title member must file with the BER a times for public inspection.
75, Air Quality, may request a hearing written withdrawal of certification if The provisions cited by Montana
before the BER and the BER may they no longer represent the public (ARM 17.8.105 and 17.8.106) pertain to
uphold, alter, or reverse decisions of the interest or has begun to derive a testing requirements and protocols.
Montana DEQ. ‘‘significant portion of income 16’’ from
Montana also incorporates by reference
As EPA has explained in other ‘‘regulated persons,’’ as defined in New
rulemaking actions, e.g., 78 FR 32613 40 CFR part 51, appendix P, regarding
Rule I (5) and (3)(a) and (b).
(May 31, 2013), we interpret section minimum monitoring requirements.
Furthermore, board members must file
128(a)(1) to mean that boards that are (See ARM 17.8.103(1)(D)). In addition,
with the BER a written disclose of any
the potential final decisionmaker via ‘‘potential conflicts of interest’’ as Montana provides for monitoring,
permit and enforcement order appeals defined in New Rule I (2)(a) and (b). recordkeeping, and reporting
‘‘approve’’ those permits and New Rule I defines ‘‘potential conflict of requirements for sources subject to
enforcement orders. For example, by interest’’ as ‘‘(a) any income from a minor and major source permitting
being the final decisionmaker with regulated person; or (b) any interest or Furthermore, Montana is required to
respect to questions such as whether a relationship that would preclude the submit emissions data to the EPA for
source receives a permit and the specific individual having the interest or purposes of the National Emissions
contents of such a permit, the board is relationship from being considered one Inventory (NEI). The NEI is the EPA’s
an entity that approves the permit who represents the public interest.’’ central repository for air emissions data.
within the meaning of 128(a)(1). Thus, This definition is consistent with the The EPA published the Air Emissions
the BER is subject to the requirements suggested definition in the 1978 Reporting Rule (AERR) on December 5,
of 128(a)(1). guidance. We believe Montana’s 2008, which modified the requirements
Montana’s New Rule II Board Action, submission of New Rule I and III for collecting and reporting air
provides that the BER must be satisfies the requirements of subsection emissions data (73 FR 76539). The
composed in conformance with 128(a)(2). AERR shortened the time states had to
requirements of section 128 of the CAA For the foregoing reasons, the EPA report emissions data from 17 to 12
for all permits and enforcement orders believes that the New Rules I (ARM months, giving states one calendar-year
initiated under Montana’s air pollution 17.8.150), II (ARM 17.8.151), and III to submit emissions data. All states are
control authority. In essence, the rule (ARM 17.8.152) adopted by the BER on required to submit a comprehensive
prohibits the BER from taking action if October 16, 2015 and submitted to EPA emissions inventory every three years
the BER does not meet the requirements for inclusion in the SIP on December 17, and report emissions for certain larger
of section 128(a)(1). The State has 2015 contains provisions that meet the sources annually through the EPA’s
submitted New Rule II (ARM 17.8.151) requirements of section 128(a)(1) and online Emissions Inventory System.
to EPA for adoption into their SIP, thus section 128(a). Accordingly, we are States report emissions data for the six
making a legally binding requirement proposing approval of that submission criteria pollutants and their associated
that the BER be comprised of a majority and also proposing approval of the precursors—nitrogen oxides, sulfur
of members that represent the public infrastructure SIP submission as
dioxide, ammonia, lead, carbon
interest and do not derive a significant meeting the requirements of section 128
monoxide, particulate matter and
portion of their income from parties for the 2008 Pb, 2008 ozone, 2010 NO2,
volatile organic compounds. Many
subject to permit requirements or 2010 SO2 and 2012 PM2.5 NAAQS.
7. Stationary source monitoring states also voluntarily report emissions
enforcement orders under the CAA. The of hazardous air pollutants. Montana
definitions of ‘‘regulated person,’’ system: Section 110(a)(2)(F) requires: (i)
The installation, maintenance, and made its latest update to the NEI in
‘‘represent the public interest,’’ and April 2013. EPA compiles the emissions
‘‘significant portion of income’’ are replacement of equipment, and the
implementation of other necessary data, supplementing it where necessary,
consistent with the recommendations in and releases it to the general public
our 1978 guidance. We believe steps, by owners or operators of
stationary sources to monitor emissions through the Web site http://www.epa.
Montana’s submission of New Rule II gov/ttn/chief/eiinformation.html.
satisfies the requirements of subsection from such sources; (ii) Periodic reports
128(a)(1). on the nature and amounts of emissions Based on the analysis above, we
To meet the requirements of and emissions-related data from such propose to approve the Montana SIP as
subsection 128(a)(2), the State’s New sources; and (iii) Correlation of such meeting the requirements of CAA
Rule III (ARM 17.8.152) Reporting, section 110(a)(2)(F) for the 2008 Pb,
includes disclosure requirements 16 New Rule I defines ‘‘significant portion of 2008 ozone, 2010 NO2, 2010 SO2 and
income’’ as ‘‘(5) ten percent or more of gross 2012 PM2.5 NAAQS.
applying to members of the BER. At the personal income for a calendar year, including
first meeting each calendar year, retirement benefits, consulting fees, and stock 8. Emergency powers: Section
members of the BER must file with the dividends, except that it shall mean 50 percent or 110(a)(2)(G) of the CAA requires
BER secretary a written certification that more of gross personal income for a calendar year infrastructure SIPs to ‘‘provide for
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if the recipient is over 60 years of age and is
they ‘‘represent the public interest 15’’ receiving such portion pursuant to retirement, authority comparable to that in [CAA
pension, or similar arrangement. For purposes of section 303] and adequate contingency
15 New Rule I defines ‘‘represent the public this section, income derived from mutual-fund plans to implement such authority.’’
interest’’ as a person who ‘‘(4) does not: (a) Own payments, or from other diversified investments as
a controlling interest in or have five percent or more to which the recipient does not know the identity Under CAA section 303, the EPA
of his or her capital invested in a regulated person; of the primary sources of income, shall be Administrator has authority to bring suit
(b) serve as attorney for, act as consultant for, or considered part of the recipient’s gross personal to immediately restrain an air pollution
serve as an officer or director of a regulated person; income but shall not be treated as income derived
or (c) hold any other official or contractual from persons subject to permits or enforcement
source that presents an imminent and
relationship with a regulated person.’’ orders under the Clean Air Act.’’ substantial endangerment to public
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![4236 Federal Register / Vol. 81, No. 16 / Tuesday, January 26, 2016 / Proposed Rules
meeting the requirements of CAA specifically to remove the phrase ‘‘24- prescribed with respect to the SIP
section 110(a)(2)(G) for the 2008 Pb, hour average’’ in ARM outside of the nonattainment areas.
2008 ozone, and 2010 NO2, 2010 SO2 17.8.818(7)(a)(iii). For the same reason, Therefore, we propose to approve the
and 2012 PM2.5 NAAQS. EPA proposes to conditionally approve Montana SIP as meeting the CAA
9. Future SIP revisions: Section Montana’s infrastructure SIP with section 110(a)(2)(K) for the 2008 Pb,
110(a)(2)(H) requires that SIPs provide regard to the requirement in section 2008 ozone, 2010 NO2, 2010 SO2 and
for revision of such plan: (i) From time 110(a)(2)(J) that the SIP meet the 2012 PM2.5 NAAQS.
to time as may be necessary to take applicable requirements of part C of title 12. Permitting fees: Section
account of revisions of such national I the Act. 110(a)(2)(L) requires the owner or
primary or secondary ambient air Finally, with regard to the applicable operator of each major stationary source
quality standard or the availability of requirements for visibility protection, to pay to the permitting authority, as a
improved or more expeditious methods EPA recognizes states are subject to condition of any permit required under
of attaining such standard; and (ii), visibility and regional haze program this act, a fee sufficient to cover: (i) The
except as provided in paragraph (3)(C), requirements under part C of the Act. In reasonable costs of reviewing and acting
whenever the Administrator finds on the event of the establishment of a new upon any application for such a permit;
the basis of information available to the NAAQS, however, the visibility and and (ii) if the owner or operator receives
Administrator that the SIP is regional haze program requirements a permit for such source, the reasonable
substantially inadequate to attain the under part C do not change. Thus, we costs of implementing and enforcing the
NAAQS which it implements or to find that there are no applicable terms and conditions of any such permit
otherwise comply with any additional (not including any court costs or other
visibility requirements under section
requirements under this [Act]. costs associated with any enforcement
110(a)(2)(J) when a new NAAQS
Montana’s statutory provisions in the action), until such fee requirement is
becomes effective.
Montana CAA at 75–2–101 et seq., give superseded with respect to such sources
the BER sufficient authority to meet the Based on the above analysis, we by the Administrator’s approval of a fee
requirements of 110(a)(2)(H). Therefore, propose to approve the Montana SIP as program under title V.
we propose to approve Montana’s SIP as meeting the requirements of CAA Montana requires an applicant
meeting the requirements of CAA section 110(a)(2)(J) for the 2008 Pb, 2008 proposing to construct or modify an air
section 110(a)(2)(H). ozone, 2010 NO2, 2010 SO2 and 2012 pollution source to pay an application
10. Consultation with government PM2.5 NAAQS with regard to sections fee, ARM 17.8.504 (State rule only).
officials, public notification, PSD and 121 and 127 of the CAA, and Sources must also pay an annual
visibility protection: Section 110(a)(2)(J) conditional approval of section operation fee, ARM 17.8.505 (State rule
requires that each SIP ‘‘meet the 110(a)(2)(J) with regard to meeting the only). Under ARM 17.8.823(1), Source
applicable requirements of section 121 applicable requirements of part C Information for PSD of air quality, ‘‘(1)
of this title (relating to consultation), relating to PSD. The owner or operator of a proposed
section 127 of this title (relating to 11. Air quality and modeling/data: source or modification shall submit the
public notification), and part C of this Section 110(a)(2)(K) requires each SIP permit application fee required
subchapter (relating to PSD of air provide for: (i) The performance of such pursuant to ARM 17.8.504 and all
quality and visibility protection).’’ air quality modeling as the information necessary to perform any
The State has demonstrated that it has Administrator may prescribe for the analysis or make any determination
the authority and rules in place to purpose of predicting the effect on required under procedures established
provide a process of consultation with ambient air quality of any emissions of in accordance with this subchapter.’’
general purpose local governments, any air pollutant for which the ARM 17.8.823 was adopted into
designated organizations of elected Administrator has established a Montana’s SIP on August 13, 2001 (66
officials of local governments and any NAAQS; and (ii) the submission, upon FR 42427). Additionally, ARM
Federal Land Manager having authority request, of data related to such air 17.8.1704, Registration Fees, for oil and
over federal land to which the SIP quality modeling to the Administrator. gas facilities states that ‘‘(1) The
applies, consistent with the Montana’s PSD program (see ARM registration fee required by ARM
requirements of CAA section 121 (see 59 17.8.821(1)) requires estimates of 17.8.504 must be submitted to the
FR 2988, Jan. 20, 1994). Furthermore, ambient air concentrations be based on department with each registration
Montana’s Emergency Episode applicable air quality models specified submitted under this subchapter. No fee
Avoidance Plan, approved into the SIP in Appendix W of 40 CFR part 51, is required for notifying the department,
(71 FR 19, Jan. 3, 2006), meets the pertaining to the Guidelines on Air pursuant to ARM 17.8.1703(4), of
general requirements of CAA section Quality Models. Additionally, MCA 75– changes to registration information. (2)
127. 2–211. Powers of board and MCA 75–2– The registration fee must be paid in its
Turning to the requirement in section 112. Powers and responsibilities of entirety at the time the registration form
110(a)(2)(J) that the SIP meet the department, provide Montana with the is submitted to the department.’’ ARM
applicable requirements of part C of title broad authority to develop and 17.8.1703 was adopted into the Montana
I of the Act, EPA has evaluated this implement an air quality control SIP on November 19, 2013 (78 FR
requirement in the context of program that includes conducting air 69296).
infrastructure element (C) in section quality modeling to predict the effect on We also note that all the State SIPs we
VI.3 above. As discussed there, EPA are proposing to approve in this action
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ambient air quality of any emissions of
proposes to conditionally approve any air pollutant for which a NAAQS cite the regulation that provides for
Montana’s infrastructure SIP for the has been promulgated.23 As a result, the collection of permitting fees under
requirement in 110(a)(2)(C) that the SIP SIP provides for such air quality Montana’s approved title V permit
include a permit program as required in modeling as the Administrator has program (65 FR 37049, June 13, 2000).
part C, on the condition that the State As discussed in that approval, the State
adopts and submits specific revisions 23 See email from David Klemp, Montana State demonstrated that the fees collected
within one year of EPA’s final action on Air Director, to EPA on Dec. 12, 2015, contained were sufficient to administer the
these infrastructure submittals; within this docket. program.
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![4238 Federal Register / Vol. 81, No. 16 / Tuesday, January 26, 2016 / Proposed Rules
TABLE 3—LIST OF MONTANA INFRASTRUCTURE ELEMENTS AND REVISIONS THAT EPA IS PROPOSING TO CONDITIONALLY
APPROVE—Continued
Proposed for conditional approval
March 24, 2015 submittal—Revisions to ARM, Prevention of Significant Deterioration:
ARM 17.8.818(7)(a)(iii).
TABLE 4—LIST OF MONTANA INFRASTRUCTURE ELEMENTS THAT EPA IS PROPOSING TO DISAPPROVE
Proposed for disapproval
February 10, 2010 submittal—1997 and 2006 PM2.5 NAAQS:
(D)(i)(II) element 4 for the 2006 PM2.5 NAAQS.
January 3, 2013 submittal—2008 Ozone NAAQS:
(D)(i)(II) element 4.
June 4, 2013 submittal—2010 NO2 NAAQS:
(D)(i)(II) element 4.
July 15, 2013 submittal—2010 SO2 NAAQS:
(D)(i)(II) element 4.
December 17, 2015 submittal—2012 PM2.5 NAAQS:
(D)(i)(II) element 4.
TABLE 5—LIST OF MONTANA INFRASTRUCTURE ELEMENTS AND REVISIONS THAT EPA IS PROPOSING TO TAKE NO
ACTION ON
[Proposed for no action]
Reason for proposed ‘‘No Action’’
Revision Revision
Revision made
Revision to be deletes superseded by
Revised section in a separate
made in future section of the revision in
rulemaking
rulemaking ARM never March 24,
action
action approved into 2015 State
(80 FR 72937) State’s SIP submittal
January 3, 2013 submittal—2008 Ozone NAAQS:
(D)(i)(I) elements 1 and 2 ......................................................................... ........................ x ........................ ........................
July 15, 2013 submittal—2010 SO2 NAAQS:
(D)(i)(I) elements 1 and 2 ......................................................................... x ........................ ........................ ........................
December 17, 2015 submittal—2012 PM2.5 NAAQS:
(D)(i)(I) elements 1 and 2 ......................................................................... x ........................ ........................ ........................
August 21, 2012 submittal—Revisions to ARM, Prevention of Significant De-
terioration:
ARM 17.8.818(7)(a)(iii) .............................................................................. ........................ ........................ ........................ x
ARM 17.8.820(2) ....................................................................................... ........................ ........................ ........................ x
March 24, 2015 submittal—Revisions to ARM, Prevention of Significant De-
terioration:
ARM 17.8.820(2) ....................................................................................... ........................ ........................ x ........................
VIII. Incorporation by Reference (see the ADDRESSES section of this imposed by state law. For that reason,
preamble for more information). this proposed action:
In this rule, the EPA is proposing to
IX. Statutory and Executive Orders • Is not a ‘‘significant regulatory
include in a final EPA rule regulatory
Review action’’ subject to review by the Office
text that includes incorporation by of Management and Budget under
reference. In accordance with Under the CAA, the Administrator is Executive Order 12866 (58 FR 51735,
requirements of 1 CFR 51.5, the EPA is required to approve a SIP submission Oct. 4, 1993);
proposing to incorporate by reference that complies with the provisions of the
• Does not impose an information
the Administrative Rules of Montana Act and applicable federal regulations
collection burden under the provisions
pertaining to major source permitting (42 U.S.C. 7410(k), 40 CFR 52.02(a)).
of the Paperwork Reduction Act (44
and PM2.5 emission limits discussed in Thus, in reviewing SIP submissions,
U.S.C. 3501 et seq.);
EPA’s role is to approve state choices,
mstockstill on DSK4VPTVN1PROD with PROPOSALS
section VI. 3. Program for enforcement
of control measures and section VI. b. provided that they meet the criteria of • Is certified as not having a
the CAA. Accordingly, this proposed significant economic impact on a
Sub-element (ii): State boards, of this
action merely approves some state law substantial number of small entities
preamble. The EPA has made, and will
as meeting federal requirements and under the Regulatory Flexibility Act (5
continue to make, these documents
disapproves other state law because it U.S.C. 601 et seq.);
generally available electronically
through www.regulations.gov and/or in does not meet federal requirements; this • Does not contain any unfunded
hard copy at the appropriate EPA office proposed action does not impose mandate or significantly or uniquely
additional requirements beyond those affect small governments, as described
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![Federal Register / Vol. 81, No. 16 / Tuesday, January 26, 2016 / Proposed Rules 4239
in the Unfunded Mandates Reform Act ENVIRONMENTAL PROTECTION http://www2.epa.gov/dockets/
of 1995 (Pub. L. 104–4); AGENCY commenting-epa-dockets.
• Does not have federalism Docket. Publicly available documents
40 CFR Part 63 relevant to this action are available for
implications as specified in Executive
public inspection either electronically at
Order 13132 (64 FR 43255, Aug. 10, [EPA–HQ–OAR–2015–0747; FRL–9941–59– http://www.regulations.gov or in hard
1999); OAR] copy at the EPA Docket Center, Room
• Is not an economically significant 3334, 1301 Constitution Avenue NW.,
RIN 2060–AS13
regulatory action based on health or Washington, DC. The Public Reading
safety risks subject to Executive Order Oil and Natural Gas Sector: National Room is open from 8:30 a.m. to 4:30
13045 (62 FR 19885, April 23, 1997); Emission Standards for Hazardous Air p.m., Monday through Friday, excluding
• Is not a significant regulatory action Pollutants; Extension of Comment legal holidays. A reasonable fee may be
subject to Executive Order 13211 (66 FR Period charged for copying. The official public
28355, May 22, 2001); docket for this rulemaking is Docket ID
AGENCY: Environmental Protection No. EPA–HQ–OAR–2015–0747.
• Is not subject to requirements of Agency (EPA). World Wide Web. The EPA Web site
Section 12(d) of the National ACTION: Request for information; for this rulemaking is at http://www3.
Technology Transfer and Advancement extension of comment period. epa.gov/airquality/oilandgas/
Act of 1995 (15 U.S.C. 272 note) because actions.html.
application of those requirements would SUMMARY: On November 27, 2015, the
FOR FURTHER INFORMATION CONTACT: For
be inconsistent with the CAA; and, Environmental Protection Agency (EPA)
requested information related to further information about this action,
• Does not provide EPA with the hazardous air pollutant emissions from contact Mr. Matthew Witosky, Sector
discretionary authority to address, as sources in the oil and natural gas Policies and Programs Division (E143–
appropriate, disproportionate human production and natural gas transmission 05), Office of Air Quality Planning and
health or environmental effects, using and storage segments of the oil and Standards, Environmental Protection
practicable and legally permissible natural gas sector. The deadline to Agency, Research Triangle Park, North
methods, under Executive Order 12898 respond to our request was January 26, Carolina 27711, telephone number:
(59 FR 7629, Feb. 16, 1994). 2016. In response to requests from (919) 541–2865; facsimile number: (919)
several stakeholders, the EPA is 541–3740; email address:
The SIP is not approved to apply on
extending the period to respond to our witosky.matthew@epa.gov.
any Indian reservation land or in any
request for information to March 11, SUPPLEMENTARY INFORMATION:
other area where EPA or an Indian tribe
has demonstrated that a tribe has 2016. Comment Period
jurisdiction. In those areas of Indian DATES: The public comment period for After considering the requests to
country, the rule does not have tribal the request for information published in extend the public comment period, the
implications and will not impose the Federal Register on November 27, EPA has decided to extend the public
substantial direct costs on tribal 2015 (80 CFR 74068), is being extended. comment period until March 11, 2016.
governments or preempt tribal law as Written comments must be received on This extension will provide the
specified by Executive Order 13175 (65 or before March 11, 2016. additional time requested by the public
FR 67249, November 9, 2000). ADDRESSES: Comments. Submit your to review the request and gather data to
comments, identified by Docket ID No. respond.
List of Subjects in 40 CFR Part 52
EPA–HQ–OAR–2015–0747, to the Dated: January 14, 2016.
Environmental protection, Air Federal eRulemaking Portal: http:// Stephen D. Page,
pollution control, Carbon monoxide, www.regulations.gov. Follow the online
Director, Office of Air Quality Planning and
Incorporation by reference, instructions for submitting comments. Standards.
Intergovernmental relations, Once submitted, comments cannot be
[FR Doc. 2016–01508 Filed 1–25–16; 8:45 am]
Greenhouse gases, Lead, Nitrogen edited or withdrawn. The EPA may
BILLING CODE 6560–50–P
dioxide, Ozone, Particulate matter, publish any comment received to its
public docket. Do not submit
Reporting and recordkeeping
electronically any information you
requirements, Sulfur oxides, Volatile DEPARTMENT OF HEALTH AND
consider to be Confidential Business
organic compounds. Information (CBI) or other information HUMAN SERVICES
Authority: 42 U.S.C. 7401 et seq. whose disclosure is restricted by statute. Indian Health Service
Dated: January 12, 2016. Multimedia submissions (audio, video,
etc.) must be accompanied by a written 42 CFR Part 136
Shaun L. McGrath,
comment. The written comment is
Regional Administrator, Region 8. considered the official comment and RIN 0905AC97
[FR Doc. 2016–01403 Filed 1–25–16; 8:45 am] should include discussion of all points
BILLING CODE 6560–50–P you wish to make. The EPA will Catastrophic Health Emergency Fund
generally not consider comments or
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AGENCY: Indian Health Service, HHS.
comment contents located outside of the ACTION: Proposed rule.
primary submission (i.e., on the web,
cloud, or other file sharing system). For SUMMARY: The Indian Health Service
additional submission methods, the full (IHS) administers the Catastrophic
EPA public comment policy, Health Emergency Fund, The purpose of
information about CBI or multimedia CHEF is to meet the extraordinary
submissions, and general guidance on medical costs associated with the
making effective comments, please visit treatment of victims of disasters or
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Document Created: 2018-02-02 12:38:04
Document Modified: 2018-02-02 12:38:04
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Written comments must be received on or before February 25, 2016. | |
| Contact | Abby Fulton, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6563, [email protected] | |
| FR Citation | 81 FR 4225 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Carbon Monoxide; Incorporation by Reference; Intergovernmental Relations; Greenhouse Gases; Lead; Nitrogen Dioxide; Ozone; Particulate Matter; Reporting and Recordkeeping Requirements; Sulfur Oxides and Volatile Organic Compounds |
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