[Federal Register Volume 65, Number 1 (Monday, January 3, 2000)]
[Rules and Regulations]
[Pages 16-19]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33622]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MT-001-0016a; FRL-6506-1]
Clean Air Act Approval and Promulgation of Air Quality
Implementation Plan Revision for Montana; Revisions to the Missoula
County Air Quality Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA approves the State implementation plan (SIP) revisions
submitted by the Governor of Montana with a letter dated November 14,
1997. This submittal consists of several revisions to Missoula County
Air Quality Control Program regulations, which were adopted by the
Montana Board of Environmental Review (MBER) on October 31, 1997. These
rules include regulations regarding general definitions, open burning,
and criminal penalties. This submittal also includes revisions to
regulations regarding national standards of performance for new
stationary sources (NSPS) and National Emission Standards for
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Hazardous Air Pollutants (NESHAPs), which will be handled separately.
DATES: This direct final rule is effective on March 3, 2000 without
further notice, unless EPA receives adverse comment by February 2,
2000. If adverse comment is received, EPA will publish a timely
withdrawal of the direct final rule in the Federal Register informing
the public that the rule will not take effect.
ADDRESSES: Mail written comments to Richard R. Long, Director, Air and
Radiation Program, Mailcode 8P-AR, Environmental Protection Agency,
Region VIII, 999 18th Street, Suite 500, Denver, Colorado, 80202-2405.
Documents relevant to this action can be perused during normal business
hours at the Air and Radiation Program, Environmental Protection
Agency, Region VIII, 999 18th Street, Suite 500, Denver, Colorado,
80202-2405. Copies of the incorporation by reference material are
available at the Air and Radiation Docket and Information Center,
Environmental Protection Agency, 401 M Street, SW, Washington, DC,
20460. Copies of the State documents relevant to this action are
available at the Montana Department of Environmental Quality, 1520 E.
6th Avenue, Helena, Montana, 59620-0901.
FOR FURTHER INFORMATION CONTACT: Amy Platt, Environmental Protection
Agency, Region VIII, (303) 312-6449.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'' is
used it means EPA.
I. Background
The Missoula, Montana area was designated nonattainment for
PM10 and classified as moderate under Sections 107(d)(4)(B)
and 188(a) of the Clean Air Act, upon enactment of the Clean Air Act
Amendments of 1990.1 See 56 FR 56694 (Nov. 6, 1991); 40 CFR
81.327 (Missoula and vicinity). The air quality planning requirements
for moderate PM10 nonattainment areas are set out in
Subparts 1 and 4 of Part D, Title I of the Act. The EPA has issued a
``General Preamble'' describing EPA's preliminary views on how EPA
intends to review SIPs and SIP revisions submitted under Title I of the
Act, including those State submittals containing moderate
PM10 nonattainment area SIP requirements (see generally 57
FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992)).
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\1\ The 1990 Amendments to the Clean Air Act made significant
changes to the Act. See Public Law 101-549, 104 Stat. 2399.
References herein are to the Clean Air Act, as amended (``the
Act''). The Clean Air Act is codified, as amended, in the U.S. Code
at 42 U.S.C. 7401, et seq.
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Those States containing initial moderate PM10
nonattainment areas such as Missoula were required to submit, among
other things, several provisions by November 15, 1991. These provisions
are described in EPA's final rulemaking on the Missoula moderate
PM10 nonattainment area SIP (59 FR 2537-2540, January 18,
1994).
EPA has approved subsequent revisions to the Missoula moderate
PM10 SIP. On December 13, 1994 (59 FR 64133), EPA approved
revisions to the Missoula County Air Pollution Control Program
regulations related to, among other things, PM10 and CO
contingency measures, inspections, emergency procedures, minor source
construction permitting, open burning and wood waste burners. On August
30, 1995 (60 FR 45051), EPA approved revisions to the Missoula County
Air Pollution Control Program regulations related to emergency
procedures; the paving of roads, driveways, and parking lots; and solid
fuel burning devices.
II. Analysis of State Submission
A. Procedural Background
The Act requires States to follow certain procedures in developing
implementation plans and plan revisions for submission to EPA. Sections
110(a)(2) and 110(l) of the Act provide that each implementation plan a
State submits must be adopted after reasonable notice and public
hearing.
We also must determine whether a submittal is complete and
therefore warrants further review and action (see section 110(k)(1) of
the Act and 57 FR 13565). EPA's completeness criteria for SIP
submittals can be found in 40 CFR part 51, appendix V. EPA attempts to
determine completeness within 60 days of receiving a submission.
However, the law considers a submittal complete if we don't determine
completeness within six months after we receive it.
To provide for public comment, the Montana Board of Environmental
Review (MBER), after providing adequate notice, held a public hearing
on October 31, 1997 to address the amendments to the Missoula County
air quality rules. Following the public hearing, the MBER approved the
amendments, with a minor clarification to the definition of essential
agricultural burning.
The Governor of Montana submitted the revisions to the Missoula
County air quality rules to EPA with a letter dated November 14, 1997.
The revisions were deemed complete as of May 14, 1998.
B. November 14, 1997 Revisions
As noted above, we will handle separately the revisions in the
November 14, 1997 submittal regarding standards of performance for new
stationary sources and emission standards for hazardous air pollutants.
The revisions to the Missoula County air pollution control rules to be
addressed in this document include revisions to general definitions,
open burning, and changes to criminal penalties which involve the
following sections of the Missoula County Air Quality Control Program:
Chapter IX, Regulations, Standards and Permits, Subchapter 7, General
Provisions and Subchapter 13 Open Burning; and Chapter XII, Criminal
Penalties.
1. Revisions to Chapter IX, Regulations, Standards, and Permits
a. Subchapter 7, General Provisions, Rule 701--General Definitions:
Revisions to this rule include the deletion of definitions for
``salvage operation,'' ``trade waste,'' and ``wood-waste burners.''
These definitions were added to the definitions section of the Missoula
County open burning regulations (see subchapter 13 discussed below).
This change was made to be consistent with the Montana statewide open
burning definitions and is approvable.
b. Subchapter 13, Open Burning: The revisions to the open burning
regulations were made, for the most part, to make the county rules
consistent with state rules. Note that there are several places in the
county rules that refer to rule 17.8.610, Major Open Burning Source
Restrictions, of the Administrative Rules of Montana (ARM). This
numbering is a recodification of the federally approved version of the
ARM, in which the Major Open Burning Source Restrictions rule is
numbered 16.8.1304. We will act on the ARM recodification at a later
date.
In some cases, the Missoula County rules are more stringent than
state rules. For example, the County rules require permits year-round
for minor open burners. In addition, the allowed special burning period
for essential agricultural open burning is shorter than that provided
in the State regulations.
These revisions to Missoula County subchapter 13, Open Burning, are
approvable.
2. Revisions to Chapter XII, Criminal Penalties
A revision was made to this chapter to increase the fine for a
violation of the provisions, regulations, or rules of the Missoula
County Air Quality Control
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Program. The fine was increased from $1,000 to $10,000 per day of
violation. This revision is approvable.
III. Final Action
EPA is approving certain sections of Montana's SIP revision, as
submitted by the Governor with a letter dated November 14, 1997. The
revisions being approved involve the following rules and Chapters of
the Missoula County Air Quality Control Program: Chapter IX, Rule 701,
General Definitions; Chapter IX, Rules 1301-1311, regarding open
burning; and Chapter XII, Criminal Penalties.
In addition, the November 14, 1997 submittal included revisions to
regulations regarding standards of performance for new stationary
sources and emission standards for hazardous air pollutants, which are
being handled separately.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. The State requested this action. However, in the
``Proposed Rules'' section of today's Federal Register publication, EPA
is publishing a separate document that will serve as the proposal to
approve the SIP revision if adverse comments should be filed. This rule
will be effective March 3, 2000 without further notice unless the
Agency receives adverse comments by February 2, 2000. If the EPA
receives adverse comments, EPA will publish a timely withdrawal in the
Federal Register informing the public that the rule will not take
effect. EPA will address all public comments in a subsequent final rule
based on the proposed rule. The EPA will not institute a second comment
period on this action. Any parties interested in commenting must do so
at this time.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
B. Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43225, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Under
Executive Order 13132, EPA may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that preempts State law unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
This final rule will not have substantial direct effects on the
State, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999), because it merely approves a state rule
implementing a federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. Thus, the requirements of section 6 of the Executive Order do
not apply to this rule.
C. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
D. Executive Order 13084
Executive Order 13084: Consultation and Coordination with Indian
Tribal Governments. Under Executive Order 13084, EPA may not issue a
regulation that is not required by statue, that significantly affects
or uniquely affects the communities of Indian tribal governments, and
that imposes substantial direct compliance costs on those communities,
unless the Federal government provides the funds necessary to pay the
direct compliance costs incurred by the tribal governments, or EPA
consults with those governments. If EPA complies by consulting,
Executive Order 13084 requires EPA to provide to the Office of
Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected
officials and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.'' Today's rule does not significantly or uniquely affect
the communities of Indian tribal governments. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
This final rule will not have a significant impact on a substantial
number of small entities because SIP approvals under section 110 and
subchapter I, part D of the Clean Air Act do not create any new
requirements but simply approve requirements that the State is already
imposing. Therefore, because the Federal SIP approval does not create
any new requirements, I certify that this action will not have
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under
the Clean Air Act, preparation of a flexibility analysis would
constitute Federal inquiry into the economic reasonableness of state
action. The
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Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66
(1976); 42 U.S.C. 7410(a)(2).
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes not new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
G. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of Congress and to the Comptroller General of the United
States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U. S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This rule is not a ``major rule'' as defined by 5 U.S.C.
804(2).
H. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.
I. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by March 3, 2000. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Particulate matter, and Reporting and recordkeeping
requirements.
Dated: November 30, 1999.
Max H. Dodson,
Acting Regional Administrator, Region VIII.
Chapter I, title 40 of the Code of Federal Regulations is amended
as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart BB--Montana
2. Section 52.1370 is amended by adding paragraph (c)(48) to read
as follows:
Sec. 52.1370 Identification of plan.
* * * * *
(c) * * *
(48) The Governor of Montana submitted revisions to the Missoula
County Air Quality Control Program with a letter dated November 14,
1997. The revisions address general definitions, open burning, and
criminal penalties.
(i) Incorporation by reference.
(A) Board order issued on October 31, 1997 by the Montana Board of
Environmental Review approving the amendments to Missoula County Air
Quality Control Program Chapters IX and XII regarding general
definitions, open burning, and criminal penalties.
(B) Missoula County Air Quality Control Program, Chapter IX, Rule
701, General Definitions, effective October 31, 1997.
(C) Missoula County Air Quality Control Program, Chapter IX, Rules
1301-1311, regarding open burning, effective October 31, 1997.
(D) Missoula County Air Quality Control Program, Chapter XII,
Criminal Penalties, effective October 31, 1997.
[FR Doc. 99-33622 Filed 12-30-99; 8:45 am]
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