02-20988. Approval and Promulgation of Air Quality Implementation Plans for the State of Montana; Revision to the Administrative Rules of Montana

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the Governor of Montana on April 30, 2001. The April 30, 2001 submittal revises the State's Administrative Rules of Montana (ARM) by adding a Credible Evidence Rule. The intended effect of this action is to make the Credible Evidence Rule Federally enforceable. Finally, the Governor's April 30, 2001 submittal contains other SIP revisions which will be addressed separately. This action is being taken under section 110 of the Clean Air Act (CAA).

DATES:

Written comments must be received on or before September 18, 2002.

ADDRESSES:

Written comments may be mailed to Richard R. Long, Director, Air and Radiation Program, Mailcode 8P-AR, Environmental Protection Agency (EPA), Region 8, 999 18th Street, Suite 300, Denver, Colorado, 80202. Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air and Radiation Program, Environmental Protection Agency, Region 8, 999 18th Street, Suite 300, Denver, Colorado, 80202. Copies of the State documents relevant to this action are available for public inspection at the Montana Department of Environmental Quality, Air and Waste Management Bureau, 1520 E. 6th Avenue, Helena, Montana 59620.

FOR FURTHER INFORMATION CONTACT:

Laurel Dygowski, EPA, Region 8, [phone].

SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we” or “our” is used means EPA.

I. Analysis of the State Submittal

A. Procedural Background

The Act requires States to observe certain procedural requirements in developing implementation plans and plan revisions for submission to EPA. Section 110(a)(2) of the Act provides that each implementation plan admitted by a State must be adopted after reasonable notice and public hearing. Section 110(1) of the Act similarly provides that each revision to an implementation plan submitted by a State under the Act must be adopted by such State after reasonable notice and public hearing.

EPA also must determine whether a submittal is complete and therefore warrants further EPA review and action (see section 110(k)(1) and 57 FR 13565). EPA's completeness criteria are set out at 40 CFR part 51, appendix V. EPA attempts to make completeness determinations within 60 days of receiving a submission. However, a submittal is deemed complete by operation of law if a completeness determination is not made by EPA six months after receipt of submission.

To entertain public comment, the State of Montana, after providing adequate public notice, held several public hearings to address the revisions to the SIP. Following the public hearings and public comment period, the Montana Board of Environmental Review adopted the revisions. Revisions to ARM 17.8.132 were adopted on November 17, 2000.

The Governor of Montana submitted the revisions to the SIP with a letter dated April 30, 2001. The SIP revisions were reviewed by EPA to determine completeness in accordance with the completeness criteria set out at 40 CFR part 51, appendix V. In a June 29, 2001 letter, the EPA informed the State that the submittal was found to be complete.

B. Summary of SIP Revisions

ARM 17.8.132—Credible Evidence

Montana has adopted a credible evidence rule (ARM 17.8.132) to comply with the EPA's final rule concerning credible evidence. On February 24, 1997, EPA promulgated regulations under section 113(a) and 113(e)(1) of the CAA that gave EPA authority to use all available data to prove CAA violations (see 62 FR 8314-8328). The final rule requires states to include provisions in their SIPs to allow for the use of credible evidence for the purposes of submitting compliance certifications and for establishing whether or not a person has violated a standard in a SIP.

In accordance with section 110(k)(5) of the CAAA SIP Call was issued to the State of Montana on July 7, 1994 which was later superceded by another SIP Call on October 20, 1999. In a letter from William P. Yellowtail, EPA Regional Administrator, to Marc Racicot, Governor of Montana, EPA notified the State of Montana that their SIP was inadequate to comply with sections 110(a)(2)(A) and (C) of the CAA because the SIP could be interpreted to limit the types of credible evidence or information that may be used for determining compliance and establishing violations. In response to the SIP Call, the State of Montana adopted and submitted a new credible evidence rule, ARM 17.8.132. EPA believes the State's new credible evidence rule meets the requirements of 40 CFR 51.212(c) and is proposing approval of it into the SIP.

Section 110(l) of the Clean Air Act states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress towards attainment of the NAAQS or any other applicable requirements of the Act. The Montana SIP revisions that are the subject of this document do not interfere with the maintenance of the NAAQS or any other applicable requirement of the Act because the State of Montana's new credible evidence rule meets the federal requirements in 40 CFR 51.212(c) and this rule will enhance the State's efforts in implementing the Clean Air Act. Therefore, section 110(l) requirements are satisfied.

II. Proposed Action

EPA is proposing to approve Montana's Credible Evidence Rule (ARM 17.8.132) submitted on April 30, 2001. EPA is soliciting public comments on the issues discussed in this document or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA Regional office listed in the ADDRESSES section of this document.

III. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve 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. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Authority: 42 U.S.C. 7401 et seq.

Dated: August 13, 2002.

Robert E. Roberts,

Regional Administrator, Region 8.