[Federal Register Volume 60, Number 168 (Wednesday, August 30, 1995)]
[Rules and Regulations]
[Pages 45051-45054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21468]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MT31-1-7007a; FRL-5275-1]
Clean Air Act Approval and Promulgation of PM10 State
Implementation Plan for Montana; Missoula Air Pollution Control Program
Regulations
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 State of Montana with a letter dated March 3, 1995.
This submittal consists of several revisions to Missoula City-County
Air Pollution Control Program regulations, which were adopted by the
Montana Board of Health and Environmental Sciences (MBHES) on September
16, 1994. These rules include regulations regarding emergency
procedure, paving of roads, driveways, and parking lots, street
sweeping, National standards of performance for new stationary sources
(NSPS), National Emission Standards for Hazardous Air Pollutants
(NESHAPs), and solid fuel burning devices. Further, this submittal
satisfies the one remaining commitment made by the State in a previous
PM10 SIP submittal.
DATES: This final rule is effective on October 30, 1995 unless adverse
comments are received by September 29, 1995. If the effective date is
delayed, timely notice will be published in the Federal Register.
ADDRESSES: Copies of the State's submittal and other information are
available for inspection during normal business hours at the following
locations:
Air Programs Branch, Environmental Protection Agency, Region VIII,
999 18th Street, suite 500, Denver, Colorado 80202-2405; Montana
Department of Health and Environmental Sciences, Air Quality Division,
Cogswell Building, Helena, Montana 59620-0901; and The Air and
Radiation Docket and Information Center, 401 M Street SW., Washington,
DC 20460.
FOR FURTHER INFORMATION CONTACT: Amy Platt, 8ART-AP, Environmental
Protection Agency, Region VIII, (303) 293-1769.
SUPPLEMENTARY INFORMATION:
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.2 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)). Because EPA is describing
its interpretations here only in broad terms, the reader should refer
to the General Preamble for a more detailed discussion of the
interpretations of Title I advanced in this action and the supporting
rationale.
\1\ The 1990 Amendments to the Clean Air Act made significant
changes to the Act. See Pub. L. No. 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. Sections 7401, et seq.
\2\ Subpart 1 contains provisions applicable to nonattainment
areas generally and Subpart 4 contains provisions specifically
applicable to PM10 nonattainment areas. At times, Subpart 1 and
Subpart 4 overlap or conflict. EPA has attempted to clarify the
relationship among these provisions in the ``General Preamble'' and,
as appropriate, in today's notice and supporting information.
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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).
In a letter dated August 20, 1991, the Governor of Montana
submitted to EPA the Missoula City-County Air Pollution
[[Page 45052]]
Control Program as a revision to the Montana SIP.
EPA's review identified numerous deficiencies, including
inconsistencies with the State regulations, as well as deficiencies
similar to those EPA identified in the State regulations. In a December
4, 1991 letter from the EPA Region VIII Administrator to the Governor
of Montana, the deficiencies in the Missoula regulations were outlined
in detail (this letter is available for public inspection at the EPA
Region VIII address listed at the beginning of this notice). The
problem areas included rules involving emergency procedures,
permitting, open burning, wood-waste burners, NSPS, NESHAPs, and
variances.
To address EPA's concerns, the State took commitments through the
public hearing process on November 23, 1992 and submitted the
commitments to EPA in a letter dated November 30, 1992, as additional
tasks to be performed to correct the deficiencies in the Missoula and
statewide SIP. Montana requested that EPA consider the August 20, 1991
submittal concurrent with its June 4, 1992 PM10 SIP submittal and
the conditions outlined in the State's commitments.
As a result, EPA approved a large portion of the Missoula City-
County Air Pollution Control Program with its approval of the Missoula
moderate PM10 nonattainment area SIP on January 18, 1994 (59 FR
2537-2540). In the January 18, 1994 rulemaking, EPA delayed action on
the regulations related to the Governor's commitments.
In a March 2, 1994 submittal, the State satisfied several of its
November 30, 1992 commitments related to the Missoula City-County Air
Pollution Control Program. Accordingly, EPA approved the related
regulations on December 13, 1994 (59 FR 64133-64139). However, one of
the November 30, 1992 commitments was still outstanding. That
commitment addressed Missoula NSPS and NESHAP regulations.
II. This Action
Section 110(k) of the Act sets out provisions governing EPA's
review of SIP submittals (see 57 FR 13565-13566). The Governor of
Montana submitted revisions to the SIP for Missoula with a letter dated
March 3, 1995. The revisions amend several of the Missoula City-County
Air Pollution Control Program regulations, including the regulations
related to NSPS and NESHAPs.
A. Analysis of State Submission
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 submitted by a State must be adopted after reasonable notice and
public hearing.3 Section 110(l) 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.
\3\ Also Section 172(c)(7) of the Act requires that plan
provisions for nonattainment areas meet the applicable provisions of
Section 110(a)(2).
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). The EPA's completeness criteria for SIP submittals
are set out at 40 CFR Part 51, Appendix V. The 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 the submission.
To entertain public comment, the State of Montana, after providing
adequate notice, held a public hearing for the local air pollution
control program revisions on September 16, 1994. Following the public
hearing, the local air pollution control program revisions were adopted
by the State.
The local air pollution control program revisions were submitted as
a SIP revision by the Governor with a letter dated March 3, 1995. The
SIP revision was reviewed by EPA to determine completeness in
accordance with the completeness criteria set out at 40 CFR Part 51,
Appendix V. The submittal was found to be complete and a letter dated
April 27, 1995 was forwarded to the Governor indicating the
completeness of the submittals and the next steps to be taken in the
review process.
B. Revisions to the Local Regulations
Four public hearings were held at the local level in December 1993,
and March, May, and July 1994. The Missoula City-County Air Pollution
Control Board adopted the changes to the regulations, and, finally, all
changes were approved at a joint public hearing by the City Council and
County Commissioners on July 25, 1994. At its September 16, 1994 MBHES
public hearing, the Board adopted the local regulation revisions.
Specifically, the revisions are as follows:
1. Chapter XVI was amended to more clearly indicate that upon
approval by the Missoula City Council and Board of County
Commissioners, changes to the local air pollution rules will be
forwarded to the MBHES for final approval. Such amendments and
revisions become effective upon approval by the MBHES.
2. Chapter IX, Subchapter 4, Rule 401 was amended to lower the
level at which PM10 air pollution alerts are called. The level was
changed from 100 g/m3 to 80 g/m3.
3. Chapter IX, Subchapter 14, Rule 1401 was amended to include new
sections which address requirements for the paving of new public roads,
private roads, private driveways, and parking lots in the Air
Stagnation Zone. Such projects must apply for a road construction
permit and provide a plan which includes, among other things, detailed
information regarding the measurements of the proposed project,
thickness of the pavement that shall be used on the proposed
construction, a description of the intended uses of the project,
including the estimated number and type of vehicles using the road,
driveway, or parking lot, and a description of adjoining exterior roads
(e.g., paved, unpaved, public, private). After permit approval,
requirements are specified for the completion of paving and maintenance
of new public roads and parking lots and private (including commercial
and industrial) roads, driveways, and parking lots. A further amendment
incorporates existing city street sweeping ordinances into the air
pollution control program.
4. Chapter IX, Subchapter 14, Rules 1423 and 1424 were amended to
incorporate by reference the federal NSPS and NESHAPs rules as of July
1, 1992. These revisions satisfy the State's one remaining November 30,
1992 commitment included with the original moderate PM10
nonattainment area SIP for Missoula. That commitment was as follows:
``Missoula shall revise the Missoula NSPS and NESHAP regulations to
incorporate all federal requirements promulgated through July 1,
1992.''
5. Chapter IX, Subchapter 14, Rule 1428 was amended to require all
new installations of solid fuel burning devices (either in new
construction or in existing residences) to meet an emission rate of 1.0
gram per hour or less. In addition, uncertified woodstoves must be
replaced or removed upon the sale of a home or other title transfer.
Further, fines have been increased from $20 to $50 for the first
violation, $50 to $200
[[Page 45053]]
for the second violation, and $100 to $500 for third and subsequent
violations.
The revisions outlined above are consistent with Federal
requirements, and therefore, are approvable. The revisions to rules
401, 1401, and 1428 are more stringent than the versions used in the
attainment and maintenance demonstrations for the Missoula moderate
PM10 nonattainment area SIP that EPA approved on January 18, 1994
(59 FR 2537). If the State wishes to receive credit for the PM10
emissions reductions in the Missoula moderate nonattainment area that
are achieved through these more stringent requirements, a revised
attainment and maintenance demonstration for the Missoula PM10 SIP
must be submitted to EPA for consideration. However, the State has
indicated that it does not wish to claim credit for these measures at
this time.
C. Enforceability Issues
All measures and other elements in the SIP must be enforceable by
the State and EPA (see Sections 172(c)(6), 110(a)(2)(A) and 57 FR
13556). The EPA criteria addressing the enforceability of SIPs and SIP
revisions were stated in a September 23, 1987 memorandum (with
attachments) from J. Craig Potter, Assistant Administrator for Air and
Radiation, et al. (see 57 FR 13541). State implementation plan
provisions also must contain a program to provide for enforcement of
control measures and other elements in the SIP [see Section
110(a)(2)(C)].
The Missoula air pollution control regulations, as included in the
SIP, are legally enforceable by the Missoula City-County Health
Department (MCCHD). There are civil penalties, which increase with each
violation, for noncompliance with the solid fuel burning device
regulation. Violation of any other provision, regulation or rule
enforced under the program results in a criminal offense punishable by
a fine.
The Missoula City-County Air Pollution Control Program regulations
are also enforceable by the MDHES, if the MCCHD fails to administer the
program. Since the program has been approved by the MBHES in accordance
with Section 75-2-301 of the Montana Clean Air Act and effectuated by a
MBHES order, and since the MDHES can enforce MBHES orders, the MDHES
has independent enforcement powers. Enforcement provisions are found in
the Clean Air Act of Montana, Sections 75-2-401-429, Montana Code
Annotated.
If a State relies on a local government for the implementation of
any plan provision, then, according to Section 110(a)(2)(E)(iii) of the
Act, the State must provide necessary assurances that the State has
responsibility for ensuring adequate implementation of such plan
provision. A State would have responsibility to ensure adequate
implementation if, for example, the State has the authority and
resources to implement the provision when the local entity has failed
to do so.
The Missoula City-County Air Pollution Control Program was
established in accordance with the requirements of Section 75-2-301 of
the Montana Clean Air Act, as amended (1991). A revised version of the
air pollution control regulations was approved by the Missoula City-
County Air Pollution Control Board on April 24, 1991, and on June 28,
1991 the MBHES issued a board order approving these regulations. A
stipulation between the MDHES and the Missoula City-County Air
Pollution Control Board that delineates responsibilities and
authorities between the MDHES and the local authorities was signed
April 29, 1991. On March 20, 1992, the MBHES issued a board order
approving revisions to the Missoula City-County Air Pollution Control
Program. The April 29, 1991 stipulation, the June 28, 1991 Board order,
and the March 20, 1992 Board order were incorporated into the SIP on
January 18, 1994 (59 FR 2540). A November 19, 1993 MBHES Board order
approving further revisions to the Missoula City-County regulations was
incorporated into the SIP on December 13, 1994 (59 FR 64133).
On September 16, 1994, the MBHES issued a Board order approving
additional revisions to the Missoula City-County regulations. These
regulations and the September 16, 1994 Board order were submitted to
EPA as a modification to the Montana SIP.
The Missoula City-County rules are in effect now. The MCCHD has
adequate personnel and funding to support effective enforcement of the
rules. The State of Montana has a program that will ensure that the
Missoula City-County regulations are adequately enforced. EPA believes
that the State's and Missoula's existing air enforcement program will
be adequate.
III. Final Action
EPA is approving Montana's SIP revisions, submitted by the Governor
with a letter dated March 3, 1995, for the Missoula moderate PM10
nonattainment area. This submittal revised several Missoula City-County
Air Pollution Control Program regulations. Specifically, EPA is
approving the following revised portions of Chapter IX, Regulations,
Standards, & Permits: (1) Subchapter 4, Rule 401 regarding emergency
procedures; (2) Subchapter 14, Rules 1401, regarding the paving of
roads, driveways, and parking lots, and 1428, regarding solid fuel
burning devices.
The March 3, 1995 submittal also satisfied the one remaining
commitment made by the Governor of Montana to EPA in a letter dated
November 30, 1992. Due to the satisfaction of that commitment, EPA can
now approve Rules 1423 (NSPS) and 1424 (NESHAPs) of Subchapter 14,
Chapter IX.
EPA also approves minor revisions to previously approved Chapter
XVI, Amendments and Revisions.
EPA is publishing this action without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. Under the procedures
established in the May 10, 1994 Federal Register (59 FR 24054), this
action will be effective October 30, 1995 unless, by September 29,
1995, adverse or critical comments are received.
If such comments are received, this action will be withdrawn before
the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. EPA will not institute a second comment period on this
action. Any parties interested in commenting on this action should do
so at this time. If no such comments are received, the public is
advised that this action will be effective on October 30, 1995.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to a SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify 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 government entities with jurisdiction over populations
of less than 50,000.
[[Page 45054]]
Approvals of SIP submittals 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 impose any new
requirements, I certify that it does not have a significant impact on
small entities affected. Moreover, due to the nature of the Federal-
state relationship under the Clean Air Act, preparation of a regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of state action. The 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).
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
State, local, or tribal governments in the aggregate.
Through submission of this state implementation plan or plan
revision, the State and any affected local or tribal governments have
elected to adopt the program provided for under Section 110 of the
Clean Air Act. These rules may bind State, local and tribal governments
to perform certain duties. The rules being approved by this action will
impose no new requirements since such sources are already subject to
these regulations under State law. Accordingly, no additional costs to
State, local, or tribal governments, or to the private sector, result
from this action. EPA has also determined that this final action does
not include a mandate that may result in estimated costs of $100
million or more to State, local, or tribal governments in the aggregate
or to the private sector.
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 October 30, 1995. 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 must 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)).
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.
Dated: July 28, 1995.
Kerrigan Clough,
Acting Regional Administrator.
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. 7401-7671q.
Subpart BB--Montana
2. Section 52.1370 is amended by adding paragraph (c)(41) to read
as follows:
Sec. 52.1370 Identification of plan.
* * * * *
(c) * * *
(41) The Governor of Montana submitted revisions to the Missoula
City-County Air Pollution Control Program in a letter dated March 3,
1995. In addition, the March 3, 1995 submittal satisfies the one
remaining commitment made by the State in its original PM10
moderate nonattainment area SIP.
(i) Incorporation by reference.
(A) Board order issued on September 16, 1994 by the Montana Board
of Health and Environmental Sciences approving the amendments to
Missoula City-County Air Pollution Control Program Chapters IX and XVI
regarding, among other things, emergency procedures, paving of private
roads, driveways, and parking lots, National standards of performance
for new stationary sources, National Emission Standards for Hazardous
Air Pollutants, and solid fuel burning devices.
(B) Missoula City-County Rule 401, Missoula County Air Stagnation
Plan, effective September 16, 1994.
(C) Missoula City-County Rule 1401, Prevent Particulate Matter from
Being Airborne, effective September 16, 1994.
(D) Missoula City-County Rule 1423, Standard of Performance for New
Stationary Sources, effective September 16, 1994.
(E) Missoula City-County Rule 1424, Emission Standards for
Hazardous Air Pollutants, effective September 16, 1994.
(F) Missoula City-County Rule 1428, Solid Fuel Burning Devices,
effective September 16, 1994.
(G) Missoula City-County Air Pollution Control Program Chapter XVI,
Amendments and Revisions, effective September 16, 1994.
[FR Doc. 95-21468 Filed 8-29-95; 8:45 am]
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