[Federal Register Volume 61, Number 190 (Monday, September 30, 1996)]
[Rules and Regulations]
[Pages 51014-51018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24532]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MT26-7-6874a; FRL-5609-8]
Clean Air Act Approval and Promulgation of State Implementation
Plan for Montana; Libby Moderate PM10 Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: In this action, EPA approves the State implementation plan
(SIP) revisions submitted by the State of Montana on March 15, 1995 to
satisfy the Federal Clean Air Act requirement to submit contingency
measures for the Libby moderate PM10 (particulate matter with an
aerodynamic diameter less than or equal to a nominal 10 micrometers)
nonattainment area. The March 15, 1995 submittal also recodified the
Lincoln County regulations. In addition, EPA is approving a SIP
revision submitted by the Governor of Montana on May 13,
[[Page 51015]]
1996, which included revisions to the Lincoln County regulations
regarding open burning and other minor administrative amendments. EPA
is approving these SIP revisions because they are consistent with the
applicable requirements of the Clean Air Act, as amended (Act), and EPA
guidance.
DATES: This action is effective on November 29, 1996 unless notice is
received by October 30, 1996 that someone wishes to submit adverse or
critical comments. 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 Program, Environmental Protection Agency, Region VIII,
999 18th Street, Suite 500, Denver, Colorado 80202-2466; Montana
Department of Environmental Quality, Air Quality Division, 836 Front
Street, Helena, Montana 59620-5520; and The Air and Radiation Docket
and Information Center, 401 M Street, SW, Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Vicki Stamper, 8P2-A, U.S.
Environmental Protection Agency, Region VIII, 999 18th Street, Suite
500, Denver, Colorado 80202-2466, (303) 312-6445.
SUPPLEMENTARY INFORMATION:
I. Background
The Libby, Montana area was designated nonattainment for PM10
and classified as moderate under sections 107(d)(4)(B) and 188(a) of
the Act, upon enactment of the Clean Air Act Amendments of 1990. See 56
FR 56694 (Nov. 6, 1991); 40 CFR 81.327 (specifying designations for
Montana). Those States containing initial moderate PM10
nonattainment areas were required to submit several provisions by
November 15, 1991. These provisions, including an attainment
demonstration (or demonstration that timely attainment is
impracticable), are described in EPA's final rulemaking for the Libby
moderate PM10 nonattainment area SIP (59 FR 44627, August 30,
1994). The Libby PM10 control measures targeted re-entrained road
dust, residential wood burning, prescribed burning, and industrial
sources for reductions in PM10 emissions to demonstrate attainment
of the PM10 national ambient air quality standards (NAAQS). See
the August 30, 1994 notice of final rulemaking and associated Technical
Support Document (TSD) for further details.
Such States were also required to submit contingency measures by
November 15, 1993 (see 57 FR 13543). The Governor of Montana submitted
revisions to the SIP for Libby on March 15, 1995, to address this
requirement.
In addition, on May 13, 1996, the Governor of Montana submitted
revisions to the Lincoln County open burning rules and other minor
revisions for approval into the SIP.
II. This Action
Section 110(k) of the Act sets out provisions governing EPA's
review of SIP submittals (see 57 FR 13565-13566).
A. Analysis Requirements for State Submissions
1. Procedural Background
The Act requires States to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
EPA. [See sections 110(a)(2) and 110(l) of the Act.] EPA also must
determine whether a submittal is complete and therefore warrants
further EPA review and action [see section 110(k)(1) of the Act and 57
FR 13565]. The EPA's completeness criteria for SIP submittals are set
out at 40 CFR part 51, appendix V.
To entertain public comment, the State of Montana, after providing
adequate notice, held public hearings on December 16, 1994 to consider
the Libby PM10 contingency measures and on February 1, 1996 to
consider the revisions to the Lincoln County open burning rules and
other minor revisions. Following the hearings, the Montana Board of
Health and Environmental Sciences adopted the Libby PM10
contingency measures and the revisions to the Lincoln County open
burning rules. The SIP revisions were formally submitted to EPA for
approval on March 15, 1995 and on May 13, 1996, respectively.
The SIP revisions were reviewed by EPA to determine completeness
shortly after their submittal, in accordance with the completeness
criteria referenced above. The submittals were found to be complete,
and letters dated April 21, 1995 and July 3, 1996 were forwarded to the
Governor indicating the completeness of the submittals and the next
steps to be taken.
2. PM10 Contingency Measures
The Clean Air Act requires States containing PM10
nonattainment areas to adopt contingency measures that will take effect
without further action by the State or EPA upon a determination by EPA
that an area failed to make reasonable further progress (RFP) or to
timely attain the applicable NAAQS, as described in section 172(c)(9).
See generally 57 FR 13510-13512 and 13543-13544. Pursuant to section
172(b), the Administrator has established a schedule providing that
States containing initial moderate PM10 nonattainment areas shall
submit SIP revisions containing contingency measures no later than
November 15, 1993. (See 57 FR 13543, n. 3.)
The General Preamble further explains that contingency measures for
PM10 should consist of other available control measures, beyond
those necessary to meet the core moderate area control requirement to
implement reasonably available control measures (see sections 172(c)(1)
and 189(a)(1)(C) of the Act). Based on the statutory structure, EPA
believes that contingency measures must, at a minimum, provide for
continued progress toward the attainment goal during the interim period
between the determination that the SIP has failed to achieve RFP or
provide for timely attainment of the NAAQS and additional formal air
quality planning following the determination (57 FR 13511).
Section 172(c)(9) of the Act specifies that contingency measures
shall ``take effect * * * without further action by the State or the
[EPA] Administrator.'' EPA has interpreted this requirement (in the
General Preamble at 57 FR 13512) to mean that no further rulemaking
activities by the State or EPA would be needed to implement the
contingency measures. In general, EPA expects all actions needed to
effect full implementation of the measures to occur within 60 days
after EPA notifies the State of its failure to attain the standard or
make RFP. EPA recognizes that certain actions, such as notification of
sources, modification of permits, etc., may be needed before some
measures could be implemented. However, States must show that their
contingency measures can be implemented with minimal further
administrative action on their part and with no additional rulemaking
action such as public hearing or legislative review.
The provisions for selection and implementation of contingency
measures for the Libby moderate PM10 nonattainment are in Section
75.1.103 of the Lincoln County Air Pollution Control Program. The
County and State have targeted three sources of emissions for potential
implementation of contingency measures: residential wood combustion,
re-entrained road dust, and industry emissions. The County rule
provides that, within 60 days of notification by the State or EPA that
the Libby moderate PM10 nonattainment
[[Page 51016]]
area has failed to attain the PM10 NAAQS or to make RFP, one or
more of three measures will be implemented depending on which source(s)
of emissions is determined to be the significant contributor(s) to the
problem. The County rule further provides that, if initially no source
is determined to be the significant contributor, a comprehensive
review, including chemical and microscopic analysis of exposed
PM10 filters, will be conducted by the County and the State to
determine the significant contributor. In the meantime, the County rule
requires that at least one of the three available contingency measures
be implemented on an interim basis. This interim contingency measure
will remain in effect until the significant source is identified and a
permanent contingency measure has been implemented.
The specific contingency measures adopted for the Libby moderate
PM10 nonattainment area and their projected effectiveness are as
follows:
a. Residential Wood Burning Contingency Measure
Section 75.1.206(3) of the local regulations contains the
residential wood burning contingency measure. The County rule provides
for early implementation of this contingency measure if needed, which
is acceptable. If this measure is implemented, the County regulation
provides that:
No solid fuel burning device shall be operated within the Libby Air
Pollution Control District between October 1 and March 31 unless it has
been permitted by the [Lincoln County Health] Department as a Class I,
Class II, Low Income Exemption or Sole Source device or is operating on
a validated Temporary Emergency Heating Authorization Permit.
This contingency measure goes beyond the existing control measure,
which limits the use of these types of solid fuel burning devices only
when an alert is called by the County (i.e., when PM10 levels
exceed 100 g/m\3\ and conditions indicate that PM10
levels will remain above 100 g/m\3\).
If the residential wood burning contingency measure is implemented
in the Libby nonattainment area, the State estimates that the control
efficiency of the wood burning measures will be 57% in the 24-hour
attainment demonstration (an increase of 5% over the control efficiency
of the residential wood burning measures in the original SIP attainment
demonstration). The State also estimates that the annual control
efficiency of the wood burning measures would be 54% (an increase of
20% over the annual control efficiency in the original SIP). Total
reduction from the contingency measure is calculated to be 256 pounds
of PM10 reduced per day more than without the contingency measure,
and 19.4 tons more per year.
b. Re-entrained Road Dust Contingency Measure
Section 75.1.303(3) of the County regulations contains the re-
entrained road dust contingency measure. The County rule provides for
early implementation of this contingency measure if needed, which is
acceptable. If this measure is implemented, the following changes to
the existing road dust control plan (which has been approved as part of
the Libby PM10 SIP) become effective:
(1) The Area of Road Sanding and Sweeping will be extended to the
boundaries of the Air Pollution Control District. Thus, the prioritized
street sweeping and flushing schedule will be expanded to apply to all
public roadways within the Road Sanding and Sweeping District;
(2) The use of liquid de-icing agents (which was not previously
required) will be mandatory on all roads and parking lots within the
expanded Road Sanding and Sweeping District. Use of sanding materials
will be prohibited except in emergency situations; and
(3) Any sanding materials used in an emergency situation must meet
the specifications identified in Section 75.1.303(1) of the County
regulation.
The City of Libby and the Department of Transportation have installed
tanks and converted equipment for the use of a liquid de-icer instead
of sanding material.
If the re-entrained road dust contingency measure is implemented,
the State estimates that the control efficiency of the re-entrained
road dust measures will be 90% in the 24-hour attainment demonstration
(an increase of 42% over the control efficiency of the re-entrained
road dust measures in the original SIP attainment demonstration). The
State also estimates that the annual control efficiency of the re-
entrained road dust contingency measure will be 71% (an increase of 33%
over the original SIP attainment demonstration). Total reduction from
the contingency measure is calculated to be 7421 pounds of PM10
per day and 403 tons of PM10 per year than without the contingency
measure.
c. Stimson Lumber Company Contingency Measure
Section 75.1.103(2)(c) of the County regulation states that, if
industrial facility emissions are determined to be one of the
significant contributors to PM10 exceedances in the Libby
PM10 nonattainment area, contingency measures reducing the
industrial facility's emissions shall be initiated by the State.
Implementation of this contingency measure was retained by the State
because the authority to regulate sources governed by the Montana Clean
Air Act (MCA), Title 75, Chapter 2, is not delegable to the local
level. The requirements of this contingency measure are contained in
the December 16, 1994 Board Order and Stipulation between Stimson
Lumber Company and the State. The contingency measure consists of
additional controls on fugitive dust sources.
The existing fugitive dust requirements in the permit include:
chemical dust suppressant on the major haul routes to maintain
compliance with the 20% opacity limitation (at least annually), and
water sprays used as necessary to control dust emissions on active
areas of the log yard. The contingency measures in the stipulation add
the following requirements:
(1) The facility entrance and Plywood Plant access road shall be
surfaced with either asphalt, concrete, or chip seal from Highway 2 to
the Plywood Plant. Sweeping and flushing shall be conducted, as
necessary, to maintain compliance with a 5% opacity limitation but not
less than twice annually, with one application during the months of
April-June and one application during the months of September-November.
(2) The chip sealed portions of the Plywood Plant access road shall
consist of a double layer of oil base and chips which shall be watered,
as necessary, to maintain compliance with a 5% opacity limitation.
These portions shall also be maintained to avoid deterioration by
evaluating the chip seal for cracking at a minimum of every 2 years,
and by applying a crack sealer (e.g., rubberized asphalt) as needed. A
thorough evaluation and assessment of the need to reseal the roadway
shall be conducted no less than every 5 years.
(3) Chemical dust suppressant shall be applied to all remaining
active unpaved areas within the facility as necessary to maintain
compliance with the 5% opacity limitation, but not less than twice
annually with one application during the months of April-June and one
application during the months of September-November.
(4) The facility shall maintain a written record of all implemented
contingency measures, which shall be made available to the Montana
[[Page 51017]]
Department of Environmental Quality upon request.
The stipulation provides that this contingency plan will become
effective within 60 days after notification to the company and without
further negotiation.
The State's March 15, 1995 SIP submittal did not contain an
analysis of the effectiveness of the Stimson Lumber Company contingency
measures. While this contingency measure specifically controls fugitive
dust emissions in the log yard area and associated roads of Stimson
Lumber Company, the main problem the State intended to address with
these measures was the amount of mud and dirt carried out onto the
public roads around the Plywood Plant by vehicles leaving the facility.
However, the amount of PM10 reductions due to a reduction in mud
and dirt carryout from Stimson Lumber Company are not readily
quantifiable. The State did not calculate the emissions reductions due
to these fugitive dust contingency measures expected on the Stimson
Lumber Company property itself because they believed the calculations
would not accurately reflect the overall effectiveness of this
contingency measure. EPA agrees with the State that the Stimson Lumber
Company contingency measures will help to reduce mud and dirt carryout
onto the public roads and, consequently, will reduce re-entrained road
dust emissions, as well as reducing fugitive dust emissions emitted
from the Stimson Lumber Company property. Thus, this contingency
measure, if implemented, will provide for additional emissions
reductions in the Libby PM10 nonattainment area.
EPA believes the Libby contingency measures are approvable. The
control measures implemented in the PM10 SIP are projected to
achieve more emissions reductions than needed to demonstrate attainment
of the PM10 NAAQS, as indicated by the State's predicted 24-hour
attainment concentration of 135.9 g/m\3\. Since the 24-hour
PM10 NAAQS is 150 g/m\3\, this established safety margin
further supports the reasonableness of these contingency measures.
3. Revisions to Lincoln County's Open Burning Regulations
The City of Libby and Lincoln County revised the open burning rules
to address newly adopted provisions to the State's open burning rules.
Specifically, the Lincoln County open burning rules were revised to add
new provisions addressing open burning of Christmas tree waste, for
commercial film or video productions, and for firefighter training. In
addition, the County rules were revised to add additional requirements
for the issuance of conditional open burning permits, such as providing
public notice and opportunity for public hearing. The County also added
a provision stating that it could only issue a conditional open burning
permit if emissions from the burn would not endanger public health or
cause or contribute to a violation of the NAAQS.
The County rules were also revised to make other minor
administrative changes to reflect the reorganization of the Montana
Department of Environmental Quality (formerly Montana Department of
Health and Environmental Sciences).
EPA believes the revisions to the County's rules submitted May 13,
1996 are consistent with the Act and will help to protect the PM10
NAAQS in the Libby area. Therefore, EPA finds the revisions to be
approvable.
4. 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). SIP 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)]. EPA believes the Libby
PM10 contingency measures and the local regulations meet the SIP
enforceability requirements. For further details, see the TSD
accompanying this action.
III. Final Action
EPA is approving the PM10 contingency measures and the
recodification of the local regulations submitted for the Libby
moderate PM10 nonattainment area by the Governor of Montana on
March 15, 1995. This submittal adequately addressed the PM10
contingency measure requirements for Libby. In addition, EPA is
approving the revisions to the Lincoln County regulations submitted by
the Governor of Montana on May 13, 1996 regarding open burning and
other minor administrative amendments.
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 revisions
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 November 29, 1996 unless, by October 30, 1996,
adverse or critical comments are received.
If EPA receives such comments, this action will be withdrawn before
the effective date by publishing a subsequent notice 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 November 29, 1996.
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.
IV. Administrative Requirements
A. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
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.
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 impose any new requirements, the
[[Page 51018]]
Administrator certifies that it does not have a significant impact on
any small entities affected. Moreover, due to the nature of the
Federal-state relationship under the Act, preparation of a flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of state action. The Act forbids EPA to base its actions
concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427
U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
C. 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 no new
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
E. 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 November 29, 1996. 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)).
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: August 29, 1996.
Patricia D. Hull,
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)(44) to read
as follows:
Sec. 52.1370 Identification of plan.
* * * * *
(c) * * *
(44) The Governor of Montana submitted PM10 contingency
measures and a recodification of the local regulations for Libby,
Montana in a letter dated March 15, 1995. In addition, the Governor of
Montana submitted revisions to the local open burning regulations and
other minor administrative amendments on May 13, 1996.
(i) Incorporation by reference.
(A) Board order issued on December 16, 1994 by the Montana Board of
Health and Environmental Sciences adopting stipulation of the Montana
Department of Health and Environmental Sciences and Stimson Lumber
Company.
(B) Board order issued December 16, 1994 by the Montana Board of
Health and Environmental Sciences adopting the PM10 contingency
measures as part of the Libby air pollution control program.
(C) Board order issued on February 1, 1996 by the Montana Board of
Environmental Review approving amendments to the Libby Air Pollution
Control Program.
(D) Lincoln Board of Commissioners Resolution No. 377, signed
September 27, 1995, and Libby City Council Ordinance No. 1507, signed
November 20, 1995, adopting revisions to the Lincoln County Air
Pollution Control Program, Sections 75.1.103 through 75.1.719.
(E) Lincoln County Air Pollution Control Program, Sections 75.1.101
through 75.1.719, effective December 21, 1995.
[FR Doc. 96-24532 Filed 9-27-96; 8:45 am]
BILLING CODE 6560-50-P
