2011-12357. Approval and Disapproval and Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient Air Quality Standards; Montana

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed Rule.

SUMMARY:

EPA is proposing to partially approve and partially disapprove the State Implementation Plan (SIP) submission from the State of Montana to demonstrate that the SIP meets the requirements of sections 110(a)(1) and (2) of the Clean Air Act (CAA) for the National Ambient Air Quality Standards (NAAQS) promulgated for ozone on July 18, 1997. Section 110(a)(1) of the CAA requires that each state, after a new or revised NAAQS is promulgated, review their SIPs to ensure that they meet the requirements of the “infrastructure elements” of section 110(a)(2). The State of Montana submitted two certifications of their infrastructure SIP for the 1997 ozone NAAQS, dated November 28, 2007, which was determined to be complete on March 27, 2008 (73 FR 16205), and December 22, 2009.

EPA does not propose to act on the State's November 28, 2007 and December 22, 2009, submissions to meet the requirements of section 110(a)(2)(D)(i) of the CAA, relating to interstate transport of air pollution, for the 1997 ozone NAAQS. EPA approved the State's interstate transport SIP submission on February 26, 2008 (73 FR 10150).

DATES:

Written comments must be received on or before June 20, 2011.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R08-OAR-2010-0298, by one of the following methods:

• http://www.regulations.gov. Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Fax: [phone] (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
• Mail: Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129.
• Hand Delivery: Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only accepted Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal holidays. Special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-2010-0298. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA, without going through http://www.regulations.gov your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm. For additional instructions on submitting comments, go to section I, General Information, of the SUPPLEMENTARY INFORMATION section of this document.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Kathy Dolan, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. 303-312-6142, [e-mail].

SUPPLEMENTARY INFORMATION:

Definitions

For the purpose of this document, we are giving meaning to certain words or initials as follows:

(i) The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

(iii) The initials SIP mean or refer to State Implementation Plan.

Table of Contents

I. General Information

II. Background

III. What infrastructure elements are required under sections 110(a)(1) and (2)?

IV. How did the State of Montana address the infrastructure elements of sections 110(a)(1) and (2)?

V. What action is EPA taking?

VI. Statutory and Executive Order Reviews

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 e-mail. 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, 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 July 18, 1997, EPA promulgated new NAAQS for ozone based on 8-hour average concentrations. The 8-hour averaging period replaced the previous 1-hour averaging period, and the level of the NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). By statute, SIPs meeting the requirements of sections 110(a)(1) and (2) are to be submitted by states within three years after promulgation of a new or revised standard. Section 110(a)(2) provides basic requirements for SIPs, including emissions inventories, monitoring, and modeling, to assure attainment and maintenance of the standards. These requirements are set out in several “infrastructure elements,” listed in section 110(a)(2).

Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, and the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 1997 ozone NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous NAAQS. In a guidance issued on October 2, 2007, EPA noted that, to the extent an existing SIP already meets the section 110(a)(2) requirements, states need only to certify that fact via a letter to EPA.^[1]

On March 27, 2008, EPA published a final rule entitled, “Completeness Findings for Section 110(a) State Implementation Plans for the 8-hour Ozone NAAQS” (73 FR 16205). In the rule, EPA made a finding for each state that it had submitted or had failed to submit a complete SIP that provided the basic program elements of section 110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. In particular, EPA found that the State of Montana had submitted a complete SIP to meet these requirements.

III. What infrastructure elements are required under sections 110(a)(1) and (2)?

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)(ii): Interstate and international pollution.
• 110(a)(2)(E): Adequate resources and authority.
• 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 prevention of significant deterioration (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: (i) section 110(a)(2)(C) to the extent it refers to permit programs (known as “nonattainment new source review (NSR)”) required under part D, and (ii) 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).

This action also does not address the “interstate transport” requirements of element 110(a)(2)(D)(i). In a separate action, EPA approved the State's submission to meet the requirements of 110(a)(2)(D)(i) for the 1997 ozone NAAQS (73 FR 10150).

IV. How did the State of Montana address the infrastructure elements of sections 110(a)(1) and (2)?

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.

a. Montana's response to this requirement: Enforceable control measures exist to protect the ozone NAAQS throughout the State. Montana implements a stationary source permit program which requires subject sources to demonstrate emissions will not cause or contribute to a violation of any NAAQS (Administrative Rules of Montana (ARM) 17.8.749). Subject sources are further required to utilize best available control technology (BACT) when installing emission controls (ARM 17.8.752). Montana also regulates open burning and subjects those conducting open burning to BACT requirements as well (Title 17, Chapter 8, Subchapter 6).

Except for specific control measures adopted in Montana Board of Environmental Review (BER) orders, the emission limits and other air pollution control regulations are contained in the following subchapters of Title 17, Chapter 8, ARM: Subchapter 1—General Provisions; Subchapter 2—Emission Standards; Subchapter 4—Stack Heights and Dispersion Techniques; Subchapter 6—Open Burning; Subchapter 7—Permit, Construction and Operation of Air Contaminant Sources; Subchapter 8—Prevention of Significant Deterioration of Air Quality; Subchapter 9—Permit Requirements for Major Stationary Sources or Major Modifications Locating within Nonattainment Areas; Subchapter 10—Preconstruction Permit Requirements for Major Stationary Sources or Major Modifications Locating within Attainment or Unclassified Areas; Subchapter 16—Emission Control Requirements for Oil and Gas Well Facilities Operating Prior to Issuance of a Montana Air Quality Permit.

State rule(s)	Federal action 2	Action reference
ARM 17.8.101 et seq	approved	60 FR 3615.
ARM 17.8.301 et seq	approved	44 FR 14036.
ARM 17.8.401 et seq	approved	60 FR 36715.
ARM 17.8.601 et seq	approved	61 FR 54947.
ARM 17.8.701 et seq	approved	60 FR 36715.
ARM 17.8.801 et seq	approved	60 FR 36715.
ARM 17.8.901 et seq	approved	60 FR 36715.
ARM 17.8.1001 et seq	approved	60 FR 36715.
ARM 17.8.1601 et seq	approved	60 FR 36715.

 

b. EPA analysis: Montana's SIP meets the requirements of CAA section 110(a)(2)(A) for the 1997 ozone 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 1997 ozone NAAQS. Furthermore, Montana has no areas designated as nonattainment for the 1997 ozone NAAQS. Montana primarily regulates emissions of ozone and ozone precursors through its SIP-approved major and minor source permitting programs. The SIP also contains limitations for emissions of hydrocarbons from storage and processing of petroleum products. See ARM 17.8.324. This suffices, in the case of Montana, to meet the requirements of 110(a)(2)(A) for the 1997 ozone NAAQS.

Second, in this action, 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 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 SIP provisions with regard to excess emissions during startup, shutdown, or malfunction (SSM) of operations at a facility. A number of states have SSM provisions which are contrary to the CAA and existing EPA guidance ^[3] and the Agency plans to address such state regulations in the future. In the meantime, EPA encourages any state having a deficient SSM provision to take steps to correct it as soon as possible.

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 ambient air quality, and (ii) upon request, make such data available to the Administrator.

a. Montana's response to this requirement: On an annual basis, the Department of Environmental Quality (“Department” or “DEQ”) evaluates trends in industrial and economic development, meteorology, and population growth and makes other scientific, social, and geographic observations regarding areas of the State which may be adversely affected by the impact of criteria pollutants. Based on this information, the Department identifies potential air pollution “hotspots.” The Department, with participation and input from local control program staff and other interested persons, makes decisions regarding monitor type, location, and schedules for monitoring air quality in these hotspots. The Department makes the product of this decision making process, the annual monitoring network plan, available for public inspection 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. Ambient air monitoring data is subject to strict quality assurance/quality control processes. Air monitoring data is included in the AIRS database.

Montana has monitored the Billings area for ambient ozone levels since June 2005. No exeedences have been recorded.

The provisions in state law for the collection and analysis of ambient air quality data are contained in the CAA of Montana (MT CAA), 75-2-101 et seq., MCA, and, specifically, 75-2-112, MCA, Powers and Responsibilities of Department.

b. EPA analysis: Montana's air monitoring programs and data systems meet the requirements of CAA section 110(a)(2)(B) for the 1997 ozone NAAQS. The 2009-2010 Montana Annual Monitoring Network Plan (AMNP), dated June 2009, was approved by EPA Region 8 on August 24, 2010.

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 that NAAQS are achieved, including a permit program as required in parts C and D.

a. Montana's response to this requirement: Congress directed states to develop and implement measures to prevent significant deterioration (PSD) of air quality pursuant to 42 U.S.C. 7470, et seq. and 7501, et seq. Pursuant to ARM 17.8.130, sources subject to the provisions of Title 17, Chapter 8, subchapters 8, 9, and 10, ARM, regulating construction of new or modified stationary sources consistent with PSD and NSR requirements, shall be subject to enforcement. The Department has the authority to issue a notice of violation, complaint regarding the source violation, and an order to take corrective action.

State rule(s)	Federal action	Action reference
ARM 17.8.130	Approved	71 FR 3770.
ARM 17.8.801 et seq	Approved	60 FR 36715.
ARM 17.8.901 et seq	Approved	60 FR 36715.
ARM 17.8.1001 et seq	Approved	60 FR 36715.

The provisions in state law for the enforcement of emission limitations and other control measures, means or techniques is contained in the MT CAA, 75-2-101 et seq., MCA, and specifically, 75-2-111, MCA, Powers of the Board and 75-2-112, MCA, Powers and Responsibilities of Department.

b. EPA analysis: 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 1997 8-hour ozone NAAQS. As explained above, in this action EPA is not evaluating nonattainment related provisions, such as the nonattainment NSR program required by part D of the Act. In addition, Montana has no nonattainment areas for the 1997 ozone NAAQS and is therefore not required at this point to have a corresponding nonattainment NSR program. In this action, 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).

Montana has a SIP-approved PSD program that generally meets the requirements of part C of the Act. However, in order for the State's SIP-approved PSD program to satisfy the requirements of section 110(a)(2)(C) for the 1997 ozone NAAQS, the program must properly regulate ozone precursors. On November 29, 2005, EPA promulgated the phase 2 implementation rule for the 1997 ozone NAAQS, which includes requirements for PSD programs to treat nitrogen oxides as a precursor for ozone (72 FR 71612). The State's approved PSD program does not satisfy the requirements of the phase 2 implementation rule.^[4] Furthermore, the State has not submitted a revision to the program to address this deficiency. As a result, the SIP does not satisfy, for the 1997 ozone NAAQS, the requirement of element 110(a)(2)(C) for the SIP to include a permit program as required in part C of Title I of the Act. EPA therefore proposes to disapprove the Montana infrastructure SIP for the 1997 ozone NAAQS for this requirement.

Turning to minor NSR, EPA is proposing to approve Montana's infrastructure SIP for the 1997 ozone NAAQS with respect to the general requirement in section 110(a)(2)(C) to include a program in the SIP that regulates the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved. (See ARM Chapter 17.8, Subchapter 7.) EPA is not proposing to approve or disapprove the State's existing minor NSR program itself to the extent that it is inconsistent with EPA's regulations governing this program. A number of states may have minor NSR provisions that are contrary to the existing EPA regulations for this program. EPA intends to work with states to reconcile state minor NSR programs with EPA's regulatory provisions for the program. The statutory requirements of section 110(a)(2)(C) provide for considerable flexibility in designing minor NSR programs, and it may be time to revisit the regulatory requirements for this program to give the states an appropriate level of flexibility to design a program that meets their particular air quality concerns, while assuring reasonable consistency across the country in protecting the NAAQS with respect to new and modified minor sources.

4. Interstate transport: Section 110(a)(2)(D)(i) requires SIPs to contain adequate provisions prohibiting, consistent with the provisions of this title, any source or other type of emissions activity within the state from emitting any air pollutant in amounts which will (I) contribute significantly to nonattainment in, or interfere with maintenance by, any other state, with respect to any such national primary or secondary ambient air quality standard, or (II) interfere with measures required to be included in the applicable implementation plan for any other state under part C to prevent significant deterioration of air quality or to protect visibility.

a. EPA Analysis: EPA approved the State's Interstate Transport provisions for the 1997 ozone and PM_2.5 NAAQS on February 26, 2008 (73 FR 10150). EPA is taking no action relevant to section 110(a)(2)(D)(i) in this proposal.

5. Interstate and International transport provisions: Section 110(a)(2)(D)(ii) requires that each SIP shall contain adequate provisions insuring compliance with applicable requirements of sections 126 and 115 (relating to interstate and international pollution abatement).

a. Montana's response to this requirement: Although Montana certified that its SIP met the requirements of sections 110(a)(1) and (2) generally and 110(a)(2)(D) specifically, Montana did not identify particular provisions to meet this requirement.

b. EPA Analysis: Section 126(a) 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 regarding sources violating the “interstate transport” provisions of section 110(a)(2)(D)(i). Section 115 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. See ARM 17.8.826(2)(d). This suffices to meet the notice requirement of section 126(a).

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 110(a)(2)(D)(ii) for the 1997 ozone NAAQS.

6. Adequate resources and authority: Section 110(a)(2)(E) requires states to provide (i) 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), (ii) requires that the state comply with the requirements respecting state boards under section 128, and (iii) 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. Montana's response to this requirement: No state or Federal provisions prohibit the implementation of any provision of the Montana SIP. Montana devotes adequate resources to SIP development and maintenance sufficient to ensure attainment and maintenance of the NAAQS for ozone.

Montana receives from EPA grant monies intended to fund programs to protect NAAQS. Montana allocates a portion of the EPA grant money to fund SIP activities for attainment and maintenance of the NAAQS. Montana imposes and collects fees from permit applicants. Montana allocates all of the permit fee revenue to activities associated with permitting and compliance of regulated sources of air pollutants, including criteria pollutant emissions. Montana also receives state general funds to conduct state air quality program activities. Montana allocates all state general funding to non-permit air program activities including SIP programs for attainment and maintenance of the NAAQS.

The Air Resources Management Bureau has 50 fulltime equivalent positions with an annual budget of $6.3 million for fiscal year 2010. The program funding is broken down as follows: $163,536 from state general funds, $1,643,940 from Federal grants, and $4,546,047 from stationary source fees.

The provisions in State law providing for adequate resources are contained in the MT CAA, 75-2-101 et seq., MCA. More specifically, those provisions are contained in 75-2-102, MCA, Intent—Policy and Purpose; 75-2-111, MCA, Powers of the Board and 75-2-112, MCA, Powers and Responsibilities of Department.

The Montana Board of Environmental Review (BER) oversees the Montana DEQ, including actions taken by the State air program. The composition and requirements of the BER are detailed in 2-15-3502, MCA, 2-15-121, MCA, and 2-15-124, MCA. Laws related to conflict of interest in Montana state government are found in 2-2-201, MCA, and 2-2-202, MCA.

b. EPA Analysis: 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 1997 ozone 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. EPA therefore proposes to approve the Montana infrastructure SIP with regards to the requirements of section 110(a)(2)(E) for the 1997 ozone 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.

a. Montana's response to this requirement: Montana requires stationary sources subject to State regulation to annually submit all information necessary to complete a source emissions inventory. Affected permits require emissions monitoring from stationary sources of air pollution. Further, on an annual basis the Department compiles a State emissions inventory of all regulated sources for the evaluation of compliance with applicable standards and inclusion in EPA databases.

State rule(s)	Federal action	Action reference
ARM 17.8.105	Approved	66 FR 42427.
ARM 17.8.106	Approved	66 FR 42427.
ARM 17.8.505	Not submitted	State only rule.

b. EPA Analysis: 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. EPA therefore proposes to approve Montana's infrastructure SIP with regards to the requirements of section 110(a)(2)(F) for the 1997 ozone NAAQS.

8. Emergency powers: Section 110(a)(2)(G) requires states to provide for authority to address activities causing imminent and substantial endangerment to public health, including contingency plans to implement the emergency episode provisions in their SIPs.

a. Montana's response to this requirement: On January 3, 2006, EPA approved Montana's Emergency Episode Avoidance Plan (EEAP) in 71 FR 19. Montana's EEAP made provision for emergency control of all criteria pollutants. Under authority granted by section 75-2-402, MCA, Emergency Procedures, and the Montana's EEAP, the Department may order sources of pollution to limit or cease emissions. The Montana CAA is not subject to approval by EPA.

b. EPA analysis: Section 75-2-402 of the MCA provides DEQ with general emergency authority comparable to that in section 303 of the Act. EPA last approved revisions to the EEAP on January 3, 2006 (71 FR 19). The EEAP meets the requirements of 40 CFR part 51, Subpart H. The SIP therefore meets the requirements of 110(a)(2)(G) for the 1997 ozone 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 110(a)(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.

a. Montana's response to this requirement: The Montana CAA invests in the BER the authority to adopt, amend, and repeal rules for administering implementing, and enforcing rules promulgated to regulate emissions of air pollutants, including rules necessary to establish measures to attain and maintain the NAAQS. The Governor submits, for inclusion into the SIP, rules determined to be necessary to attain and maintain the NAAQS.

The provisions in state law providing for adoption of rules and regulations are contained in the Montana CAA, 75-2-101 et seq., MCA. More specifically, those provisions are contained in 75-2-102, MCA, Intent—Policy and Purpose; 75-2-111, MCA, Powers of the Board, and 75-2-112, MCA, Powers and Responsibilities of Department.

b. EPA analysis: 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).

10. Nonattainment Area Plan or Plan Revision under Part D: Section 110(a)(2)(I) requires that a SIP or SIP revision for an area designated as a nonattainment area must meet the applicable requirements of part D of title I of the Act (relating to nonattainment areas).

a. Montana's response to this requirement: All control plans for non-attainment areas in Montana are prepared in accordance with the applicable requirements of 42 U.S.C. 7501-7505. There are no ozone nonattainment areas in Montana.

b. EPA analysis for Section 110(a)(2)(I): As noted above, the specific nonattainment area plan requirements of section 110(a)(2)(I) are subject to the timing requirement of section 172, not the timing requirement of section 110(a)(1). This element is therefore not applicable to this action. EPA will take action on part D attainment plans through a separate process.

11. 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 title I of the Act (relating to PSD of air quality and visibility protection).

a. Montana's response to this requirement: Montana satisfies EPA's requirements for intergovernmental relations, see 59 FR 2988. Montana has not changed or revoked consultation processes since that time. Montana holds public meetings and hearings on all SIP revisions in accordance with 40 CFR part 51, Appendix V and Montana's open meeting laws. See 3-2-203, MCA.^[5]

On January 3, 2006, EPA approved Montana's EEAP in 71 FR 19. Montana's EEAP provides for all criteria pollutants, including ozone. The EEAP contains provisions for disseminating information regarding an exeedence of the NAAQS to appropriate news media, health officials, law enforcement, and others. The Department notice includes recommendations for actions citizens may take to reduce the impact of their activities and reduce their exposure. Montana also complies with 40 CFR 51.930 during exceptional events.

Congress directed states to develop and implement measures to prevent significant deterioration of air quality pursuant to 42 U.S.C. 7471. Montana adopted permitting requirements for major sources proposing to modify or construct; PSD rules in subchapter 8 and nonattainment New Source Review rules in subchapter 10 of Title 17, Chapter 8, ARM. Montana continues to implement and enforce these rules. Montana consults with Federal Land Managers as needed and/or required.

State rule(s)	Federal action	Action reference
ARM 17.8.801 et seq.	Approved	60 FR 36715.
ARM 17.8.1001 et seq.	Approved	60 FR 36715.

b. EPA Analysis: 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. Furthermore, Montana's EEAP, approved into the SIP, meets the 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 IV.3 above. As discussed there, EPA proposes to disapprove 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 basis that Montana's SIP-approved PSD program does not properly regulate nitrogen oxides as an ozone precursor. For the same reason, EPA proposes to disapprove Montana's infrastructure SIP with regards 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 that 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 is no new visibility obligation “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective.

In conclusion, the Montana SIP meets the requirements of section 110(a)(2)(J) for the 1997 ozone NAAQS with regards to sections 121 and 127 of the Act, and does not meet the requirements of section 110(a)(2)(J) for the 1997 ozone NAAQS with regards to meeting the applicable requirements of part C relating to PSD.

12. Air quality and modeling/data: Section 110(a)(2)(K) requires that 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.

a. Montana's response to this requirement: Montana requires an applicant proposing to construct or modify a source of criteria pollutants to demonstrate the facility can be expected to operate in compliance with applicable law and that it will not cause or contribute to a violation of any NAAQS. Sources subject to the provisions of Title 17, Chapter 8, Subchapters 7, 8, 9, and 10, ARM (regulating construction of new or modified major stationary sources consistent with PSD and New Source Review (NSR) requirements) shall demonstrate the facility can be expected to operate in compliance with applicable law and that it will not cause or contribute to a violation of any NAAQS.

State rule(s)	Federal action	Action reference
ARM 17.8.701 et seq.	Approved	60 FR 36715.
ARM 17.8.801 et seq.	Approved	60 FR 36715.
ARM 17.8.901 et seq.	Approved	60 FR 36715.
ARM 17.8.1001 et seq.	Approved	60 FR 36715.

Absent any privacy restrictions regarding the release of proprietary business information, all preconstruction data and analysis regarding the results of source predictive modeling for purposes of NAAQS compliance is public information available for anyone, including EPA, to review upon request.

b. EPA Analysis: Montana's SIP meets the requirements of CAA section 110(a)(2)(K) for the 1997 ozone NAAQS. In particular, Montana's PSD program (see ARM 17.8.821(1)) requires estimates of ambient air concentrations to be based on the applicable air quality models, data bases, and other requirements specified in Appendix W of 40 CFR part 51, pertaining to the Guidelines on Air Quality Models. As a result, the SIP provides for such air quality modeling as the Administrator has prescribed.

13. Permitting fees: Section 110(a)(2)(L) requires SIPs to require 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.

a. Montana's response to this requirement: Montana has an approved Title V permitting program. Montana requires an applicant proposing to construct or modify an air pollution source to pay an application fee. See ARM 17.8.504. Pursuant to ARM 7.8.505, Montana assesses an annual air quality operation fee against the owner or operator of any source issued a Montana air quality permit or an operating permit or which is registered with the Department as an oil and gas facility under ARM 17.8.1701, et seq.

State rules(s)	Federal action	Action reference
ARM 17.8.504	Not Submitted	State only rule.
ARM 17.8.505	Not submitted	State only rule.
ARM 17.8.1701, et seq.	Pending	MT submitted 11/1/06.

b. EPA Analysis: Montana's approved title V operating permit program meets the requirements of CAA section 110(a)(2)(L) for the 1997 ozone NAAQS. As discussed in the Direct Final Rule approving the State's title V program (65 FR 37049, June 13, 2000), the State demonstrated that the fees collected were sufficient to administer the program.

14. 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.

a. Montana's response to this requirement: As a matter of practice, the Department consults with the local agencies when necessary to implement a control plan for a nonattainment area. The Department also meets with county air pollution control program staff and discusses monitoring issues, including ozone, prior to making decisions regarding monitoring needs, monitor type, locations, and monitoring schedules.

Section 75-2-112(2)(j) of the Montana CAA requires the Department to “ * * * advise, consult, contract, and cooperate with other agencies of the state, local governments, industries, other states, interstate and interlocal agencies, the United States, and any interested persons or groups; * * * ”

Parties affected by Department actions, including local political subdivisions, may petition the BER for a hearing and address of their grievances, see ARM 17.8.140, 17.8.141, and 17.8.142.

State rule(s)	Federal action	Action reference
ARM 17.8.140	Approved	66 FR 42427.
ARM 17.8.141	Approved	66 FR 42427.
ARM 17.8.142	Approved	66 FR 42427.

b. EPA Analysis: Montana's submittal meets the requirements of CAA section 110(a)(2)(M) for the 1997 ozone NAAQS.

V. What action is EPA taking?

In this action, EPA is proposing to approve the following infrastructure elements for the 1997 ozone NAAQS: (A), (B), (C) with regards to the requirement to have a SIP-approved minor NSR program, (D)(ii), (E), (F), (G), (H), (J) with regards to the requirements of sections 121 and 127 of the Act, (K), (L), and (M).

In this action, EPA is proposing to disapprove the following infrastructure elements for the 1997 ozone NAAQS: (C) with regards to the requirement for the SIP to include a permit program as required in part C of title I of the Act, and (J) with regards to the requirement for the SIP to meet the applicable requirements of part C relating to PSD.

In this action, EPA is taking no action on infrastructure elements (D)(i) and (I) for the 1997 ozone NAAQS.

VI. Statutory and Executive Order Reviews

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, October 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 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, August 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, February 16, 1994).

In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.

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

Dated: May 12, 2011.

James B. Martin,

Acting Regional Administrator, Region 8.

Footnotes

1.  Memorandum from William T. Harnett, Director, Air Quality Policy Division, “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM_2.5 National Ambient Air Quality Standards” (Oct. 2, 2007).

2.  In its certification, Montana noted here and elsewhere that EPA has subsequently approved revisions to the cited provisions and in some instances Montana has submitted revisions to the provisions but EPA has not yet taken action on them.

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 Excess Emissions During Malfunctions, Startup, and Shutdown.” (Sept. 20, 1999).

4.  In particular, the State's definitions of “major stationary source,” ARM 17.8.801(22)(b), “net emissions increase,” ARM 17.8.801(24), and “significant,” ARM 17.8.801(27)(a), do not meet the corresponding requirements in, respectively, 40 CFR 51.166(b)(1)(i)(c)(ii), 51.166(b)(2)(ii), and 51.166(b)(23)(i) with regard to treating nitrogen oxides as an ozone precursor. In addition, the definition of “air pollutant” used in the State's PSD program does not meet the requirements of 40 CFR 51.166(49)(i)(a) regarding identifying nitrogen oxides as an ozone precursor. See 72 FR at 71699.

5.  Montana's certification cited MCA 2-2-203, which appears to be a typographical error.