Clean Air Act Approval and Promulgation of State Implementation Plan for Montana; Missoula; PMINF10 and CO Contingency Measures and Local Regulations; Disapproval of Missoula Variance Provision

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MT22-1-6399a, MT9-3-6561a, & MT13-2-6560a; FRL-5118-3]

Clean Air Act Approval and Promulgation of State Implementation

Plan for Montana; Missoula; PM10 and CO Contingency Measures and

Local Regulations; Disapproval of Missoula Variance Provision

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 2, 1994.

This submittal addresses the Federal Clean Air Act requirement to

submit contingency measures for both particulate matter with an

aerodynamic diameter less than or equal to a nominal 10 micrometers

(PM10) and for carbon monoxide (CO) for the areas in Missoula

designated as nonattainment for the PM10 and CO National Ambient

Air Quality Standards (NAAQS). Further, this submittal satisfies

several commitments made by the State in a previous PM10 SIP

submittal. Due to the completion of those commitments, EPA is approving

the related rules of the Missoula City-County Air Pollution Control

Program, as adopted by the Montana Board of Health and Environmental

Sciences (MBHES) on June 28, 1991 and amended on March 20, 1992 and

November 19, 1993, and submitted by the Governor in letters dated

August 20, 1991, June 4, 1992, and March 2, 1994. These rules include

regulations regarding inspections, emergency procedures, minor source

construction permitting, open burning, and wood waste burners. EPA also

approves minor revisions to the previously approved Missoula City-

County Air Pollution Control Program's Chapters VII and VIII, as

included in the March 2, 1994 submittal. Further, EPA is declining to

take action on Missoula's minor source operating permit regulations.

Finally, EPA disapproves Missoula City-County Air Pollution Control

Program's Chapter X, Variances, which was submitted on August 20, 1991.

DATES: This final rule is effective on February 13, 1995 unless notice

is received by January 12, 1995 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 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.

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, 999 18th Street, suite 500, Denver,

Colorado, (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.

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\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 action 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). Such States

were also required to submit contingency measures by November 15, 1993

(see 57 FR 13543). These measures must become effective, without

further action by the State or EPA, upon a determination by EPA that

the area has failed to achieve reasonable further progress (RFP) or to

attain the PM10 National Ambient Air Quality Standards (NAAQS) by

the applicable statutory deadline. See section 172(c)(9) and 57 FR

13510-13512 and 13543-13544.

On November 15, 1990, the Missoula area was also designated

nonattainment and classified as a moderate area for CO by operation of

law. See section 107(d)(4)(B) of the Act; 56 FR 56694 at 56705-56706,

56790 (November 6, 1991); 40 CFR 81.327 (Missoula and vicinity). Unlike

PM10 nonattainment areas, moderate CO areas with a design value of

less than or equal to 12.7 parts per million (including Missoula) are

not required by the Act to submit a SIP demonstrating attainment of the

NAAQS. Rather, these areas are required to submit certain SIP elements,

including an oxygenated fuels program, an emissions inventory, and

contingency measures. Section 172(c)(9) of the Act requires the State

to submit contingency measures for implementation in the event that the

area fails to reach attainment by the applicable attainment date

(December 31, 1995). EPA has established November 15, 1993 as the

deadline by which the contingency measures must be submitted to EPA as

a SIP revision.

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 2, 1994. The revisions address contingency measures for PM10

and CO, and they also amend several of the Missoula City-County Air

Pollution Control Program regulations.

EPA approved a large portion of the Missoula City-County Air

Pollution Control Program on January 18, 1994 (59 FR 2537-2540). Some

of the local regulation amendments, which are included in the March 2,

1994 submittal, were made to satisfy commitments made by the Governor

with the original PM10 SIP submittal. In the January 18, 1994

rulemaking, EPA delayed action on the regulations related to the

Governor's commitments.

To address deficiencies identified by EPA, the State took

commitments through the public hearing process on November 23, 1992,

and submitted the commitments to EPA as additional tasks to be

completed to correct the deficiencies in the Missoula and statewide SIP

(a more detailed discussion of these commitments can be found in EPA's

prior proposed rulemaking action on the Montana PM10 SIP revisions

for Missoula (58 FR 48339, September 15, 1993), the Technical Support

Document (TSD) for that action, Section II.E. below, and the TSD for

this action).

Due to the satisfaction of those commitments, EPA is now approving

the following Missoula City-County Air Pollution Control Program

regulations as adopted by the State of Montana on June 28, 1991 and

submitted to EPA by Montana's Governor on August 20, 1991, with

amendments adopted by the State on March 20, 1992 and November 19, 1993

and submitted to EPA by the Governor on June 4, 1992 and March 2, 1994,

respectively: Chapter IX--Subchapter 4, Emergency Procedures;

Subchapter 13, Open Burning; and Subchapter 14, Rule 1407, Wood-Waste

Burners.

EPA is also approving the following minor revisions to two

previously approved chapters of the Missoula City-County Air Pollution

Control Program--revisions to Chapter VII, involving a name change for

the advisory council, and revisions to Chapter VIII, regarding

inspections. These revisions were also adopted by the State on November

19, 1993 and were included in the March 2, 1994 submittal.

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.

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\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).

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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 public hearings for the local air pollution

control program on June 28, 1991 and March 2, 1992, and a hearing was

held on November 19, 1993 to address the Missoula contingency measures

and further revisions to the local air pollution control program

regulations. Following the public hearings, the local air pollution

control plan, revisions, and the Missoula contingency measures were

adopted by the State.

The local air pollution control program was submitted as a proposed

revision to the SIP by the Governor with a letter dated August 20,

1991. In a letter to the State dated December 4, 1991, EPA identified

deficiencies with the local program. Some of these deficiencies were

addressed in the Missoula PM10 SIP, which was submitted by the

Governor to EPA in a letter dated June 4, 1992. Commitments to correct

the remaining deficiencies were submitted by the Governor in a letter

dated November 30, 1992. EPA described the commitments and approved the

provisions of the local program that were not affected by these

commitments on January 18, 1994 (59 FR 2537). A detailed description of

the Missoula City-County regulations that are the subject of this

action, the deficiencies that EPA identified in its December 4, 1991

letter to the State, the State's commitments to address these

deficiencies, and the current revisions is contained in the TSD for

this action.

The SIP revisions were reviewed by EPA to determine completeness in

accordance with the completeness criteria set out at 40 CFR part 51,

appendix V. The submittals were found to be complete and letters dated

December 4, 1991, December 11, 1992, and May 12, 1994 were forwarded to

the Governor indicating the completeness of the submittals and the next

steps to be taken in the review process.

B. Contingency Measures

The Clean Air Act requires State's 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 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 Clean Air Act

sections 172(c)(1) and 189(a)(1)(C)). 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/

provide for timely attainment of the NAAQS and the additional formal

air quality planning following the determination (57 FR 13511).

The Act similarly requires that states containing certain CO

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 or to attain

the standards, as described in section 172(c)(9). (``Not Classified''

areas, that is, areas that had a design value less than the 9.0 part

per million CO NAAQS at the time of designation, are not required to

submit contingency measures.) Pursuant to section 172(b), the

Administrator has established a schedule providing that states

containing areas not exempted from the contingency measure requirement

shall submit SIP revisions containing contingency measures no later

than November 15, 1993. EPA guidance (``Technical Support Document to

Aid States with the Development of Carbon Monoxide State Implementation

Plans,'' EPA-452/R-92-003, July 1992) recommends that implementation of

the contingency measures provide vehicle miles travelled (VMT)

reductions or emission reductions sufficient to counteract the effect

of one year's growth in VMT. However, the Act does not specify how many

contingency measures are needed or the magnitude of emissions

reductions that must be provided by these measures. In the interim

period (i.e., after an area fails to attain and while required

additional measures are being adopted due to being reclassified to

serious), EPA believes that contingency measures must provide for

continued progress toward the attainment goal. This would be the

minimum requirement and is consistent with the statutory scheme.

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

affect 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 PM10 and CO contingency measures for Missoula were

developed by the Missoula City-County Health Department (MCCHD), with

input from the Montana Department of Health and Environmental Sciences

(MDHES). After a local public hearing on September 16, 1993, the

Missoula City-County Air Pollution Control Board adopted the measures.

At its November 19, 1993 MBHES public hearing, the Board adopted the

contingency measures.

The Governor submitted the contingency measures to EPA with a

letter dated March 2, 1994. After reviewing the submittal for

conformance with the completeness criteria in 40 CFR part 51, appendix

V, EPA determined the submittal to be administratively and technically

complete and notified the Governor of such determination in a letter

dated May 12, 1994.

1. PM10 Contingency Measure

Upon sixty days notification by EPA4 that Missoula has failed

to attain the PM10 NAAQS or make RFP, MCCHD will select a

contingency measure rule based on chemical or microscopic analysis of

exposed PM10 filters to determine which source is the significant

contributor to the PM10 violation. If, after analysis, the major

contributing source is determined to be re-entrained road dust, the

area of regulated road sanding materials will be expanded to include

Section 1, T12N R20W; Sections 5 and 24, T13N R19W; and Sections 19,

24, 25, 30, 31, and 36, T13N R20W (i.e., Rule 1401(7)(b) will be

implemented). In general terms, the regulated sanding material usage

area will be expanded to include East Missoula, Southwest Missoula near

Buckhouse Bridge, West Missoula between the Clark Fork and Bitterroot

Rivers, and Northwest Missoula in the Grant Creek area.

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\4\The actual wording of Missoula's PM10 contingency

measure regulation is ``[u]pon sixty (60) days notification by the

Montana Department of Health and Environmental Sciences and U.S. EPA

* * *.'' However, in a November 3, 1994 letter from Jeffrey T.

Chaffee, MDHES, to Douglas M. Skie, EPA, the State indicated that

the word ``and'' is not intended to imply that EPA cannot make an

independent finding of Missoula's failure to attain the standard.

Therefore, EPA is approving this regulation based on the expectation

that all actions needed to affect full implementation of the

contingency measure will occur within 60 days after EPA notifies the

State of Missoula's failure to attain the PM10 standard or make

RFP, i.e., the State need not provide notification as well.

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If after analysis the major contributing source is determined to be

residential wood burning, then the exemption for burning during an air

pollution alert allowed for Class I permitted stoves and dealer

demonstration permitted devices will not be allowed (i.e., Rule

1428(5)(d) and (7)(b) will be implemented). Regardless of the results

of the analysis, either Rule 1401(7)(b) or Rule 1428(5)(d) and (7)(b)

will be implemented within sixty days of notification from EPA.

2. CO Contingency Measure

Within sixty days of notification by EPA5 that the Missoula CO

nonattainment area has failed to attain the CO NAAQS, the MCCHD will

implement the contingency measure, Rule 1428(5)(d), immediately. This

portion of the Missoula Solid Fuel Burning Devices regulations states

that Rule 1428 (5)(a) and (7)(d) will be modified to delete Class I and

Dealer Demonstrated permitted devices, and Rule 1428(5)(c) is void. In

other words, if the area has failed to attain the CO NAAQS, then the

exemption for burning during an air pollution alert for permitted Class

I and dealer demonstrated woodburning devices will not be allowed.

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\5\The actual wording of Missoula's CO contingency measure

regulation is ``[w]ithin sixty (60) days of notification by the

MDHES and the U.S. EPA * * *'' However, in a November 3, 1994 letter

from Jeffrey T. Chaffee, MDHES, to Douglas M. Skie, EPA, the State

indicated that the word ``and'' is not intended to imply that EPA

cannot make an independent finding of Missoula's failure to attain

the standard. Therefore, EPA is approving this regulation based on

the expectation that all actions needed to effect full

implementation of the contingency measure will occur within 60 days

after EPA notifies the State of Missoula's failure to attain the CO

standard, i.e., the State need not provide notification as well.

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C. Effectiveness of the Contingency Measures

1. Re-entrained Road Dust Contingency Measure for PM10

If the re-entrained road dust contingency measure is implemented,

the control efficiency of the re-entrained road dust measures will be

76% in the 24-hour attainment demonstration (an increase of 14% over

the control efficiency of the re-entrained road dust measures in the

original SIP attainment demonstration). This calculation takes into

account the expanded area for using washed sand, the existing areas for

using washed sand and liquid de-icer, and the existing street sweeping

measures (see the TSD for the Missoula PM10 SIP for further

details on the existing re-entrained road dust strategies). Total

reduction from the contingency measure is calculated to be 4073 pounds

of PM10 per day.

2. Residential Woodburning Contingency Measure for PM10

Since no credit was taken for the residential woodburning measures

in the original SIP attainment demonstration, control efficiency from

the residential woodburning contingency measure increases in the 24-

hour attainment demonstration. See the TSD for the Missoula PM10

SIP for further details on the existing residential woodburning

strategies (available at the EPA Region VIII address listed at the

beginning of this notice). Total reduction from the contingency measure

would be 12.6 pounds of PM10 per day.

EPA believes this contingency measure is adequate for several

reasons. First, the existing Missoula solid fuel burning device

regulation (Rule 1428) is already a very stringent mandatory

curtailment program. Any further emissions reductions through this

program are very difficult to achieve. Second, the emissions inventory

for the Missoula area indicates that re-entrained road dust contributes

a somewhat higher portion of the PM10 emissions than residential

woodburning. Therefore, the analysis necessary for the contingency

measure selection process most likely will indicate that residential

woodburning is not the major contributing source to Missoula's failure

to attain the PM10 NAAQS or make RFP, and that the re-entrained

road dust contingency measure should be implemented instead of the

woodburning measure. Finally, the control measures implemented in the

PM10 SIP achieve more emissions reductions than needed to

demonstrate attainment of the PM1010 NAAQS, as indicated by the

State's predicted 24-hour attainment concentration of 143.8 g/

m3 (see 58 FR 48341-48342, 59 FR 2538, and the related TSD). Since

the 24-hour PM10 NAAQS is 150 g/m3, this established

safety margin further supports the reasonableness of the contingency

measure.

3. Residential Woodburning Contingency Measure for CO

With the implementation of the residential woodburning contingency

measure, Class I devices will not be allowed to burn during an alert.

Assuming a conservative 60% compliance rate, 7,915 pounds of CO per day

will be reduced. Since the estimated one-year growth of vehicle miles

travelled (VMT) is 1%, and the CO emissions inventory report has

determined that 140,786 pounds of CO per day are emitted from

automobiles, approximately 1,409 pounds of CO per day are needed for a

sufficient amount of reduction from the contingency measure. Therefore,

emissions reductions are adequately met with the implementation of this

contingency measure.

D. Early Implementation

Subchapter 3, Contingency Measure Selection Process, of the

Missoula City-County Air Pollution Control Program's Chapter IX--

Regulations, Standards, & Permits--sets out its early implementation

policy as follows. For either the PM10 or CO contingency measures,

early implementation of the measures will not result in the requirement

to implement additional moderate area contingency measures if the area

fails to attain the NAAQS or make reasonable further progress in

reducing emissions. However, if Missoula is reclassified to a serious

nonattainment area, additional planning requirements, including, but

not limited to, serious area contingency measures, would be necessary.

(See 59 FR 41998, August 16, 1994.)

E. PM10 SIP Commitments and Variance Provision

In a letter dated August 20, 1991, the Governor of Montana

submitted to EPA the Missoula City-County Air Pollution 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,

National standards of performance for new stationary sources (NSPS),

National emission standards for hazardous air pollutants (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.

Commitments related to the Missoula local regulations were as

follows:

(A) Missoula shall add language in Chapter VIII of the Missoula

regulations to include provisions for inspection of sources to

ascertain compliance with the adopted emission control action for each

emergency episode stage.

(B) Missoula shall review and revise the internal and external

communication strategies contained in Missoula's emergency episode

regulations (Subchapter 4) to ensure consistency with the state

requirements (SIP Chapters 7 and 8).

(C) Missoula shall revise the Missoula permitting regulation to correct

the deficiencies that EPA identified in James Scherer's December 4,

1991 letter by:

a. Replacing the terms ``new or altered source or stack'' and ``new

or altered source'' with more definitive terms.

b. Adding the terms ``demolition'' and ``modifications'' to the

definition of construction.

c. Eliminating the blanket exemption from permitting for emergency

equipment installed at hospitals [Rule 1102(1)(h)].

d. Eliminating the blanket exemption from permitting for equipment

associated with the storage of agricultural products [1102(1)(f)].

e. Replacing the term ``air pollution control capability''

contained in Rule 1103(1) with the term ``air pollution control

equipment or techniques.''

f. Changing the reference to the 1977 Federal Clean Air Act

contained in Rule 1103 to the 1990 Federal Clean Air Act.

g. Replacing the term ``expected production capacity'' contained in

Rule 1105(1)(b)(ii) with the term ``maximum design production

capacity.''

h. Replacing the word ``or'' contained in Rule 1109, Sections (1),

(2), and (3) with the word ``and.''

(D) If suggestions are made by Montana for Missoula to revise their

open burning regulations in accordance with amendments to Montana open

burning regulations to ensure that a state open burning permit to burn

creosote railroad ties cannot be issued for any location in Missoula

County, Missoula shall complete the necessary revisions.

(E) Missoula shall revise Rule 1407 to make it consistent with the

proposed amendments to Montana Rule 16.8.1407 regarding wood waste

burners.

(F) Missoula shall revise the Missoula NSPS and NESHAP regulations to

incorporate all federal requirements promulgated through July 1, 1992.

The revisions to the Missoula City-County Air Pollution Control

Program regulations, which were submitted by the Governor with a letter

dated March 2, 1994, fulfill four of the State's commitments (see A, B,

C, and E above). However, EPA still has concerns with respect to the

minor source operating permit regulations (see below).

Additional information submitted to Doug Skie, EPA, from Jeff

Chaffee, MDHES, in a letter dated June 9, 1994 fulfills one more

commitment (see D above). In this letter, the State indicated that

there is no need for Missoula to revise its open burning regulations.

The State revised its open burning regulations to prohibit the burning

of creosote railroad ties (revisions adopted by the Montana Board of

Health and Environmental Sciences at its May 20, 1994 hearing), and the

Missoula regulation already prohibits such burning. Therefore, the

State does not believe that revisions to Missoula's open burning

regulations are required at this time.

Therefore, EPA is now approving the following portions of Chapter

IX of the Missoula City-County Air Pollution Control Program, as

submitted in a letter dated August 20, 1991, with revisions submitted

in letters dated June 4, 1992 and March 2, 1994--Subchapters 4 and 13,

and Subchapter 14, Rule 1407--addressing emergency procedures, open

burning, and wood-waste burners, respectively. EPA is also approving

all portions of Subchapter 11--Permit, Construction, and Operation of

Air Contaminant Sources--except Rules 1102(3), 1105(2), and 1111(2).

The portions of Subchapter 11 that EPA is approving relate to

construction permits.

Although EPA is approving Missoula's construction permit

regulations of Subchapter 11 as part of the SIP, EPA's approval does

not include Missoula's minor source operating permit regulations, which

are found in Chapter IX: Subchapter 11, Rules 1102(3), 1105(2), and

1111(2). EPA is declining to take action on these minor source

operating permit regulations because they do not meet the criteria of

the June 28, 1989 Federal Register notice, which are required in order

for the minor source operating permits to be considered federally

enforceable (see 54 FR 27282).

Also included in the March 2, 1994 submittal are minor amendments

to two previously approved chapters of the Missoula City-County Air

Pollution Control Program. These revisions involve a name change for

the air advisory council listed in Chapter VII, and amendments to

Chapter VIII, to provide for emergency episode inspections of operating

point sources, which are capable of emitting 25 tons or more per year

of any regulated air pollutant, to ensure compliance with abatement

plan requirements. EPA approves these revisions.

EPA's concerns regarding Missoula City-County Air Pollution Control

Program, Chapter X, Variances, as included with the August 20, 1991

submittal, have not been addressed. In the December 4, 1991 letter to

the Governor, EPA informed the State that section 110(i) of the Federal

Clean Air Act, as amended, prohibits the suspension of any requirement

of an applicable SIP from being taken with respect to a stationary

source by a State or the Administrator of EPA, except by SIP revision

under section 110(a) (and a few other exceptions). Neither the June 4,

1992 submittal, nor the March 2, 1994 submittal, corrected this

problem. Therefore, EPA must disapprove Missoula's Chapter X,

Variances, at this time.

One of the November 30, 1992 Governor's commitments regarding

Missoula is still outstanding. That commitment addresses Missoula NSPS

and NESHAP regulations (see (F), above). EPA will take separate action

on those regulations, as appropriate.

F. 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 specific measures contained in the Missoula contingency plan

are addressed above in Section II.B. The Missoula air pollution control

regulations, as included in the SIP, are legally enforceable by 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

an 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).

On November 19, 1993, the MBHES issued a Board order approving the

Missoula PM10 and CO contingency measures and revisions to the

Missoula City-County regulations. These regulations and the November

19, 1993 Board order were submitted to EPA as a modification to the

Montana SIP.

The Missoula City-County rules are in effect now. The State of

Montana has a program that will ensure that the contingency measures

contained in the Missoula SIP are adequately enforced. EPA believes

that the State's and Missoula's existing air enforcement program will

be adequate. The TSD for this action contains further information on

enforceability requirements, responsibilities, and a discussion of the

personnel and funding intended to support effective implementation of

the control measures.

III. Final Action

EPA is approving Montana's SIP revisions, submitted by the Governor

with a letter dated March 2, 1994, for the Missoula, Montana

nonattainment area. This submittal addressed PM10 and CO

contingency measure plans that were due on November 15, 1993. These

plans involve the incorporation of a new Subchapter 3 (Contingency

Measure Selection Process) in Chapter IX of the Missoula City-County

Air Pollution Control Program and revisions to Chapter IX, Subchapter

14, Rule 1401 (regarding the contingency measure to expand the area of

regulated road sanding materials) and Rule 1428 (regarding the

contingency measure to void certain solid fuel burning device permits).

The March 2, 1994 submittal also revised several Missoula City-

County Air Pollution Control Program regulations, as committed to be

completed by the Governor of Montana to EPA in a letter dated November

30, 1992. Due to the satisfaction of those commitments, EPA can now

approve the following portions of Chapter IX of the Missoula City-

County Air Pollution Control Program, as submitted on August 20, 1991,

with revisions submitted June 4, 1992, and March 2, 1994: (1)

Subchapter 4, Emergency Procedures; (2) all portions of Subchapter 11,

Permit, Construction, and Operation of Contaminant Sources--except

Rules 1102(3), 1105(2), and 1111(2) (the portions of Subchapter 11 that

EPA is approving relate to construction permits); (3) Subchapter 13,

Open Burning; and (4) Subchapter 14, Rule 1407, Wood-Waste Burners.

Although EPA is approving Missoula's construction permit

regulations of Subchapter 11 as part of the SIP, EPA's approval does

not include Missoula's minor source operating permit regulations. EPA

is declining to take action on Missoula's minor source operating permit

regulations, which are found in Chapter IX: Subchapter 11, Rules

1102(3), 1105(2), and 1111(2), because they do not meet the criteria of

the June 28, 1989 Federal Register document. These criteria must be met

in order for the minor source operating permits to be considered

federally enforceable (see 54 FR 27282).

EPA also approves minor revisions to previously approved Missoula

City-County Air Pollution Control Program Chapter VII and Chapter VIII,

as included in the March 2, 1994 submittal.

Finally, EPA is disapproving Missoula City-County Air Pollution

Control Program, Chapter X, Variances, as adopted by the MBHES on June

28, 1991, and submitted by the Governor of Montana in a letter dated

August 20, 1991. This chapter is not consistent with section 110(i) of

the Clean Air Act, which prohibits any State or EPA from granting a

variance from any requirement of an applicable implementation plan with

respect to a stationary source.

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 February 13, 1995 unless, by January 12, 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 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

February 13, 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.

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).

EPA's disapproval--of the portion of the submittal containing

Missoula's variance rule--under section 110 and subchapter I, part D of

the Clean Air Act does not affect any existing requirements applicable

to small entities. Any pre-existing Federal requirements remain in

place after this disapproval. Federal disapproval of the state

submittal does not affect its state-enforceability. Moreover, EPA's

disapproval of the submittal does not impose any new Federal

requirements. Therefore, EPA certifies that this disapproval action

does not have a significant impact on a substantial number of small

entities because it does not remove existing requirements nor does it

impose any new Federal requirements.

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 February 13, 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, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Particulate matter, Reporting and recordkeeping

requirements, Sulfur dioxide, Volatile organic compounds.

Dated: November 29, 1994.

William P. Yellowtail,

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)(35) to read

as follows:

Sec. 52.1370 Identification of plan.

* * * * *

(c) * * *

(35) The Governor of Montana submitted PM10 and CO contingency

measures for Missoula, Montana in a letter dated March 2, 1994. The

Governor of Montana also submitted the Missoula City-County Air

Pollution Control Program in a letter dated August 20, 1991, with

amendments submitted in letters dated June 4, 1992 and March 2, 1994.

The March 2, 1994 submittal satisfies several commitments made by the

State in its original PM10 moderate nonattainment area SIP.

(i) Incorporation by reference.

(A) Board order issued on November 19, 1993 by the Montana Board of

Health and Environmental Sciences approving the amendments to Missoula

City-County Air Pollution Control Program Chapter VII, VIII, and IX,

regarding, among other things, the PM10 and CO contingency

measures, inspections, emergency procedures, permitting, and wood-waste

burners.

(B) Missoula City-County Chapter IX, Subchapter 3, effective

November 19, 1993, which addresses the PM10 and CO contingency

measure selection process.

(C) Missoula City-County Rule 1401(7), effective November 19,

1993, which addresses PM10 contingency measure requirements for an

expanded area of regulated road sanding materials.

(D) Missoula City-County Rule 1428(5) and 1428(7), effective

November 19, 1993, which addresses PM10 and CO contingency measure

requirements for solid fuel burning devices.

(E) Missoula City-County Air Pollution Control Program Chapter IX,

Subchapter 13, Open Burning, effective June 28, 1991.

(F) Other Missoula City-County Air Pollution Control Program

regulations effective June 28, 1991, with amendments effective on March

20, 1992 and November 19, 1993, as follows: all portions of Chapter IX,

Subchapter 11, Permit, Construction and Operation of Air Contaminant

Sources, except, Rules 1102(3), 1105(2), and 1111(2).

(G) Other Missoula City-County Air Pollution Control Program

regulations effective June 28, 1991, with amendments effective on

November 19, 1993, as follows: Chapter IX, Subchapter 4, Emergency

Procedures and Chapter IX, Subchapter 14, Rule 1407, Prevention,

Abatement and Control of Air Pollution from Wood-Waste Burners.

(H) Minor revisions to Missoula City-County Air Pollution Control

Program Chapter VII, Air Quality Advisory Council, and Chapter VIII,

Inspections, effective on November 19, 1993, as follows: Chapter VII(1)

and Chapter VIII(4).

3. Section 52.1390 is added to read as follows:

Sec. 52.1390 Missoula Variance Provision.

The Missoula City-County Air Pollution Control Program's Chapter X,

Variances, which was adopted by the Montana Board of Health and

Environmental Sciences on June 28, 1991 and submitted by the Governor

of Montana to EPA in a letter dated August 20, 1991, is disapproved.

This rule is inconsistent with section 110(i) of the Clean Air Act,

which prohibits any State or EPA from granting a variance from any

requirement of an applicable implementation plan with respect to a

stationary source.

[FR Doc. 94-30512 Filed 12-12-94; 8:45 am]

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