# 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

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## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** December 13, 1994

## Text

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]
BILLING CODE 6560-50-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-30512. Public record. Not legal advice.