Clean Air Act Approval and Promulgation of PMINF10 State Implementation Plan for Montana; Missoula Air Pollution Control Program Regulations

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MT31-1-7007a; FRL-5275-1]

Clean Air Act Approval and Promulgation of PM10 State

Implementation Plan for Montana; Missoula Air Pollution Control Program

Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA approves the State implementation plan (SIP) revisions

submitted by the State of Montana with a letter dated March 3, 1995.

This submittal consists of several revisions to Missoula City-County

Air Pollution Control Program regulations, which were adopted by the

Montana Board of Health and Environmental Sciences (MBHES) on September

16, 1994. These rules include regulations regarding emergency

procedure, paving of roads, driveways, and parking lots, street

sweeping, National standards of performance for new stationary sources

(NSPS), National Emission Standards for Hazardous Air Pollutants

(NESHAPs), and solid fuel burning devices. Further, this submittal

satisfies the one remaining commitment made by the State in a previous

PM10 SIP submittal.

DATES: This final rule is effective on October 30, 1995 unless adverse

comments are received by September 29, 1995. If the effective date is

delayed, timely notice will be published in the Federal Register.

ADDRESSES: Copies of the State's submittal and other information are

available for inspection during normal business hours at the following

locations:

Air Programs Branch, Environmental Protection Agency, Region VIII,

999 18th Street, suite 500, Denver, Colorado 80202-2405; Montana

Department of Health and Environmental Sciences, Air Quality Division,

Cogswell Building, Helena, Montana 59620-0901; and The Air and

Radiation Docket and Information Center, 401 M Street SW., Washington,

DC 20460.

FOR FURTHER INFORMATION CONTACT: Amy Platt, 8ART-AP, Environmental

Protection Agency, Region VIII, (303) 293-1769.

SUPPLEMENTARY INFORMATION:

I. Background

The Missoula, Montana area was designated nonattainment for

PM10 and classified as moderate under Sections 107(d)(4)(B) and

188(a) of the Clean Air Act, upon enactment of the Clean Air Act

Amendments of 1990.1 See 56 FR 56694 (Nov. 6, 1991); 40 CFR 81.327

(Missoula and vicinity). The air quality planning requirements for

moderate PM10 nonattainment areas are set out in Subparts 1 and 4

of Part D, Title I of the Act.2 The EPA has issued a ``General

Preamble'' describing EPA's preliminary views on how EPA intends to

review SIPs and SIP revisions submitted under Title I of the Act,

including those State submittals containing moderate PM10

nonattainment area SIP requirements [see generally 57 FR 13498 (April

16, 1992) and 57 FR 18070 (April 28, 1992)). Because EPA is describing

its interpretations here only in broad terms, the reader should refer

to the General Preamble for a more detailed discussion of the

interpretations of Title I advanced in this action and the supporting

rationale.

\1\ The 1990 Amendments to the Clean Air Act made significant

changes to the Act. See Pub. L. No. 101-549, 104 Stat. 2399.

References herein are to the Clean Air Act, as amended (``the

Act''). The Clean Air Act is codified, as amended, in the U.S. Code

at 42 U.S.C. Sections 7401, et seq.

\2\ Subpart 1 contains provisions applicable to nonattainment

areas generally and Subpart 4 contains provisions specifically

applicable to PM10 nonattainment areas. At times, Subpart 1 and

Subpart 4 overlap or conflict. EPA has attempted to clarify the

relationship among these provisions in the ``General Preamble'' and,

as appropriate, in today's notice and supporting information.

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Those States containing initial moderate PM10 nonattainment

areas such as Missoula were required to submit, among other things,

several provisions by November 15, 1991. These provisions are described

in EPA's final rulemaking on the Missoula moderate PM10

nonattainment area SIP (59 FR 2537-2540, January 18, 1994).

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

submitted to EPA the Missoula City-County Air Pollution

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Control Program as a revision to the Montana SIP.

EPA's review identified numerous deficiencies, including

inconsistencies with the State regulations, as well as deficiencies

similar to those EPA identified in the State regulations. In a December

4, 1991 letter from the EPA Region VIII Administrator to the Governor

of Montana, the deficiencies in the Missoula regulations were outlined

in detail (this letter is available for public inspection at the EPA

Region VIII address listed at the beginning of this notice). The

problem areas included rules involving emergency procedures,

permitting, open burning, wood-waste burners, NSPS, NESHAPs, and

variances.

To address EPA's concerns, the State took commitments through the

public hearing process on November 23, 1992 and submitted the

commitments to EPA in a letter dated November 30, 1992, as additional

tasks to be performed to correct the deficiencies in the Missoula and

statewide SIP. Montana requested that EPA consider the August 20, 1991

submittal concurrent with its June 4, 1992 PM10 SIP submittal and

the conditions outlined in the State's commitments.

As a result, EPA approved a large portion of the Missoula City-

County Air Pollution Control Program with its approval of the Missoula

moderate PM10 nonattainment area SIP on January 18, 1994 (59 FR

2537-2540). In the January 18, 1994 rulemaking, EPA delayed action on

the regulations related to the Governor's commitments.

In a March 2, 1994 submittal, the State satisfied several of its

November 30, 1992 commitments related to the Missoula City-County Air

Pollution Control Program. Accordingly, EPA approved the related

regulations on December 13, 1994 (59 FR 64133-64139). However, one of

the November 30, 1992 commitments was still outstanding. That

commitment addressed Missoula NSPS and NESHAP regulations.

II. This Action

Section 110(k) of the Act sets out provisions governing EPA's

review of SIP submittals (see 57 FR 13565-13566). The Governor of

Montana submitted revisions to the SIP for Missoula with a letter dated

March 3, 1995. The revisions amend several of the Missoula City-County

Air Pollution Control Program regulations, including the regulations

related to NSPS and NESHAPs.

A. Analysis of State Submission

The Act requires States to observe certain procedural requirements

in developing implementation plans and plan revisions for submission to

EPA. Section 110(a)(2) of the Act provides that each implementation

plan submitted by a State must be adopted after reasonable notice and

public hearing.3 Section 110(l) of the Act similarly provides that

each revision to an implementation plan submitted by a State under the

Act must be adopted by such State after reasonable notice and public

hearing.

\3\ Also Section 172(c)(7) of the Act requires that plan

provisions for nonattainment areas meet the applicable provisions of

Section 110(a)(2).

EPA also must determine whether a submittal is complete and

therefore warrants further EPA review and action (see Section 110(k)(1)

and 57 FR 13565). The EPA's completeness criteria for SIP submittals

are set out at 40 CFR Part 51, Appendix V. The EPA attempts to make

completeness determinations within 60 days of receiving a submission.

However, a submittal is deemed complete by operation of law if a

completeness determination is not made by EPA six months after receipt

of the submission.

To entertain public comment, the State of Montana, after providing

adequate notice, held a public hearing for the local air pollution

control program revisions on September 16, 1994. Following the public

hearing, the local air pollution control program revisions were adopted

by the State.

The local air pollution control program revisions were submitted as

a SIP revision by the Governor with a letter dated March 3, 1995. The

SIP revision was reviewed by EPA to determine completeness in

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

Appendix V. The submittal was found to be complete and a letter dated

April 27, 1995 was forwarded to the Governor indicating the

completeness of the submittals and the next steps to be taken in the

review process.

B. Revisions to the Local Regulations

Four public hearings were held at the local level in December 1993,

and March, May, and July 1994. The Missoula City-County Air Pollution

Control Board adopted the changes to the regulations, and, finally, all

changes were approved at a joint public hearing by the City Council and

County Commissioners on July 25, 1994. At its September 16, 1994 MBHES

public hearing, the Board adopted the local regulation revisions.

Specifically, the revisions are as follows:

1. Chapter XVI was amended to more clearly indicate that upon

approval by the Missoula City Council and Board of County

Commissioners, changes to the local air pollution rules will be

forwarded to the MBHES for final approval. Such amendments and

revisions become effective upon approval by the MBHES.

2. Chapter IX, Subchapter 4, Rule 401 was amended to lower the

level at which PM10 air pollution alerts are called. The level was

changed from 100 g/m3 to 80 g/m3.

3. Chapter IX, Subchapter 14, Rule 1401 was amended to include new

sections which address requirements for the paving of new public roads,

private roads, private driveways, and parking lots in the Air

Stagnation Zone. Such projects must apply for a road construction

permit and provide a plan which includes, among other things, detailed

information regarding the measurements of the proposed project,

thickness of the pavement that shall be used on the proposed

construction, a description of the intended uses of the project,

including the estimated number and type of vehicles using the road,

driveway, or parking lot, and a description of adjoining exterior roads

(e.g., paved, unpaved, public, private). After permit approval,

requirements are specified for the completion of paving and maintenance

of new public roads and parking lots and private (including commercial

and industrial) roads, driveways, and parking lots. A further amendment

incorporates existing city street sweeping ordinances into the air

pollution control program.

4. Chapter IX, Subchapter 14, Rules 1423 and 1424 were amended to

incorporate by reference the federal NSPS and NESHAPs rules as of July

1, 1992. These revisions satisfy the State's one remaining November 30,

1992 commitment included with the original moderate PM10

nonattainment area SIP for Missoula. That commitment was as follows:

``Missoula shall revise the Missoula NSPS and NESHAP regulations to

incorporate all federal requirements promulgated through July 1,

1992.''

5. Chapter IX, Subchapter 14, Rule 1428 was amended to require all

new installations of solid fuel burning devices (either in new

construction or in existing residences) to meet an emission rate of 1.0

gram per hour or less. In addition, uncertified woodstoves must be

replaced or removed upon the sale of a home or other title transfer.

Further, fines have been increased from $20 to $50 for the first

violation, $50 to $200

[[Page 45053]]

for the second violation, and $100 to $500 for third and subsequent

violations.

The revisions outlined above are consistent with Federal

requirements, and therefore, are approvable. The revisions to rules

401, 1401, and 1428 are more stringent than the versions used in the

attainment and maintenance demonstrations for the Missoula moderate

PM10 nonattainment area SIP that EPA approved on January 18, 1994

(59 FR 2537). If the State wishes to receive credit for the PM10

emissions reductions in the Missoula moderate nonattainment area that

are achieved through these more stringent requirements, a revised

attainment and maintenance demonstration for the Missoula PM10 SIP

must be submitted to EPA for consideration. However, the State has

indicated that it does not wish to claim credit for these measures at

this time.

C. Enforceability Issues

All measures and other elements in the SIP must be enforceable by

the State and EPA (see Sections 172(c)(6), 110(a)(2)(A) and 57 FR

13556). The EPA criteria addressing the enforceability of SIPs and SIP

revisions were stated in a September 23, 1987 memorandum (with

attachments) from J. Craig Potter, Assistant Administrator for Air and

Radiation, et al. (see 57 FR 13541). State implementation plan

provisions also must contain a program to provide for enforcement of

control measures and other elements in the SIP [see Section

110(a)(2)(C)].

The Missoula air pollution control regulations, as included in the

SIP, are legally enforceable by the Missoula City-County Health

Department (MCCHD). There are civil penalties, which increase with each

violation, for noncompliance with the solid fuel burning device

regulation. Violation of any other provision, regulation or rule

enforced under the program results in a criminal offense punishable by

a fine.

The Missoula City-County Air Pollution Control Program regulations

are also enforceable by the MDHES, if the MCCHD fails to administer the

program. Since the program has been approved by the MBHES in accordance

with Section 75-2-301 of the Montana Clean Air Act and effectuated by a

MBHES order, and since the MDHES can enforce MBHES orders, the MDHES

has independent enforcement powers. Enforcement provisions are found in

the Clean Air Act of Montana, Sections 75-2-401-429, Montana Code

Annotated.

If a State relies on a local government for the implementation of

any plan provision, then, according to Section 110(a)(2)(E)(iii) of the

Act, the State must provide necessary assurances that the State has

responsibility for ensuring adequate implementation of such plan

provision. A State would have responsibility to ensure adequate

implementation if, for example, the State has the authority and

resources to implement the provision when the local entity has failed

to do so.

The Missoula City-County Air Pollution Control Program was

established in accordance with the requirements of Section 75-2-301 of

the Montana Clean Air Act, as amended (1991). A revised version of the

air pollution control regulations was approved by the Missoula City-

County Air Pollution Control Board on April 24, 1991, and on June 28,

1991 the MBHES issued a board order approving these regulations. A

stipulation between the MDHES and the Missoula City-County Air

Pollution Control Board that delineates responsibilities and

authorities between the MDHES and the local authorities was signed

April 29, 1991. On March 20, 1992, the MBHES issued a board order

approving revisions to the Missoula City-County Air Pollution Control

Program. The April 29, 1991 stipulation, the June 28, 1991 Board order,

and the March 20, 1992 Board order were incorporated into the SIP on

January 18, 1994 (59 FR 2540). A November 19, 1993 MBHES Board order

approving further revisions to the Missoula City-County regulations was

incorporated into the SIP on December 13, 1994 (59 FR 64133).

On September 16, 1994, the MBHES issued a Board order approving

additional revisions to the Missoula City-County regulations. These

regulations and the September 16, 1994 Board order were submitted to

EPA as a modification to the Montana SIP.

The Missoula City-County rules are in effect now. The MCCHD has

adequate personnel and funding to support effective enforcement of the

rules. The State of Montana has a program that will ensure that the

Missoula City-County regulations are adequately enforced. EPA believes

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

be adequate.

III. Final Action

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

with a letter dated March 3, 1995, for the Missoula moderate PM10

nonattainment area. This submittal revised several Missoula City-County

Air Pollution Control Program regulations. Specifically, EPA is

approving the following revised portions of Chapter IX, Regulations,

Standards, & Permits: (1) Subchapter 4, Rule 401 regarding emergency

procedures; (2) Subchapter 14, Rules 1401, regarding the paving of

roads, driveways, and parking lots, and 1428, regarding solid fuel

burning devices.

The March 3, 1995 submittal also satisfied the one remaining

commitment made by the Governor of Montana to EPA in a letter dated

November 30, 1992. Due to the satisfaction of that commitment, EPA can

now approve Rules 1423 (NSPS) and 1424 (NESHAPs) of Subchapter 14,

Chapter IX.

EPA also approves minor revisions to previously approved Chapter

XVI, Amendments and Revisions.

EPA is publishing this action without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in a separate document in this Federal

Register publication, EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. Under the procedures

established in the May 10, 1994 Federal Register (59 FR 24054), this

action will be effective October 30, 1995 unless, by September 29,

1995, adverse or critical comments are received.

If such comments are received, this action will be withdrawn before

the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. EPA will not institute a second comment period on this

action. Any parties interested in commenting on this action should do

so at this time. If no such comments are received, the public is

advised that this action will be effective on October 30, 1995.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to a SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant economic impact on a substantial number of small entities.

Small entities include small businesses, small not-for-profit

enterprises, and government entities with jurisdiction over populations

of less than 50,000.

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Approvals of SIP submittals under section 110 and subchapter I,

part D of the Clean Air Act do not create any new requirements, but

simply approve requirements that the State is already imposing.

Therefore, because the Federal SIP-approval does not impose any new

requirements, I certify that it does not have a significant impact on

small entities affected. Moreover, due to the nature of the Federal-

state relationship under the Clean Air Act, preparation of a regulatory

flexibility analysis would constitute Federal inquiry into the economic

reasonableness of state action. The Clean Air Act forbids EPA to base

its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.

E.P.A., 427 U.S. 246, 256-66 (1976); 42 U.S.C. 7410(a)(2).

Under Sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,

1995, EPA must undertake various actions in association with proposed

or final rules that include a Federal mandate that may result in

estimated costs of $100 million or more to the private sector, or to

State, local, or tribal governments in the aggregate.

Through submission of this state implementation plan or plan

revision, the State and any affected local or tribal governments have

elected to adopt the program provided for under Section 110 of the

Clean Air Act. These rules may bind State, local and tribal governments

to perform certain duties. The rules being approved by this action will

impose no new requirements since such sources are already subject to

these regulations under State law. Accordingly, no additional costs to

State, local, or tribal governments, or to the private sector, result

from this action. EPA has also determined that this final action does

not include a mandate that may result in estimated costs of $100

million or more to State, local, or tribal governments in the aggregate

or to the private sector.

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by October 30, 1995. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review must be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements (see section 307(b)(2)).

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Particulate matter, Reporting

and recordkeeping requirements.

Dated: July 28, 1995.

Kerrigan Clough,

Acting Regional Administrator.

Chapter I, title 40 of the Code of Federal Regulations is amended

as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart BB--Montana

2. Section 52.1370 is amended by adding paragraph (c)(41) to read

as follows:

Sec. 52.1370 Identification of plan.

* * * * *

(c) * * *

(41) The Governor of Montana submitted revisions to the Missoula

City-County Air Pollution Control Program in a letter dated March 3,

1995. In addition, the March 3, 1995 submittal satisfies the one

remaining commitment made by the State in its original PM10

moderate nonattainment area SIP.

(i) Incorporation by reference.

(A) Board order issued on September 16, 1994 by the Montana Board

of Health and Environmental Sciences approving the amendments to

Missoula City-County Air Pollution Control Program Chapters IX and XVI

regarding, among other things, emergency procedures, paving of private

roads, driveways, and parking lots, National standards of performance

for new stationary sources, National Emission Standards for Hazardous

Air Pollutants, and solid fuel burning devices.

(B) Missoula City-County Rule 401, Missoula County Air Stagnation

Plan, effective September 16, 1994.

(C) Missoula City-County Rule 1401, Prevent Particulate Matter from

Being Airborne, effective September 16, 1994.

(D) Missoula City-County Rule 1423, Standard of Performance for New

Stationary Sources, effective September 16, 1994.

(E) Missoula City-County Rule 1424, Emission Standards for

Hazardous Air Pollutants, effective September 16, 1994.

(F) Missoula City-County Rule 1428, Solid Fuel Burning Devices,

effective September 16, 1994.

(G) Missoula City-County Air Pollution Control Program Chapter XVI,

Amendments and Revisions, effective September 16, 1994.

[FR Doc. 95-21468 Filed 8-29-95; 8:45 am]

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