Clean Air Act Approval and Promulgation of State Implementation Plan for Montana; Libby Moderate PMINF10 Nonattainment Area

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MT26-7-6874a; FRL-5609-8]

Clean Air Act Approval and Promulgation of State Implementation

Plan for Montana; Libby Moderate PM10 Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: In this action, EPA approves the State implementation plan

(SIP) revisions submitted by the State of Montana on March 15, 1995 to

satisfy the Federal Clean Air Act requirement to submit contingency

measures for the Libby moderate PM10 (particulate matter with an

aerodynamic diameter less than or equal to a nominal 10 micrometers)

nonattainment area. The March 15, 1995 submittal also recodified the

Lincoln County regulations. In addition, EPA is approving a SIP

revision submitted by the Governor of Montana on May 13,

[[Page 51015]]

1996, which included revisions to the Lincoln County regulations

regarding open burning and other minor administrative amendments. EPA

is approving these SIP revisions because they are consistent with the

applicable requirements of the Clean Air Act, as amended (Act), and EPA

guidance.

DATES: This action is effective on November 29, 1996 unless notice is

received by October 30, 1996 that someone wishes to submit adverse or

critical comments. If the effective date is delayed, timely notice will

be published in the Federal Register.

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

available for inspection during normal business hours at the following

locations: Air Program, Environmental Protection Agency, Region VIII,

999 18th Street, Suite 500, Denver, Colorado 80202-2466; Montana

Department of Environmental Quality, Air Quality Division, 836 Front

Street, Helena, Montana 59620-5520; and The Air and Radiation Docket

and Information Center, 401 M Street, SW, Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Vicki Stamper, 8P2-A, U.S.

Environmental Protection Agency, Region VIII, 999 18th Street, Suite

500, Denver, Colorado 80202-2466, (303) 312-6445.

SUPPLEMENTARY INFORMATION:

I. Background

The Libby, Montana area was designated nonattainment for PM10

and classified as moderate under sections 107(d)(4)(B) and 188(a) of

the Act, upon enactment of the Clean Air Act Amendments of 1990. See 56

FR 56694 (Nov. 6, 1991); 40 CFR 81.327 (specifying designations for

Montana). Those States containing initial moderate PM10

nonattainment areas were required to submit several provisions by

November 15, 1991. These provisions, including an attainment

demonstration (or demonstration that timely attainment is

impracticable), are described in EPA's final rulemaking for the Libby

moderate PM10 nonattainment area SIP (59 FR 44627, August 30,

1994). The Libby PM10 control measures targeted re-entrained road

dust, residential wood burning, prescribed burning, and industrial

sources for reductions in PM10 emissions to demonstrate attainment

of the PM10 national ambient air quality standards (NAAQS). See

the August 30, 1994 notice of final rulemaking and associated Technical

Support Document (TSD) for further details.

Such States were also required to submit contingency measures by

November 15, 1993 (see 57 FR 13543). The Governor of Montana submitted

revisions to the SIP for Libby on March 15, 1995, to address this

requirement.

In addition, on May 13, 1996, the Governor of Montana submitted

revisions to the Lincoln County open burning rules and other minor

revisions for approval into the SIP.

II. This Action

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

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

A. Analysis Requirements for State Submissions

1. Procedural Background

The Act requires States to observe certain procedural requirements

in developing implementation plans and plan revisions for submission to

EPA. [See sections 110(a)(2) and 110(l) of the Act.] EPA also must

determine whether a submittal is complete and therefore warrants

further EPA review and action [see section 110(k)(1) of the Act and 57

FR 13565]. The EPA's completeness criteria for SIP submittals are set

out at 40 CFR part 51, appendix V.

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

adequate notice, held public hearings on December 16, 1994 to consider

the Libby PM10 contingency measures and on February 1, 1996 to

consider the revisions to the Lincoln County open burning rules and

other minor revisions. Following the hearings, the Montana Board of

Health and Environmental Sciences adopted the Libby PM10

contingency measures and the revisions to the Lincoln County open

burning rules. The SIP revisions were formally submitted to EPA for

approval on March 15, 1995 and on May 13, 1996, respectively.

The SIP revisions were reviewed by EPA to determine completeness

shortly after their submittal, in accordance with the completeness

criteria referenced above. The submittals were found to be complete,

and letters dated April 21, 1995 and July 3, 1996 were forwarded to the

Governor indicating the completeness of the submittals and the next

steps to be taken.

2. PM10 Contingency Measures

The Clean Air Act requires States containing PM10

nonattainment areas to adopt contingency measures that will take effect

without further action by the State or EPA upon a determination by EPA

that an area failed to make reasonable further progress (RFP) or to

timely attain the applicable NAAQS, as described in section 172(c)(9).

See generally 57 FR 13510-13512 and 13543-13544. Pursuant to section

172(b), the Administrator has established a schedule providing that

States containing initial moderate PM10 nonattainment areas shall

submit SIP revisions containing contingency measures no later than

November 15, 1993. (See 57 FR 13543, n. 3.)

The General Preamble further explains that contingency measures for

PM10 should consist of other available control measures, beyond

those necessary to meet the core moderate area control requirement to

implement reasonably available control measures (see sections 172(c)(1)

and 189(a)(1)(C) of the Act). Based on the statutory structure, EPA

believes that contingency measures must, at a minimum, provide for

continued progress toward the attainment goal during the interim period

between the determination that the SIP has failed to achieve RFP or

provide for timely attainment of the NAAQS and additional formal air

quality planning following the determination (57 FR 13511).

Section 172(c)(9) of the Act specifies that contingency measures

shall ``take effect * * * without further action by the State or the

[EPA] Administrator.'' EPA has interpreted this requirement (in the

General Preamble at 57 FR 13512) to mean that no further rulemaking

activities by the State or EPA would be needed to implement the

contingency measures. In general, EPA expects all actions needed to

effect full implementation of the measures to occur within 60 days

after EPA notifies the State of its failure to attain the standard or

make RFP. EPA recognizes that certain actions, such as notification of

sources, modification of permits, etc., may be needed before some

measures could be implemented. However, States must show that their

contingency measures can be implemented with minimal further

administrative action on their part and with no additional rulemaking

action such as public hearing or legislative review.

The provisions for selection and implementation of contingency

measures for the Libby moderate PM10 nonattainment are in Section

75.1.103 of the Lincoln County Air Pollution Control Program. The

County and State have targeted three sources of emissions for potential

implementation of contingency measures: residential wood combustion,

re-entrained road dust, and industry emissions. The County rule

provides that, within 60 days of notification by the State or EPA that

the Libby moderate PM10 nonattainment

[[Page 51016]]

area has failed to attain the PM10 NAAQS or to make RFP, one or

more of three measures will be implemented depending on which source(s)

of emissions is determined to be the significant contributor(s) to the

problem. The County rule further provides that, if initially no source

is determined to be the significant contributor, a comprehensive

review, including chemical and microscopic analysis of exposed

PM10 filters, will be conducted by the County and the State to

determine the significant contributor. In the meantime, the County rule

requires that at least one of the three available contingency measures

be implemented on an interim basis. This interim contingency measure

will remain in effect until the significant source is identified and a

permanent contingency measure has been implemented.

The specific contingency measures adopted for the Libby moderate

PM10 nonattainment area and their projected effectiveness are as

follows:

a. Residential Wood Burning Contingency Measure

Section 75.1.206(3) of the local regulations contains the

residential wood burning contingency measure. The County rule provides

for early implementation of this contingency measure if needed, which

is acceptable. If this measure is implemented, the County regulation

provides that:

No solid fuel burning device shall be operated within the Libby Air

Pollution Control District between October 1 and March 31 unless it has

been permitted by the [Lincoln County Health] Department as a Class I,

Class II, Low Income Exemption or Sole Source device or is operating on

a validated Temporary Emergency Heating Authorization Permit.

This contingency measure goes beyond the existing control measure,

which limits the use of these types of solid fuel burning devices only

when an alert is called by the County (i.e., when PM10 levels

exceed 100 g/m\3\ and conditions indicate that PM10

levels will remain above 100 g/m\3\).

If the residential wood burning contingency measure is implemented

in the Libby nonattainment area, the State estimates that the control

efficiency of the wood burning measures will be 57% in the 24-hour

attainment demonstration (an increase of 5% over the control efficiency

of the residential wood burning measures in the original SIP attainment

demonstration). The State also estimates that the annual control

efficiency of the wood burning measures would be 54% (an increase of

20% over the annual control efficiency in the original SIP). Total

reduction from the contingency measure is calculated to be 256 pounds

of PM10 reduced per day more than without the contingency measure,

and 19.4 tons more per year.

b. Re-entrained Road Dust Contingency Measure

Section 75.1.303(3) of the County regulations contains the re-

entrained road dust contingency measure. The County rule provides for

early implementation of this contingency measure if needed, which is

acceptable. If this measure is implemented, the following changes to

the existing road dust control plan (which has been approved as part of

the Libby PM10 SIP) become effective:

(1) The Area of Road Sanding and Sweeping will be extended to the

boundaries of the Air Pollution Control District. Thus, the prioritized

street sweeping and flushing schedule will be expanded to apply to all

public roadways within the Road Sanding and Sweeping District;

(2) The use of liquid de-icing agents (which was not previously

required) will be mandatory on all roads and parking lots within the

expanded Road Sanding and Sweeping District. Use of sanding materials

will be prohibited except in emergency situations; and

(3) Any sanding materials used in an emergency situation must meet

the specifications identified in Section 75.1.303(1) of the County

regulation.

The City of Libby and the Department of Transportation have installed

tanks and converted equipment for the use of a liquid de-icer instead

of sanding material.

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

the State estimates that the control efficiency of the re-entrained

road dust measures will be 90% in the 24-hour attainment demonstration

(an increase of 42% over the control efficiency of the re-entrained

road dust measures in the original SIP attainment demonstration). The

State also estimates that the annual control efficiency of the re-

entrained road dust contingency measure will be 71% (an increase of 33%

over the original SIP attainment demonstration). Total reduction from

the contingency measure is calculated to be 7421 pounds of PM10

per day and 403 tons of PM10 per year than without the contingency

measure.

c. Stimson Lumber Company Contingency Measure

Section 75.1.103(2)(c) of the County regulation states that, if

industrial facility emissions are determined to be one of the

significant contributors to PM10 exceedances in the Libby

PM10 nonattainment area, contingency measures reducing the

industrial facility's emissions shall be initiated by the State.

Implementation of this contingency measure was retained by the State

because the authority to regulate sources governed by the Montana Clean

Air Act (MCA), Title 75, Chapter 2, is not delegable to the local

level. The requirements of this contingency measure are contained in

the December 16, 1994 Board Order and Stipulation between Stimson

Lumber Company and the State. The contingency measure consists of

additional controls on fugitive dust sources.

The existing fugitive dust requirements in the permit include:

chemical dust suppressant on the major haul routes to maintain

compliance with the 20% opacity limitation (at least annually), and

water sprays used as necessary to control dust emissions on active

areas of the log yard. The contingency measures in the stipulation add

the following requirements:

(1) The facility entrance and Plywood Plant access road shall be

surfaced with either asphalt, concrete, or chip seal from Highway 2 to

the Plywood Plant. Sweeping and flushing shall be conducted, as

necessary, to maintain compliance with a 5% opacity limitation but not

less than twice annually, with one application during the months of

April-June and one application during the months of September-November.

(2) The chip sealed portions of the Plywood Plant access road shall

consist of a double layer of oil base and chips which shall be watered,

as necessary, to maintain compliance with a 5% opacity limitation.

These portions shall also be maintained to avoid deterioration by

evaluating the chip seal for cracking at a minimum of every 2 years,

and by applying a crack sealer (e.g., rubberized asphalt) as needed. A

thorough evaluation and assessment of the need to reseal the roadway

shall be conducted no less than every 5 years.

(3) Chemical dust suppressant shall be applied to all remaining

active unpaved areas within the facility as necessary to maintain

compliance with the 5% opacity limitation, but not less than twice

annually with one application during the months of April-June and one

application during the months of September-November.

(4) The facility shall maintain a written record of all implemented

contingency measures, which shall be made available to the Montana

[[Page 51017]]

Department of Environmental Quality upon request.

The stipulation provides that this contingency plan will become

effective within 60 days after notification to the company and without

further negotiation.

The State's March 15, 1995 SIP submittal did not contain an

analysis of the effectiveness of the Stimson Lumber Company contingency

measures. While this contingency measure specifically controls fugitive

dust emissions in the log yard area and associated roads of Stimson

Lumber Company, the main problem the State intended to address with

these measures was the amount of mud and dirt carried out onto the

public roads around the Plywood Plant by vehicles leaving the facility.

However, the amount of PM10 reductions due to a reduction in mud

and dirt carryout from Stimson Lumber Company are not readily

quantifiable. The State did not calculate the emissions reductions due

to these fugitive dust contingency measures expected on the Stimson

Lumber Company property itself because they believed the calculations

would not accurately reflect the overall effectiveness of this

contingency measure. EPA agrees with the State that the Stimson Lumber

Company contingency measures will help to reduce mud and dirt carryout

onto the public roads and, consequently, will reduce re-entrained road

dust emissions, as well as reducing fugitive dust emissions emitted

from the Stimson Lumber Company property. Thus, this contingency

measure, if implemented, will provide for additional emissions

reductions in the Libby PM10 nonattainment area.

EPA believes the Libby contingency measures are approvable. The

control measures implemented in the PM10 SIP are projected to

achieve more emissions reductions than needed to demonstrate attainment

of the PM10 NAAQS, as indicated by the State's predicted 24-hour

attainment concentration of 135.9 g/m\3\. Since the 24-hour

PM10 NAAQS is 150 g/m\3\, this established safety margin

further supports the reasonableness of these contingency measures.

3. Revisions to Lincoln County's Open Burning Regulations

The City of Libby and Lincoln County revised the open burning rules

to address newly adopted provisions to the State's open burning rules.

Specifically, the Lincoln County open burning rules were revised to add

new provisions addressing open burning of Christmas tree waste, for

commercial film or video productions, and for firefighter training. In

addition, the County rules were revised to add additional requirements

for the issuance of conditional open burning permits, such as providing

public notice and opportunity for public hearing. The County also added

a provision stating that it could only issue a conditional open burning

permit if emissions from the burn would not endanger public health or

cause or contribute to a violation of the NAAQS.

The County rules were also revised to make other minor

administrative changes to reflect the reorganization of the Montana

Department of Environmental Quality (formerly Montana Department of

Health and Environmental Sciences).

EPA believes the revisions to the County's rules submitted May 13,

1996 are consistent with the Act and will help to protect the PM10

NAAQS in the Libby area. Therefore, EPA finds the revisions to be

approvable.

4. Enforceability Issues

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

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

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

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

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

Radiation, et al. (see 57 FR 13541). SIP provisions also must contain a

program to provide for enforcement of control measures and other

elements in the SIP [see section 110(a)(2)(C)]. EPA believes the Libby

PM10 contingency measures and the local regulations meet the SIP

enforceability requirements. For further details, see the TSD

accompanying this action.

III. Final Action

EPA is approving the PM10 contingency measures and the

recodification of the local regulations submitted for the Libby

moderate PM10 nonattainment area by the Governor of Montana on

March 15, 1995. This submittal adequately addressed the PM10

contingency measure requirements for Libby. In addition, EPA is

approving the revisions to the Lincoln County regulations submitted by

the Governor of Montana on May 13, 1996 regarding open burning and

other minor administrative amendments.

EPA is publishing this action without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

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

Register publication, EPA is proposing to approve the SIP revisions

should adverse or critical comments be filed. Under the procedures

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

action will be effective November 29, 1996 unless, by October 30, 1996,

adverse or critical comments are received.

If EPA receives such comments, this action will be withdrawn before

the effective date by publishing a subsequent notice that will withdraw

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

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

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

Any parties interested in commenting on this action should do so at

this time. If no such comments are received, the public is advised that

this action will be effective on November 29, 1996.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

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

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

IV. Administrative Requirements

A. Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

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

must prepare a regulatory flexibility analysis assessing the impact of

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

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

significant economic impact on a substantial number of small entities.

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

enterprises, and government entities with jurisdiction over populations

of less than 50,000.

SIP approvals under section 110 and subchapter I, part D of the

Clean Air Act do not create any new requirements but simply approve

requirements that the State is already imposing. Therefore, because the

Federal SIP approval does not impose any new requirements, the

[[Page 51018]]

Administrator certifies that it does not have a significant impact on

any small entities affected. Moreover, due to the nature of the

Federal-state relationship under the Act, preparation of a flexibility

analysis would constitute Federal inquiry into the economic

reasonableness of state action. The Act forbids EPA to base its actions

concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427

U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated costs of $100

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

aggregate, or to the private sector. This Federal action approves pre-

existing requirements under state or local law, and imposes no new

Federal requirements. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, result from this

action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives, and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

E. Petitions for Judicial Review

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

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

of Appeals for the appropriate circuit by November 29, 1996. Filing a

petition for reconsideration by the Administrator of this final rule

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

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

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

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

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

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Particulate matter, Reporting

and recordkeeping requirements.

Dated: August 29, 1996.

Patricia D. Hull,

Acting Regional Administrator.

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

as follows:

PART 52--[AMENDED]

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

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

Subpart BB--Montana

2. Section 52.1370 is amended by adding paragraph (c)(44) to read

as follows:

Sec. 52.1370 Identification of plan.

* * * * *

(c) * * *

(44) The Governor of Montana submitted PM10 contingency

measures and a recodification of the local regulations for Libby,

Montana in a letter dated March 15, 1995. In addition, the Governor of

Montana submitted revisions to the local open burning regulations and

other minor administrative amendments on May 13, 1996.

(i) Incorporation by reference.

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

Health and Environmental Sciences adopting stipulation of the Montana

Department of Health and Environmental Sciences and Stimson Lumber

Company.

(B) Board order issued December 16, 1994 by the Montana Board of

Health and Environmental Sciences adopting the PM10 contingency

measures as part of the Libby air pollution control program.

(C) Board order issued on February 1, 1996 by the Montana Board of

Environmental Review approving amendments to the Libby Air Pollution

Control Program.

(D) Lincoln Board of Commissioners Resolution No. 377, signed

September 27, 1995, and Libby City Council Ordinance No. 1507, signed

November 20, 1995, adopting revisions to the Lincoln County Air

Pollution Control Program, Sections 75.1.103 through 75.1.719.

(E) Lincoln County Air Pollution Control Program, Sections 75.1.101

through 75.1.719, effective December 21, 1995.

[FR Doc. 96-24532 Filed 9-27-96; 8:45 am]

BILLING CODE 6560-50-P