Clean Air Act Approval and Promulgation of State Implementation Plan for Montana; Revisions to the Montana Air Pollution Control Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MT001-0001a; FRL-5635-6]

Clean Air Act Approval and Promulgation of State Implementation

Plan for Montana; Revisions to the Montana Air Pollution Control

Program

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 Governor of Montana on May 22, 1995. The revisions

being approved in this document include; changes to the State's open

burning rules which, among other things, address deficiencies and add

new rules for the open burning of Christmas tree waste and open burning

for commercial film or video productions; and changes to numerous State

regulations to make minor administrative amendments and to update

incorporation by reference citations. EPA is approving these revisions

because they are consistent with the Clean Air Act (Act).

DATES: This action is effective on December 23, 1996 unless adverse

comments are received by November 22, 1996. 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 80202-2405; Montana

Department of Environmental Quality, 1520 East 6th Avenue, P.O. Box

200901, Helena, Montana 59620-0901; and The Air and Radiation Docket

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

FOR FURTHER INFORMATION CONTACT: Vicki Stamper, 8P2-A, Environmental

Protection Agency, Region VIII, 999 18th Street, Suite 500, Denver,

Colorado, (303) 312-6445.

SUPPLEMENTARY INFORMATION: On May 22, 1995, the Governor of Montana

submitted two SIP submittals which are being acted on in this document.

One submittal included changes to the State's open burning rules. The

second submittal included changes to numerous State regulations to make

minor administrative amendments. This document evaluates the State's

submittals for conformity with the corresponding Federal regulations

and the requirements of the Act.

I. Procedural Analysis of the State's Submissions

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. 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.

The 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, April 16, 1992). 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 under section 110(k)(a)(B) if a completeness

determination is not made by EPA

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within six months after receipt of the submission.

The State of Montana held public hearings on May 20, 1994 for the

revisions to the open burning rules and on September 16, 1994 for the

other revisions to entertain public comment on the SIP revisions, and

the rule revisions were subsequently adopted at the respective public

hearings by the State. These rule revisions were formally submitted to

EPA for approval in the SIP as two separate SIP submittals on May 22,

1995.

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 a letter dated July 27, 1995 was forwarded to the Governor

indicating the completeness of the submittals and the next steps to be

taken in the processing of the SIP submittals.

II. Evaluation of the State's Submittals

A. Revisions to the Open Burning Rules

Numerous revisions were made to the State's open burning provisions

in rules 16.8.1301-1310 of the Administrative Rules of Montana (ARM).

Revisions were made to address EPA's January 2, 1992 disapproval of the

State's previous revisions to its open burning rules (see 57 FR 23-24)

and to add new provisions addressing open burning of Christmas tree

waste and open burning for commercial film or video productions. In

addition, the State made other revisions to its open burning rules to

add public participation requirements for major open burning permits,

to add more specific requirements for open burning for firefighter

training, to add requirements for the issuance of conditional open

burning permits, and to extend the essential agricultural burning

period to be the same as prescribed wildland open burning periods and

add new provisions for these types of open burning.

On January 2, 1992, EPA disapproved the State's previous SIP

revision of its open burning rules because the State had relaxed its

rules by allowing the open burning of creosote-treated railroad ties

(which were previously prohibited from being open-burned), and the

State did not adequately demonstrate that the SIP relaxation would not

adversely impact attainment and/or maintenance of the particulate

matter national ambient air quality standards (NAAQS). In the State's

May 22, 1995 SIP revision, the State reinstated the prohibition on open

burning of creosote-treated railroad ties, thus addressing EPA's

January 2, 1992 disapproval.

EPA's review of the new ARM 16.8.1309 and 16.8.1310, which allow

open burning of Christmas tree waste and open burning for commercial

film or video productions, found these rules to be consistent with

corresponding Federal requirements. The State's rules will only allow

these types of open burning if such burning will not endanger public

health or welfare or cause or contribute to a violation of the NAAQS.

In a May 18, 1994 letter commenting on these regulatory changes,

EPA requested that the State provide documentation that the extension

of the essential agricultural open burning season will not adversely

impact Montana's PM-10 nonattainment areas. The State's response

indicated that the majority of essential agricultural open burning ``is

done in areas sufficiently removed from the PM-10 nonattainment areas''

and that Montana's fall smoke management program, which is also used to

regulated prescribed wildland open burning, will minimize the impact

from smoke during the fall season from essential agricultural open

burning. EPA concurs with the State's response and believes the State's

smoke management plan will help to ensure the NAAQS are met.

EPA has reviewed the other revisions to the State's open burning

rules and believes that the revisions are consistent with the

requirements of the Act. Consequently, EPA is approving the State's

revisions to its open burning regulations in ARM 16.8.1301-1310

submitted on May 22, 1995.

B. Other Minor Administrative Regulatory Revisions

The State's second May 22, 1995 SIP submittal being acted on in

this document contained minor administrative revisions and updated the

incorporation by reference citations for both Federal regulations and

State procedures. EPA has reviewed the revisions and found the

revisions to be consistent with the requirements of the Act. Therefore,

EPA is approving the revisions to ARM 16.8.708, 16.8.946, 16.8.1120,

16.8.1429, 16.8.1702, 16.8.1802, and 16.8.2003 submitted on May 22,

1995.

III. Final Action

EPA is approving the revisions to the Montana SIP submitted by the

State on May 22, 1995, which affect the State's open burning rules and

make other minor administrative changes. Specifically, EPA is approving

revisions to the following sections of the ARM: 16.8.1301-1310, as in

effect on September 9, 1994, and 16.8.708, 16.8.946, 16.8.1120,

16.8.1429, 16.8.1702, 16.8.1802, and 16.8.2003, as in effect on October

28, 1994.

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 December 23, 1996 unless, by November 22,

1996, 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 November 22, 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

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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

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 December 23, 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: September 26, 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)(43) to read

as follows:

Sec. 52.1370 Identification of plan.

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(c) * * *

(43) On May 22, 1995, the Governor of Montana submitted revisions

to the plan, which included revisions to the State's open burning

regulation and other minor administrative revisions.

(i) Incorporation by reference.

(A) Revisions to the Administrative Rules of Montana (ARM),

16.8.1301-1310, effective September 9, 1994; and

(B) Revisions to the ARM, 16.8.708, 16.8.946, 16.8.1120, 16.8.1429,

16.8.1702, 16.8.1802, and 16.8.2003, effective October 28, 1994.

* * * * *

[FR Doc. 96-27006 Filed 10-22-96; 8:45 am]

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