[Federal Register Volume 65, Number 114 (Tuesday, June 13, 2000)]
[Rules and Regulations]
[Pages 37049-37052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14768]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[MT-001a; FRL-6714-4]
Clean Air Act Full Approval of Operating Permit Program; State of
Montana
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is promulgating full approval of the operating permit
program submitted by the State of Montana. Montana's operating permit
program was submitted for the purpose of meeting the federal Clean Air
Act (Act) directive that states develop, and submit to EPA, programs
for issuing operating permits to all major stationary sources and to
certain other sources within the states' jurisdiction.
DATES: This direct final rule is effective on August 14, 2000 without
further notice, unless EPA receives adverse comment by July 13, 2000.
If adverse comment is received, EPA will publish a timely withdrawal of
the direct final rule in the Federal Register and inform the public
that the rule will not take effect.
ADDRESSES: Written comments may be mailed to Richard R. Long, Director,
Air and Radiation Program, Mail Code 8P-AR, Environmental Protection
Agency (EPA), Region VIII, 999 18th Street, Suite 500, Denver, Colorado
80202-2466. Copies of the documents relevant to this action are
available for public inspection during normal business hours at the
U.S. Environmental Protection Agency, Air and Radiation Program, Region
VIII, 999 18th Street, Suite 500, Denver, Colorado, 80202-2466 and are
also available during normal business hours at the Montana Department
of Environmental Quality, 1520 East 6th Avenue, P.O. Box 200901,
Helena, Montana 59620-0901.
FOR FURTHER INFORMATION CONTACT: Patricia Reisbeck, 8P-AR, U.S.
Environmental Protection Agency, Region 8, 999 18th Street, Denver,
Colorado 80202-2466, (303) 312-6435.
SUPPLEMENTARY INFORMATION:
I. Background
As required under Title V of the Clean Air Act (``the Act'') as
amended (42 U.S.C. 7401 et seq.), EPA has promulgated rules that define
the minimum elements of an approvable state operating permit program
and the corresponding standards and procedures by which EPA will
approve, oversee, and withdraw approval of state operating permit
programs (see 57 FR 32250 (July 21, 1992)). These rules are codified at
40 Code of Federal Regulations (CFR) part 70 (part 70). Title V directs
states to develop, and submit to EPA, programs for issuing operating
permits to all major stationary sources and to certain other sources.
The Act directs states to develop and submit operating permit
programs to EPA by November 15, 1993, and requires that EPA act to
approve or disapprove each program within 1 year after receiving the
submittal. The EPA's program review occurs pursuant to section 502 of
the Act (42 U.S.C. Sec. 7661a) and the part 70 regulations, which
together outline criteria for approval or disapproval. Where a program
substantially, but not fully, meets the requirements of part 70, EPA
may grant the program interim approval. If EPA has not fully approved a
program by two years after the November 15, 1993 date, or before the
expiration of an interim program approval, it must establish and
implement a federal program. The State of Montana was granted final
interim approval of its program on May 11, 1995 (see 60 FR 25143) and
the program became effective on June 12, 1995. Interim approval of the
Montana program expires on December 1, 2001.
II. Analysis of State Submission
The Governor of Montana submitted an administratively complete
Title V operating permit program for the State of Montana on March 29,
1994. This program, including the operating permit regulations (Title
16, Chapter 8, Sub-Chapter 20, Sections 16.8.2001 through 16.8.2025,
inclusive, of the
[[Page 37050]]
Administrative Rules of Montana (ARM)), substantially met the
requirements of part 70. EPA deemed the program administratively
complete in a letter to the Governor dated May 12, 1994. The program
submittal included a legal opinion from the Attorney General of Montana
stating that the laws of the State provide adequate legal authority to
carry out all aspects of the program, and a description of how the
State would implement the program. The submittal additionally contained
evidence of proper adoption of the program regulations, application and
permit forms, and a permit fee demonstration.
EPA's comments noting deficiencies in the Montana program were sent
to the State in a letter dated October 3, 1994. The deficiencies were
segregated into those that would require corrective action prior to
interim program approval, and those that would require corrective
action prior to full program approval. The State committed to address
the program deficiencies that would require corrective action prior to
interim program approval in a letter dated October 20, 1994. The State
submitted these corrective actions with letters dated March 30, and
April 5, 1995. EPA reviewed these corrective actions and determined
them to be adequate for interim program approval.
On January 15, 1998, Montana amended its operating permit program
to make the corrections identified as necessary in the May 11, 1995
Federal Register notice of final interim approval. These program
amendments, recodified at Title 17, Chapter 8, Sub-Chapter 12, Sections
1201, 1210, and 1213, ARM, were approved and adopted by the Montana
Board of Environmental Review on January 15, 1998. The revised program
regulations adequately addressed the problems identified in the May 11,
1995 Federal Register notice as requiring corrective action prior to
full program approval. The State also submitted evidence of proper
adoption of the revisions to its program regulations and a revised
Attorney General's opinion dated July 31, 1998. The revised program and
a request for full approval were submitted to EPA in a letter from the
Governor of Montana dated February 4, 1999. EPA notified Montana, in a
letter to the Department of Environmental Quality (DEQ) dated April 1,
1999, of two additional changes required for final approval. The DEQ
revised the administrative rules to implement the two requested changes
at Title 17, Chapter 8, Sub-Chapter 12, ARM. These amendments to Sub-
Chapter 12 were approved and adopted by the Board on March 17, 2000. On
April 12, 2000, the Governor of Montana submitted the revised program,
with proof of proper adoption, and requested full approval of its
operating permit program.
Areas in the Montana program that were identified by EPA as
deficient and the State's corrective actions for full program approval
consist of the following:
(1) The definition of administrative permit amendment allowed the
department to exercise discretion in determining whether or not a
change in monitoring or reporting requirements would be as stringent as
current monitoring or reporting requirements. This did not satisfy the
criteria for an administrative permit amendment listed in 40 CFR
70.7(d)(1)(iii), which require that only requirements for more frequent
monitoring or reporting may be processed through an administrative
permit amendment. Correction: The State deleted the problematic section
of the administrative permit amendment definition, Section
17.8.1201(1)(d), ARM.
(2) The definition of administrative permit amendment allowed the
State to determine if other types of permit changes not listed in the
definition of administrative permit amendment could be incorporated
into a permit through the administrative permit amendment process. This
did not meet requirements of 40 CFR 70.7(d)(1)(vi). Correction: The
State modified Section 17.8.1201(1), ARM, part of the administrative
permit amendment definition, to state: ``(e) incorporates any other
type of change which the department and EPA have determined to be
similar to those revisions set forth in (a) through (d) above.''
(3) The definition of ``insignificant emissions unit'' included an
emission threshold of 15 tons per year of any pollutant other than a
hazardous air pollutant. EPA did not consider this to be a reasonable
level at which to exempt emissions units from title V operating permit
requirements. Correction: The State lowered the trigger level of 15
tons per year to 5 tons per year in the definition of ``insignificant
emissions units'' to assure that the term will not encompass activities
that are subject to applicable requirements (see Section
17.8.1201(22)(a)(i), ARM).
(4) The State was required to revise or delete Section
17.8.1201(24)(a)(ii), ARM, so that rules and requirements imposed under
the State Implementation Plan (SIP) would not be included in the
definition of ``non-federally enforceable.'' Correction: The State
originally revised Section 17.8.1201(24)(a)(ii) to exclude only
regulations that are not federally enforceable (not in the SIP). The
State adopted an additional correction to this section on March 17,
2000, which is explained below.
(5) The State was required to include a severability clause in Sub-
Chapter 12 consistent with 40 CFR 70.6(a)(5) of the federal permitting
regulation. Correction: The State revised Section 70.8.1210(2)(l), ARM,
to include a severability clause, which states ``If any provision of a
permit is found to be invalid, all valid parts that are severable from
the invalid part remain in effect. If a provision of a permit is
invalid in 1 or more of its applications, the provision remains in
effect in all valid applications that are severable from the invalid
applications.''
(6) The State was required to provide an Attorney General's opinion
verifying Montana's authority to use any monitoring data to determine
compliance and for direct enforcement or to revise the State's SIP-
approved regulations to provide authority to use any monitoring data to
determine compliance and for direct enforcement. Correction: The
Attorney General's opinion and Section 17.8.1213(2) were amended to
clarify Montana's authority. The revised opinion was submitted with the
Governor's letter, dated February 4, 1999.
(7) The Attorney General's opinion was not clear regarding the
State's authority to terminate permits. The State was required to
provide an Attorney General's interpretation that Montana's statutory
authority extends to ``terminating'' permits. Correction: This was
clarified in the revised Attorney General's opinion.
(8) The State was required to demonstrate to EPA that it had the
ability to make case-by-case MACT determinations pursuant to section
112(j) of the Act. Correction: This was adequately addressed in the
revised Attorney General's opinion.
(9) The State was required to certify its ability to require annual
certifications from part 70 sources regarding proper implementation of
their risk management plans (RMP) and to provide a compliance schedule
for sources that fail to submit the required RMP. Correction: The State
will include a statement listing 40 CFR 68.215(a) as an applicable
requirement in all Title V operating permits.
(10) The State was required to clarify that it has the authority to
terminate or revoke and reissue permits in all circumstances in which
cause to do so exists or amend Section 17.8.1210(2)(a) to eliminate any
provisions that may be construed to limit ``cause'' in an unacceptable
manner. Correction:
[[Page 37051]]
Section 17.8.1210(2)(a) has been revised to include: ``Permits may be
terminated or revoked and reissued for cause. Appropriate `cause' for
permit termination is noncompliance with permit terms or conditions
that is continuing or substantial in nature and scope.''
Two additional corrections, requested in the April 1, 1999 letter
from EPA to the DEQ, are as follows:
(1) The revised definition of ``non-federally enforceable
requirements'' in Section 17.8.1201(24)(a), ARM, included ``(ii) any
term, condition or other requirement contained in any air quality
preconstruction permit issued by the department under this chapter that
is not contained in the Montana State implementation plan approved or
promulgated by the administrator through rulemaking under title I of
the FCAA.'' This was required to be changed or deleted as it implied
that the terms and conditions of a preconstruction permit are not
federally enforceable, unless they are contained in the Montana SIP or
EPA regulation. In fact, every permit issued under a SIP-approved
permit program is federally enforceable, and every term and condition
of the permit is federally enforceable. Correction: The State has
revised Section 17.8.1201(24) to delete this language in the definition
of the phrase ``non-federally enforceable requirements.''
(2) Section 17.8.1225(4), ARM, incorrectly applied the permit
shield to all administrative permit amendments. The permit shield
provided by 40 CFR Part 70 applies only to permit actions that have
gone through public review. Therefore, Section 17.8.1225(4) was
required to be revised to say that the permit shield does not extend to
administrative permit amendments except as allowed by 40 CFR
70.7(d)(4). Correction: The State revised Section 17.8.1225(4) to state
that the permit shield does not apply to administrative permit
amendments.
III. Final Action
In this document, EPA is granting full approval of the Montana part
70 operating permits program for all areas within the State except the
following: any sources of air pollution located in ``Indian Country''
as defined in 18 U.S.C. 1151, including the following Indian
reservations in the State: Northern Cheyenne, Rocky Boys, Blackfeet,
Crow, Flathead, Fort Belknap, and Fort Peck Indian Reservations, or any
other sources of air pollution over which an Indian Tribe has
jurisdiction. See section 301(d)(2)(B) of the Act; see also 63 FR 7254
(February 12, 1998). The term ``Indian Tribe'' is defined under the Act
as ``any Indian tribe, band, nation, or other organized group or
community, including any Alaska Native village, which is federally
recognized as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians.''
See section 302(r) of the Act; see also 58 FR 54364 (Oct. 21, 1993).
The EPA is publishing this rule without prior proposal because the
State is currently implementing its part 70 program and the Agency
views this as a noncontroversial action and anticipates no adverse
comments. However, in the proposed rules section of this Federal
Register publication, EPA is publishing a separate document that will
serve as the proposal to grant full approval of the operating permit
program submitted by the State of Montana should adverse comments be
filed. This rule will be effective August 14, 2000 without further
notice unless the Agency receives adverse comments by July 13, 2000.
If the EPA receives such comments, then EPA will publish a timely
withdrawal in the Federal Register informing the public that the rule
will not take effect. All public comments received will then be
addressed in a subsequent final rule based on the proposed rule. The
EPA will not institute a second comment period on this action. Any
parties interested in commenting on this rule must do so at this time.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866, entitled ``Regulatory Planning and
Review.''
B. Executive Order 13132
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Order 12612 (Federalism) and Executive Order 12875 (Enhancing
the Intergovernmental Partnership). Executive Order 13132 requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by state and local officials in the development of regulatory
policies that have federalism implications.'' ``Policies that have
federalism implications'' is defined in the Executive Order to include
regulations that have ``substantial direct effects on the states, on
the relationship between the national government and the states, or on
the distribution of power and responsibilities among the various levels
of government.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal Government provides the funds necessary to pay the direct
compliance costs incurred by state and local governments, or EPA
consults with state and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts state law unless the
Agency consults with state and local officials early in the process of
developing the proposed regulation.
This final rule will not have substantial direct effects on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
Thus, the requirements of section 6 of the Executive Order do not apply
to this rule.
C. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is
determined to be ``economically significant'' as defined under E.O.
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children, and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
This rule is not subject to E.O. 13045 because it is not an
economically significant regulatory action as defined by E.O. 12866,
and it does not establish a further health or risk-based standard
because it approves state rules which implement a previously
promulgated health or safety-based standard.
D. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal
[[Page 37052]]
governments, or EPA consults with those governments. If EPA complies by
consulting, E.O. 13084 requires EPA to provide to the Office of
Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected
officials and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.'' Today's rule does not significantly or uniquely affect
the communities of Indian tribal governments. This action does not
involve or impose any requirements that affect Indian Tribes.
Accordingly, the requirements of section 3(b) of E.O. 13084 do not
apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
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 small governmental
jurisdictions.
This final rule will not have a significant impact on a substantial
number of small entities because part 70 approvals under section 502 of
the Act do not create any new requirements but simply approve
requirements that the State is already imposing. Therefore, because
this approval does not create any new requirements, I certify that this
action will not have a significant economic impact on a substantial
number of small entities.
F. 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
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
G. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of Congress and to the Comptroller General of the United
States. EPA will submit 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 United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
H. 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 August 14, 2000. 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 may 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 70
Administrative practice and procedure, Air pollution control,
Environmental protection, Intergovernmental relations, Operating
permits, Reporting and recordkeeping requirements.
Dated: June 2, 2000.
Rebecca W. Hanmer,
Acting Regional Administrator, Region VIII.
40 CFR part 70, is amended as follows:
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. In appendix A to part 70 the entry for Montana is amended by
adding paragraph (b) to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Montana
* * * * *
(b) The Montana Department of Environmental Quality submitted an
operating permits program on March 29, 1994; effective on June 12,
1995; revised January 15, 1998, and March 17, 2000; full approval
effective on August 14, 2000.
* * * * *
[FR Doc. 00-14768 Filed 6-12-00; 8:45 am]
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