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ENVIRONMENTAL PROTECTION AGENCY
Environmental Protection Agency
CFR Citation: 40 CFR Part 52
EPA ID: [EPA-R08-OAR-2007-0367; FRL-8552-4]
NOTICE: RULES
ACTION: Approval and Promulgation of Air Quality Implementation Plans:
DOCUMENT ACTION: Direct final rule.
SUBJECT CATEGORY: Approval and Promulgation of Air Quality Implementation Plans; Montana; Whitefish PM10 Nonattainment Area Control Plan
DATES: This rule is effective on June 23, 2008 without further notice, unless EPA receives adverse comment by May 27, 2008. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.
DOCUMENT SUMMARY: EPA is taking direct final action approving State
Implementation Plan (SIP) revisions submitted by the Governor of
Montana on June 26, 1997, and June 13, 2000. (Portions of the June 26,
1997 submittal were withdrawn by the Governor of Montana on February 8,
1999). These revisions contain an inventory of emissions for Whitefish
and establish and require continuation of all control measures adopted
and implemented for reductions of particulate aerodynamic diameter less
than or equal to 10 micrometers (PM
SUMMARY: Montana; Whitefish PM10 Nonattainment Area Control Plan,
SUPPLEMENTAL INFORMATION
Table of ContentsI. General Information
II. Summary of SIP Revision
III. Analysis of Requirements to Use Clean Data Areas Approach IV. Final Action
V. Statutory and Executive Order Reviews
Definitions
For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i) The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.
(ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.
(iii) The initials SIP mean or refer to State Implementation Plan.
(iv) The words State or Montana mean the State of Montana, unless the context indicates otherwise.
I. General Information
A. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through http://regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CDROM that you mail to EPA, mark the outside of the disk or CDROM as CBI and then identify electronically within the disk or CDROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments, remember to:
a. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).
b. Follow directionsThe agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
d. Describe any assumptions and provide any technical information and/or data that you used.
e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
f. Provide specific examples to illustrate your concerns, and suggest alternatives.
g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
h. Make sure to submit your comments by the comment period deadline identified.
II. Summary of SIP Revision
A. Background
The Whitefish area was designated nonattainment for PM10 and
classified as moderate under section 107(d)(3) of the Clean Air Act on
October 19, 1993 (see 58 FR 36908 (July 9, 1993), 58 FR 53886 (October
19, 1993), and 40 CFR 81.327 (Flathead County (part)). The Whitefish
designation became effective on November 18, 1993. The air quality
planning requirements for moderate PM10 nonattainment areas are set out
in subparts 1 and 4 of Title I of the Act. Subpart 1 applies to
nonattainment areas generally and subpart 4 applies to PM10
nonattainment areas. At times, subpart 1 and subpart 4 overlap or
conflict. We have attempted to clarify the relationship among these
provisions in guidance entitled the ``General Preamble'' (see 57 FR
13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992)) and, as appropriate, in today's notice.
B. What Requirements Do States Need To Follow in Developing PM10 Nonattainment Area SIPs?
Our ``General Preamble'' describes our preliminary views on how we will
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review SIPs and SIP revisions submitted under Title I of the Act,
including Statesubmitted SIPs for moderate PM10 nonattainment areas
(see generally 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28,
1992)). In this document, we are applying our interpretations considering the specific factual issues presented.
A State containing a moderate PM10 nonattainment area designated after the 1990 Amendments is normally required to submit several provisions within 18 months of the effective date of the designation. These provisions were due for the Whitefish area by May 18, 1995. They include an emissions inventory, control measures, an attainment demonstration, quantitative milestones for reasonable further progress (RFP), and contingency measures. Requirements for the control measures include: provisions to assure that reasonably available control measures (RACM), including reasonably available control technologies (RACT), shall be implemented no later than four years after designation, which was November 18, 1997 for Whitefish. However, under the PM10 clean data areas approach that we are proposing to use here, we are only proposing to require the control measures, the provisions for enforcing those measures, and the emissions inventory for Whitefish.
1. Clean Data Areas Approach
The air quality planning requirements for PM10 nonattainment areas
are set out in subparts 1 and 4 of title I of the Act. EPA has issued a
General Preamble \1\ and Addendum to the General Preamble \2\
describing our preliminary views on how the Agency intends to review
state implementation plans (SIPs) submitted to meet the CAA's
requirements for PM
\2\ ``State Implementation Plans for Serious PM10 Nonattainment
Areas, and Attainment Date Waivers for PM10 Nonattainment Areas
Generally; Addendum to the General Preamble for the Implementation
of Title I of the Clean Air Act Amendments of 1990,'' 59 FR 41998 (August 16, 1994).
In nonattainment areas where monitored data demonstrate that the NAAQS have already been achieved, EPA has determined that certain requirements of part D, subparts 1 and 2 of the Act do not apply. Therefore we do not require certain submissions for an area that has attained the NAAQS. These include reasonable further progress (RFP) requirements, attainment demonstrations, RACM, and contingency measures, because these provisions have the purpose of helping achieve attainment of the NAAQS.
This interpretation of the CAA is known as the Clean Data Policy and is the subject of two EPA memoranda. EPA also finalized the statutory interpretation set forth in the policy in a final rule, 40 CFR 51.918, as part of its ``Final Rule to Implement the 8hour Ozone National Ambient Air Quality StandardPhase 2'' (Phase 2 Final Rule). See discussion in the preamble to the rule at 70 FR 71612, 7164546 (November 29, 2005).
EPA believes that the legal bases set forth in detail in our Phase
2 Final rule, our May 10, 1995 memorandum from John S. Seitz, entitled
``Reasonable Further Progress, Attainment Demonstration, and Related
Requirements for Ozone Nonattainment Areas Meeting the Ozone National
Ambient Air Quality Standard,'' and our December 14, 2004 memorandum
from Stephen D. Page entitled ``Clean Data Policy for the Fine Particle
National Ambient Air Quality Standards'' are equally pertinent to the
interpretation of provisions of subparts 1 and 4 applicable to
PM
If an area meets the following requirements, the state will no
longer be required to develop an attainment demonstration, contingency
measures or a RFP demonstration. The area must meet the following requirements:
(a) The area must be attaining the PM
PM
(d) A PM
III. Analysis of Requirements to Use Clean Data Areas Approach A. Attainment of the PM10 NAAQS
Whether an area has attained the PM
To use the PM
B. Continued Operation of PM10 Monitoring Network
The Montana Department of Environmental Quality (MDEQ) shall
continue to operate its PM
Monitoring in Whitefish for PM
[[Page 22060]]
monitoring station (AQS identification
Moderate PM
The State should identify available control measures to make sure they are reasonable and that they meet the area's attainment needs, (see 57 FR 1354013544). A State may reject an available control measure if it is technologically infeasible or unreasonably expensive. In addition, RACM doesn't require controls on emissions from sources that are insignificant (de minimis) and doesn't require an area to use all available control measures if it demonstrates timely attainment and if using additional controls wouldn't expedite attainment.
Whitefish Control Measures
The Whitefish PM
Rule 701Material To Be Used on Roads and Parking LotsStandards
Rule 701 pertains to the types of sanding material that can be used for sanding roads and parking lots. This rule requires the application of sanding material with a material content passing a number 200 mesh screen to be no more than 4.0 percent oven dry weight and have a durability rating, as defined by the Montana Modified L.A. Abrasion test, of less than or equal to 9.0 percent wear loss.
Rule 702Construction and Demolition Activity
The construction and demolition rule requires owners or operators of such activities to obtain a permit that describes the project and contains a dust control plan that constitutes RACT. RACT is the use of techniques to prevent the emission and/or airborne transport of dust and dirt from the site and includes the application of water or other liquid, limiting access to the site, securing loads, cleaning vehicles, and scheduling projects for optimum meteorological conditions. Rule 703Pavement of Roads Required and Rule 704Pavement of Parking Lots Required
Rule 703 and Rule 704 require a plan and schedule of implementation to improve existing unpaved roads and parking lots by paving, routine application of dust suppressants, or other reasonable control measures, as determined in a compliance plan that must be filed with the Flathead County Health Department. In addition, the paving regulations require new streets, roads, or alleys that are greater than fifty feet in length and have an average projected traffic volume greater than 200 vehicles per day be paved. The rule also requires that new parking lots greater than 5,000 square feet, or with a parking capacity greater than fifteen vehicles, or with a traffic volume of more than fifty vehicles per day be paved.
Rule 705Street Sweeping and Flushing
Rule 705 requires a prioritized street sweeping and flushing program that commences on the first working day after any streets become temporarily or permanently icefree and temperatures are expected to remain above thirtyfive degrees for a 24hour period. Prioritized street sweeping and flushing applies during November through April. Streets with the highest traffic volume are cleaned first. During May through October, street sweeping and flushing occurs on an as needed basis.
Rule 706Clearing of Land Greater than \1/4\ Acre in Size
The owner or operator of any land greater than 0.25 acre in size that has been cleared or excavated is required to use RACT to control dust emissions. In this case, RACT means techniques to prevent the emission or transport of dust and dirt from any disturbed or exposed land. RACT includes, but is not limited to, vegetative cover, synthetic cover, water or chemical stabilization, and installing wind breaks. Rule 707Contingency Plan
Rule 707 provides that in the event EPA provides notification to
the State that the SIP for the Whitefish area failed to timely attain
the PM
D. Emissions Inventory
Section 172(c)(3) of the Act requires that nonattainment plan
provisions include a comprehensive, accurate, current inventory of
actual emissions from all sources of relevant pollutants in the
nonattainment area. MDEQ submitted an emissions inventory for Whitefish
on June 26, 1997, withdrew that inventory on February 28, 1999, and
resubmitted it on June 13, 2000. MDEQ chose January 1, 1993 through
December 31, 1993 as the base year for the emission inventory due to
the occurrence of PM
EPA is proposing to approve the emission inventory for Whitefish
because it is accurate and comprehensive, and consistent with the
requirements of sections 172(c)(3) and 110(a)(2)(K) of the CAA. In
addition to the above requirements for the use of the clean data areas
approach, any requirements that depend solely on designation or
classification, such as new source review (NSR) and RACM/RACT, will
remain in effect. New source review requirements have been approved as
part of the Administrative Rules of Montana, title 17, chapter 8,
subchapters 8 and 9 and were approved as part of the SIP on August 13,
2001 (see 66 FR 42427). (Administrative and clerical changes have been
made to the rule on January 24, 2006 (see 71 FR 3770 and 3776) and July 19, 2006 (see
[[Page 22061]]
71 FR 40922)). New source review requirements that were approved into the SIP will continue to be in effect.
However, the requirements under CAA section 172(c) for developing
attainment demonstrations, RFP demonstrations, and contingency measures
are waived due to the fact that the areas which are eligible under this
approach have already attained the PM
IV. Final Action
EPA is approving State Implementation Plan (SIP) revisions
submitted by the Governor of Montana on June 26, 1997 and June 13,
2000. The June 26, 1997 submittal revises the SIP by adding the
Whitefish PM
EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the Proposed Rules section of today's Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective June 23, 2008 without further notice unless the Agency receives adverse comments by May 27, 2008. If the EPA receives adverse comments, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments 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 must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.
V. Statutory and Executive Order Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a ``significant regulatory action'' and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, ``Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves preexisting requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 1044).
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 ``Protection of Children from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. section 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 the 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. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. section 804(2).
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 June 23, 2008. 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
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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: March 27, 2008.
Carol Rushin,
Acting Regional Administrator, Region 8.
40 CFR part 52 is amended to read as follows:
PART 52[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart BBMontana
2. Section 52.1370 is amended by adding paragraph (c)(66) to read as follows:
Sec. 52.1370 Identification of plan.
* * * * *
(c) * * *
(66) On June 26, 1997, the Governor of Montana submitted the
Whitefish OM
(i) Incorporation by reference.
(A) Sections 15.2.7, 15.12.8, and 15.12.10 of the Whitefish PM
(ii) Additional Material.
(A) Flathead County Air Pollution Control Program as of June 20, 1997.
[FR Doc. E88862 Filed 42308; 8:45 am]
BILLING CODE 656050P
FOR FURTHER INFORMATION CONTACT Laurel Dygowski, EPA Region 8, 1595 Wynkoop, Denver, CO 802021129, (303) 3126144;
dygowski.laurel@epa.gov.
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