Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Environmental Protection Agency

          - 40 CFR Part 52
          - [EPA-R08-OAR-2006-0952; FRL-9246-4]

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Final rule.

# SUMMARY:

                        EPA is approving the State Implementation Plan (SIP) revision submitted by the State of Montana on March 26, 2008. Montana submitted this SIP revision to meet Clean Air Act requirements for attaining the 1997 annual fine Particulate Matter (PM2.5) national ambient air quality standard (NAAQS) for the Libby nonattainment area. The plan revision, herein called an “attainment plan,” includes an attainment demonstration, an analysis of Reasonably Available Control Technology and Reasonably Available Control Measures (RACT/RACM), base-year and projection year emission inventories, and contingency measures. The requirement for a Reasonable Further Progress (RFP) plan is satisfied because Montana projected that attainment with the 1997 annual PM2.5                         NAAQS will occur in the Libby nonattainment area by April 2010. In addition, EPA is also approving revisions to the Lincoln County Air Pollution Control Program submitted by Montana on June 26, 2006, for inclusion into Libby's attainment plan for purposes of the 1987 PM10                         NAAQS.                               ( print page 14585)                            This submittal contains provisions, including contingency measures, for controlling both PM10                         and PM2.5                         emissions from woodstoves, road dust, and outdoor burning. Finally, EPA is finding on-road directly emitted PM2.5                         and oxides of nitrogen (NOX) in the Libby, Montana nonattainment area insignificant for regional transportation conformity purposes. As a result of this finding the Libby, Montana nonattainment area will not have to perform a regional emissions analysis for either direct PM2.5                         or NOX                         as part of future conformity determinations for the 1997 annual PM2.5                         NAAQS.                    

# DATES:

*Effective date:*                         This final rule is effective April 18, 2011.                    

# ADDRESSES:

                        EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2006-0952. All documents in the docket are listed in the                         *http://www.regulations.gov*                         index. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in                         *http://www.regulations.gov*                         or in hard copy at the Air Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop St., Denver, Colorado 80202-1129. EPA requests that, if at all possible, you contact the individual listed in                         **FOR FURTHER INFORMATION CONTACT**                         to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays.                    

# FOR FURTHER INFORMATION CONTACT:

                        Crystal Freeman, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129,                         *Phone:*                         (303) 312-6602,                         *Fax:*                         (303) 312-6064,                         *freeman.crystal@epa.gov.*

# SUPPLEMENTARY INFORMATION:

## 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 initials                     *PM**2.5*                     mean or refer to particulate matter with an aerodynamic diameter of less than 2.5 micrometers.                

                    (v) The initials                     *PM**10*                     mean or refer to particulate matter with an aerodynamic diameter of less than 10 micrometers.                

                    (vi) The word                     *State*                     or                     *Montana*                     refers to the State of Montana unless the context indicates otherwise.                

                    (vii) The initials                     *NAAQS*                     mean or refer to National Ambient Air Quality Standards.                

## Table of Contents

I. Background

II. Public Comment

III. EPA Final Action

IV. Statutory and Executive Order Reviews 

## I. Background

                    On July 18, 1997 (62 FR 38652), EPA established the first PM2.5                     NAAQS, including annual standards of 15.0 μg/m3                     based on a 3-year average of annual mean PM2.5                     concentrations, and 24-hour (or daily) standards of 65 μg/m3                     based on a 3-year average of the 98th percentile of 24-hour concentrations. EPA designated the Libby area “nonattainment” for the 1997 annual PM2.5                     NAAQS under section 107(d)(1) of the CAA on April 5, 2005 (70 FR 944, 986;                     *see*                     also 74 FR 58688, 58744-45). The specific geographic boundaries of this nonattainment area appear in 40 CFR 81.327.                

                    On April 25, 2007, EPA issued the Clean Air Fine Particle Implementation Rule for the 1997 PM2.5                     NAAQS (72 FR 20586). The implementation rule describes the CAA framework and requirements for developing PM2.5                     attainment plans. Among other things, an attainment plan must include a demonstration that a nonattainment area will meet the applicable NAAQS within the timeframe provided in the statute. It must also include supporting technical analyses and descriptions of all relevant adopted federal, state, and local regulations and control measures that have been implemented by the proposed attainment date. For the 1997 PM2.5                     NAAQS, an attainment plan must show that a nonattainment area will attain the standard as expeditiously as practicable but within five years of designation (April 2010), or within up to ten years of designation (April 2015) if the EPA Administrator extends an area's attainment date by 1-5 years based upon the severity of the nonattainment problem or the feasibility of implementing control measures.                

                    For each nonattainment area, the state must demonstrate that it has adopted all Reasonably Available Control Technology (RACT) and Reasonably Available Control Measures (RACM) needed to show that the area will attain the PM2.5                     standards as expeditiously as practicable. Any measures that are necessary to meet these requirements which are not already either federally promulgated or part of the state's SIP must be submitted in enforceable form as part of a state's attainment plan. The implementation rule provides recommendations (including specific measures for certain source categories) that states should consider in developing RACT/RACM. The implementation rule also addresses other required elements of a state's attainment plan, including emission inventories, the PM2.5                     precursors that must be addressed in the plan, contingency measures, and motor vehicle emissions budgets used for transportation conformity purposes.                

                    On March 25, 2008, the Montana Board of Environmental Review (MBER) submitted revisions to meet the new attainment plan requirements for the Libby PM2.5                     nonattainment area. On March 23, 2006, the MBER had previously submitted revisions to the existing PM10                     SIP plan for Lincoln County (the county containing Libby). EPA elected to act on both of these revisions simultaneously. On September 14, 2010 we proposed approval of both the PM2.5                     attainment plan and the PM10                     SIP revisions (75 FR 55713).                

                    The Libby attainment plan provided a demonstration that the 1997 annual PM2.5                     NAAQS would be met by April 2010 through the implementation of the revisions to the Lincoln County Air Pollution Control Program (Program) summarized below. Among other things, the Libby attainment plan includes an emissions inventory (EI), a woodstove air pollution control calculation, and a technical analysis showing that the emissions of PM2.5                     will be reduced sufficiently to meet the NAAQS.                

                    The 2006 revisions to the PM10                     SIP are also relevant to PM2.5                     for the Libby nonattainment area. Several provisions are included to regulate solid fuel burning devices (such as woodstoves) and to require owners and operators of these devices to obtain operating permits. Additionally, the revisions allow for air pollution alerts if either PM10                     or PM2.5                     concentrations averaged over a 4-hour period exceed a level 20 percent below any federal or state particulate matter standard. Provisions are also included for penalties for non-compliance and for contingency measures that are triggered by an exceedance of the PM2.5                     NAAQS. Additionally, revisions were made for open and outdoor burning, including more stringent limits on the time periods for open burning activities.                          ( print page 14586)    

                    The bases for EPA's approval of both the attainment plan for the 1997 annual PM2.5                     NAAQS for the Libby area and for the revisions to the existing PM10                     SIP plan for Lincoln County, including EPA's analysis and findings, are explained in much more detail in the proposed rulemaking (75 FR 55713). Additional technical support documents are available at                     *www.regulations.gov,*                     Docket No. EPA-R08-OAR-2006-0952.                

## II. Public Comment

We received no public comments on the proposed approvals.

## III. EPA Final Action

                    EPA is approving two separate Montana SIP submittals. First, EPA is approving the attainment plan for the 1997 PM2.5                     NAAQS for the Libby area submitted by Montana on March 26, 2008. Second, EPA is approving the PM10                     SIP revisions to the Lincoln County Air Pollution Control Program for Lincoln County submitted by Montana on June 26, 2006. EPA has determined that the PM2.5                     attainment plan and PM10                     SIP revisions meet applicable requirements of the Clean Air Act, including (for the PM2.5                     attainment plan) the Clean Air Fine Particle Implementation Rule issued by EPA on April 25, 2007 (72 FR 20586) and (for the PM10                     SIP revisions) other statutory requirements including section 110(l). In particular, EPA has determined that Montana's PM2.5                     attainment plan for the Libby area includes the following acceptable elements: An attainment demonstration, an analysis of RACT/RACM and adoption of selected control measures, base-year and projection-year emission inventories, and contingency measures. Finally, EPA is finding on-road directly emitted PM2.5                     and NOX                     in the Libby, Montana nonattainment area insignificant for regional transportation conformity purposes.                

                    In accordance with section 172(c) of the CAA and the implementation rule, the attainment plan submitted by Montana for the Libby area included: (1) Emission inventories for the plan's base year (in this case, 2005) and projection year (2010); and (2) an attainment demonstration consisting of: (a) Technical analyses that locate, identify, and quantify sources of emissions contributing to violations of the annual PM2.5                     NAAQS; (b) a determination of which PM2.5                     precursors should be controlled in this area for purposes of expeditious attainment; (c) analyses of future-year emission reductions and air quality improvements expected to result from national and local programs, and from new measures to meet requirements for RACT/RACM; (d) adopted emission reduction measures; and (e) contingency measures.                

                    With respect to the pollutants to control in the plan, the State evaluated, based on its emission inventories and by source category, sources of direct PM2.5, SO2                     and NOX                     for RACT/RACM control measures. The State's evaluation of sources of SO2                     and NOX                     resulted in their conclusion that no additional controls for those precursors are necessary to attain the 1997 PM2.5                     NAAQS expeditiously based on the absence of stationary sources or area sources that can be cost effectively or reasonably controlled for these precursors in this area. The overwhelmingly predominant contributor to the PM2.5                     nonattainment problem in the Libby area was area sources of direct PM2.5, and in particular emissions from wood burning devices and open burning. The State therefore adopted control measures it determined to be RACM for direct PM2.5                     from these area source categories. EPA has reviewed Montana's RACT/RACM analysis and has determined that the state reasonably identified potential control measures and reasonably selected and adopted appropriate measures for RACT/RACM for the Libby area. In addition, the state used a proportional model to demonstrate attainment in 2010 resulting from these measures, and adopted contingency measures triggered by any future exceedance of the 1997 PM2.5                     NAAQS.                

                    Finally, transportation conformity is required under CAA section 176(c) to ensure that transportation plans, transportation improvement programs (TIPs) and federally supported highway and transit projects are consistent with (“conform to”) the state air quality implementation plan. Transportation conformity applies to areas that are designated nonattainment, and to those areas redesignated to attainment after 1990 with a CAA section 175A maintenance plan (“maintenance areas”) for transportation-related criteria pollutants: Carbon monoxide (CO), NOX                     and particulate matter (PM2.5                     and PM10).                

EPA's transportation conformity rule (40 CFR parts 51 and 93) establishes the criteria and procedures for determining whether transportation activities conform to the SIP. One requirement of the rule is that transportation plans, TIPs, and projects must satisfy a regional emissions analysis for the relevant pollutants and precursors (40 CFR 93.118, 119). However, section 93.109(m) states that an area is not required to satisfy a regional emissions analysis for a pollutant or precursor if EPA finds that the SIP demonstrates that motor vehicle emissions of that pollutant or precursor are an insignificant contributor to the area's air quality problem.

                    In this action, EPA finds that regional emissions from motor vehicles of PM2.5                     and NOX                     in the Libby PM2.5                     nonattainment area are an insignificant contributor to the Libby area's PM2.5                     air quality problem. In making this insignificance finding, EPA evaluated the provisions of 40 CFR 93.109(m) against the relevant information contained in the SIP attainment plan, the SIP revision's associated technical support document (TSD), and additional information as developed by EPA. We evaluated the following factors in determining whether on-road direct PM2.5                     and NOX                     emissions are insignificant contributors to the area's PM2.5                     air quality problem; (1) the percentage of motor vehicle emissions in the context of the total SIP inventory; (2) the current state of air quality as determined by monitoring data for that NAAQS; (3) the absence of SIP motor vehicle control measures; and (4) historical trends and future projections of the growth of motor vehicle emissions. Detailed information regarding our evaluations of these factors and our conclusions are provided in our September 14, 2010 proposed rulemaking and will not be repeated here. EPA did not receive any public comments on the proposed insignificance finding. Please refer to our September 14, 2010 proposed rulemaking (75 FR 55713) and additional technical support documents which are available at                     *http://www.regulations.gov,*                     Docket No. EPA-R08-OAR-2006-0952.                

                    Based on our evaluations and conclusions, as presented in our proposed rulemaking action (                    *see*75 FR 55713, September 14, 2010), EPA is finding that regional motor vehicle emissions of PM2.5                     and NOX                     are insignificant contributors to Libby's PM2.5                     nonattainment problem. With our finding, PM2.5                     and NOX                     motor vehicle emissions budgets (MVEB) are not required to be established and a regional emissions analysis is not required for either PM2.5                     or NOX                     in any future conformity determination in Libby. Please note, however, that PM2.5                     hot-spot analyses will be required for individual projects, if such an analysis is required in the future for transportation conformity purposes.                

## IV. Statutory and Executive Order Reviews

                    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and                           ( print page 14587)                        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 pre-existing 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. 104-4).                

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. 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. 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 May 16, 2011. 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 52

      - Environmental protection
      - Air pollution control
      - Incorporation by reference
      - Intergovernmental relations
      - Oxides of nitrogen
      - Particulate matter
      - Reporting and recordkeeping requirements

Authority:42 U.S.C. 7401*et seq*.                    

Dated: December 20, 2010.

James B. Martin,

Regional Administrator, Region 8.

# 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 and reserving paragraphs (c)(69) and (c)(70), and by adding paragraph (c)(71) to read as follows: 

§ 52.1370 

* * * * *

(c) * * *

(71) The Governor of Montana submitted revisions, reordering and renumbering to the Libby County Air Pollution Control Program in a letter dated June 26, 2006. The revised Lincoln County regulations focus on woodstove emissions, road dust, and outdoor burning emissions.

(i) Incorporation by reference.

(A) Before the Board of Environmental Review of the State of Montana order issued on March 23, 2006, by the Montana Board of Environmental Review approving amendments to the Libby Air Pollution Control Program.

(B) Libby City Council Resolution No. 1660 signed February 27, 2006 and Lincoln County Board of Commissioners Resolution No. 725 signed February 27, 2006, adopting revisions, reordering and renumbering to the Lincoln County Air Pollution Control Program, Health and Environment Regulations, Chapter 1—Control on Air Pollution, Subchapter 1—General Provisions; Subchapter 2—Solid Fuel Burning Device Regulations; Subchapter 3—Dust Control Regulations; Subchapter 4—Outdoor Burning Regulations; as revised on February 27, 2006.

(ii) Additional Material.

(A) Stipulation signed October 7, 1991, between the Montana Department of Health and Environmental Sciences (MDHES), the County of Lincoln and the City of Libby, which delineates responsibilities and authorities between the MDHES, Lincoln County and Libby.

[FR Doc. 2011-5969 Filed 3-16-11; 8:45 am]

BILLING CODE 6560-50-P