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[Federal Register Volume 81, Number 16 (Tuesday, January 26, 2016)]
[Proposed Rules]
[Pages 4225-4239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01403]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2013-0556, FRL-9941-54-Region 8]

Promulgation of State Implementation Plan Revisions; 
Infrastructure Requirements for the 2008 Lead, 2008 Ozone, 2010 
NO2, 2010 SO2, and 2012 PM2.5 National 
Ambient Air Quality Standards; Montana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve elements of State Implementation Plan (SIP) revisions from the 
State of Montana to demonstrate the State meets infrastructure 
requirements of the Clean Air Act (Act or CAA) for the National Ambient 
Air Quality Standards (NAAQS) promulgated for ozone on March 12, 2008, 
lead (Pb) on October 15, 2008, nitrogen dioxide (NO2) on 
January 22, 2010, sulfur dioxide (SO2) on June 2, 2010 and 
fine particulate matter (PM2.5) on December 14, 2012. EPA is 
also proposing to approve 110(a)(2)(D)(ii) for the 1997 and 2006 
PM2.5 NAAQS. EPA is proposing to conditionally approve CAA 
section 110(a)(2)(C) and (J) with regard to PSD and element 3 of 
110(a)(2)(D)(i)(II) for the 2008 ozone, 2008 Pb, 2010 NO2, 
2010 SO2, and 2006 and 2012 PM2.5 NAAQS. EPA is 
proposing to disapprove element 4 of CAA section 110(a)(2)(D)(i)(II) 
for the 2008 ozone, 2010 NO2, 2010 SO2, and 2006 
and 2012 PM2.5 NAAQS. EPA is proposing to approve SIP 
revisions the State submitted to update Montana's PSD program and 
provisions regarding state boards. Section 110(a) of the CAA requires 
that each state submit a SIP for the implementation, maintenance, and 
enforcement of each NAAQS promulgated by EPA.

DATES: Written comments must be received on or before February 25, 
2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2013-0556 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e. on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Abby Fulton, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6563, 
fulton.abby@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

What should I consider as I prepare my comments for EPA?

    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI to EPA through http://www.regulations.gov or email. Clearly 
mark the part or all of the information that you claim to be CBI. For 
CBI information on a disk or CD ROM that you mail to EPA, mark the 
outside of the disk or CD ROM as CBI and then identify electronically 
within the disk or CD ROM 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:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register volume, 
date, and page number);
     Follow directions and organize your comments;
     Explain why you agree or disagree;
     Suggest alternatives and substitute language for your 
requested changes;
     Describe any assumptions and provide any technical 
information and/or data that you used;
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced;
     Provide specific examples to illustrate your concerns, and 
suggest alternatives;
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats; and,
     Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    On March 12, 2008, EPA promulgated a new NAAQS for ozone, revising 
the levels of the primary and secondary 8-hour ozone standards from 
0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436, March 27, 
2008). Subsequently, on October 15, 2008, EPA revised the level of the 
primary and secondary Pb NAAQS from 1.5 micrograms per cubic meter 
([mu]g/m\3\) to 0.15 [mu]g/m\3\ (73 FR 66964, Nov. 12, 2008). On 
January 22, 2010, EPA promulgated a new 1-hour primary NAAQS for 
NO2 at a level of 100 parts per billion (ppb) while

[[Page 4226]]

retaining the annual standard of 53 ppb. The 2010 NO2 NAAQS 
is expressed as the three-year average of the 98th percentile of the 
annual distribution of daily maximum 1-hour average concentrations. The 
secondary NO2 NAAQS remains unchanged at 53 ppb (75 FR 6474, 
Feb. 9, 2010). On June 2, 2010, the EPA promulgated a revised primary 
SO2 standard at 75 ppb, based on a three-year average of the 
annual 99th percentile of one-hour daily maximum concentrations (75 FR 
35520, June 22, 2010). Finally, on December 14, 2012, the EPA 
promulgated a revised annual PM2.5 standard by lowering the 
level to 12.0 [mu]g/m\3\ and retaining the 24-hour PM2.5 
standard at a level of 35 [mu]g/m\3\ (78 FR 3086, Jan. 15, 2013).
    EPA promulgated a revised NAAQS for PM2.5 on October 17, 
2006, tightening the level of the 24-hour standard to 35 [micro]g/m\3\ 
and retaining the level of the annual PM2.5 standard at 15 
[micro]g/m\3\. EPA approved the CAA section 110(a)(2)(D)(i)(I) portion 
of Montana's infrastructure SIP for this NAAQS on July 30, 2013 (78 FR 
45869). As discussed below, CAA section 110(a)(2)(D)(i)(I) covers 
elements 1 and 2 of ``interstate transport.'' In this proposed action, 
EPA is addressing only interstate transport elements 3 and 4 from CAA 
section 110(a)(2)(D)(i)(II) for the 2006 PM2.5, 2008 ozone, 
2010 SO2 and 2012 PM2.5 NAAQS. We are not 
addressing elements 1 and 2 for the 2008 ozone, 2010 SO2 and 
2012 PM2.5 NAAQS in this action. These elements will be 
addressed in a later rulemaking action.\1\
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    \1\ EPA proposed approval of elements 1 and 2 of Montana's SIP 
for the 2008 ozone NAAQS in a notice published November 23, 2015 (80 
FR 72937).
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    Under sections 110(a)(1) and (2) of the CAA, states are required to 
submit infrastructure SIPs to ensure their SIPs provide for 
implementation, maintenance and enforcement of the
    NAAQS. These submissions must contain any revisions needed for 
meeting the applicable SIP requirements of section 110(a)(2), or 
certifications that their existing SIPs for PM2.5, ozone, 
Pb, NO2, and SO2 already meet those requirements. 
EPA highlighted this statutory requirement in an October 2, 2007, 
guidance document entitled ``Guidance on SIP Elements Required Under 
Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and 
PM2.5 National Ambient Air Quality Standards'' (2007 Memo). 
On September 25, 2009, EPA issued an additional guidance document 
pertaining to the 2006 PM2.5 NAAQS entitled ``Guidance on 
SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) National Ambient Air Quality 
Standards (NAAQS)'' (2009 Memo), followed by the October 14, 2011, 
``Guidance on Infrastructure SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality 
Standards (NAAQS)'' (2011 Memo). Most recently, EPA issued ``Guidance 
on Infrastructure State Implementation Plan (SIP) Elements under Clean 
Air Act Sections 110(a)(1) and (2)'' on September 13, 2013 (2013 Memo).

III. What is the Scope of this Rulemaking?

    EPA is acting upon the SIP submissions from Montana that address 
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) 
for the 2008 ozone, 2008 Pb, 2010 NO2, 2010 SO2, 
and 2012 PM2.5 NAAQS. The requirement for states to make a 
SIP submission of this type arises out of CAA section 110(a)(1). 
Pursuant to section 110(a)(1), states must make SIP submissions 
``within three years (or such shorter period as the Administrator may 
prescribe) after the promulgation of a national primary ambient air 
quality standard (or any revision thereof),'' and these SIP submissions 
are to provide for the ``implementation, maintenance, and enforcement'' 
of such NAAQS. The statute directly imposes on states the duty to make 
these SIP submissions, and the requirement to make the submissions is 
not conditioned upon EPA taking any action other than promulgating a 
new or revised NAAQS. Section 110(a)(2) includes a list of specific 
elements that ``[e]ach such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA; ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A; and 
nonattainment new source review (NSR) permit program submissions to 
address the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\2\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
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    \2\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    Examples of some of these ambiguities and the context in which EPA 
interprets the ambiguous portions of section 110(a)(1) and 110(a)(2) 
are discussed at length in our notice of proposed rulemaking: 
Promulgation of State Implementation Plan Revisions; Infrastructure 
Requirements for the 1997 and 2006 PM2.5, 2008 Lead, 2008 
Ozone, and 2010 NO2 National Ambient Air Quality Standards; 
South Dakota (79 FR 71040 Dec. 1, 2014) under ``III. What is the Scope 
of this Rulemaking?''
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction (SSM) that may be contrary to the CAA and 
EPA's policies addressing such excess emissions; (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for Prevention of Significant Deterioration (PSD) programs 
that may be inconsistent with current requirements of EPA's ``Final NSR 
Improvement Rule,'' 67 FR 80186,

[[Page 4227]]

Dec. 31, 2002, as amended by 72 FR 32526, June 13, 2007 (``NSR 
Reform'').

IV. What infrastructure elements are required under sections 110(a)(1) 
and (2)?

    CAA section 110(a)(1) provides the procedural and timing 
requirements for SIP submissions after a new or revised NAAQS is 
promulgated. Section 110(a)(2) lists specific elements the SIP must 
contain or satisfy. These infrastructure elements include requirements 
such as modeling, monitoring, and emissions inventories, which are 
designed to assure attainment and maintenance of the NAAQS. The 
elements that are the subject of this action are listed below.
     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control measures.
     110(a)(2)(D): Interstate transport.
     110(a)(2)(E): Adequate resources and authority, conflict 
of interest, and oversight of local governments and regional agencies.
     110(a)(2)(F): Stationary source monitoring and reporting.
     110(a)(2)(G): Emergency powers.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.
    A detailed discussion of each of these elements is contained in the 
next section.
    Two elements identified in section 110(a)(2) are not governed by 
the three year submission deadline of section 110(a)(1) and are 
therefore not addressed in this action. These elements relate to part D 
of Title I of the CAA, and submissions to satisfy them are not due 
within three years after promulgation of a new or revised NAAQS, but 
rather are due at the same time nonattainment area plan requirements 
are due under section 172. The two elements are: (1) Section 
110(a)(2)(C) to the extent it refers to permit programs (known as 
``nonattainment NSR'') required under part D, and (2) section 
110(a)(2)(I), pertaining to the nonattainment planning requirements of 
part D. As a result, this action does not address infrastructure 
elements related to the nonattainment NSR portion of section 
110(a)(2)(C) or related to 110(a)(2)(I). Furthermore, EPA interprets 
the CAA section 110(a)(2)(J) provision on visibility as not being 
triggered by a new NAAQS because the visibility requirements in part C, 
title 1 of the CAA are not changed by a new NAAQS.

V. How did Montana address the infrastructure elements of sections 
110(a)(1) and (2)?

    The Montana Department of Environmental Quality (Department or 
MDEQ) submitted certification of Montana's infrastructure SIP for the 
2008 Pb NAAQS on December 19, 2011, 2008 ozone NAAQS on January 3, 
2013, 2010 NO2 NAAQS on June 4, 2013, 2010 SO2 
NAAQS on July 15, 2013, and 2012 PM2.5 on December 17, 2015. 
Montana's infrastructure certifications demonstrate how the State, 
where applicable, has plans in place that meet the requirements of 
section 110 for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS. These plans reference 
the current Administrative Rules of Montana (ARM) and Montana Code 
Annotated (MCA). These submittals are available within the electronic 
docket for today's proposed action at www.regulations.gov. The ARM and 
MCA referenced in the submittals are publicly available at http://www.mtrules.org/ and http://leg.mt.gov/bills/mca_toc/index.htm. 
Montana's SIP, air pollution control regulations, and statutes that 
have been previously approved by EPA and incorporated into the Montana 
SIP can be found at 40 CFR 52.1370.

VI. Analysis of the State Submittals

    1. Emission limits and other control measures: Section 110(a)(2)(A) 
requires SIPs to include enforceable emission limitations and other 
control measures, means, or techniques (including economic incentives 
such as fees, marketable permits, and auctions of emissions rights), as 
well as schedules and timetables for compliance as may be necessary or 
appropriate to meet the applicable requirements of this Act.
    Specific control measures adopted in Board of Environmental Review 
(BER) orders and multiple SIP-approved state air quality regulations 
within the ARM and cited in Montana's certifications provide 
enforceable emission limitations and other control measures, means of 
techniques, schedules for compliance, and other related matters 
necessary to meet the requirements of the CAA section 110(a)(2)(A) for 
the 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS, subject to the 
following clarifications.
    First, this infrastructure element does not require the submittal 
of regulations or emission limitations developed specifically for 
attaining the 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS. Montana's 
certifications (contained within this docket) generally list provisions 
and enforceable control measures within its SIP which regulate 
pollutants through various programs, including its stationary source 
permit program which requires sources to demonstrate emissions will not 
cause or contribute to a violation of any NAAQS (ARM 17.8.749). This 
suffices, in the case of Montana, to meet the requirements of section 
110(a)(2)(A) for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS.
    Second, as previously discussed, EPA is not proposing to approve or 
disapprove any existing state rules with regard to director's 
discretion or variance provisions. A number of states, including 
Montana, have such provisions which are contrary to the CAA and 
existing EPA guidance (52 FR 45109, Nov. 24, 1987), and the agency 
plans to take action in the future to address such state regulations. 
In the meantime, EPA encourages any state having a director's 
discretion or variance provision which is contrary to the CAA and EPA 
guidance to take steps to correct the deficiency as soon as possible.
    Finally, in this action, EPA is also not proposing to approve or 
disapprove any existing state provision with regard to excess emissions 
during SSM of operations at a facility. A number of states, including 
Montana, have SSM provisions which are contrary to the CAA and existing 
EPA guidance \3\ and the agency is addressing such state regulations 
separately (80 FR 33840, June 12, 2015).
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    \3\ Steven Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Robert Perciasepe, Assistant Administrator 
for Air and Radiation, Memorandum to EPA Air Division Directors, 
``State Implementation Plans (SIPs): Policy Regarding Emissions 
During Malfunctions, Startup, and Shutdown.'' (September 20, 1999).
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    Therefore, EPA is proposing to approve Montana's infrastructure SIP 
for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 
and 2012 PM2.5 NAAQS with respect to the general requirement 
in section 110(a)(2)(A) to include enforceable emission limitations and 
other control measures, means, or techniques to meet the applicable 
requirements of this element.
    2. Ambient air quality monitoring/data system: Section 110(a)(2)(B) 
requires SIPs to provide for establishment and operation of appropriate 
devices, methods, systems, and procedures necessary to ``(i) monitor, 
compile, and analyze data on

[[Page 4228]]

ambient air quality, and (ii) upon request, make such data available to 
the Administrator.''
    On an annual basis, the Department evaluates trends in industrial 
and economic development, meteorology, and population growth, and 
conducts other scientific, social, and geographic observations 
regarding areas of the State which may be adversely affected by the 
impact of criteria pollutants. The Department, with participation and 
input from local county air pollution control program staff and other 
interested persons, develops decisions regarding monitor type, 
location, and schedules for monitoring air quality in these hotspots. 
Montana's annual monitoring network plan (AMNP), is made available by 
the Department for public review and comment prior to submission to 
EPA. EPA approved 2015 network changes through an AMNP response letter 
(contained within the docket) mailed to the Department on November 25, 
2015.
    Further, in accordance with 40 CFR 58.10, beginning in July 2008, 
and every five years thereafter, Montana develops a periodic network 
assessment to ensure the effective implementation of an adequate 
ambient air quality surveillance system. The periodic network 
assessment is made available by the Department for public review and 
comment prior to submission to EPA.
    Pursuant to its Quality Assurance Project Plans, the Department 
makes arrangements to operate and maintain federal reference monitors 
and establishes federally-approved protocols for sample collection, 
handling, and analysis. Air monitoring data is submitted to EPA's 
national ``AIRS'' database.
    The provisions in state law for the collection and analysis of 
ambient air quality data are contained in the MT CAA, 75-2-101 et seq., 
MCA, and specifically, 75-2-112, MCA, Powers and Responsibilities of 
Department.
    Montana's air monitoring programs and data systems meet the 
requirements of CAA section 110(a)(2)(B). Therefore, EPA is proposing 
to approve Montana's infrastructure SIP for the 2008 Pb, 2008 ozone, 
2010 NO2, 2010 SO2 and 2012 PM2.5 
NAAQS with respect to the general requirements in section 110(a)(2)(B).
    3. Program for enforcement of control measures: Section 
110(a)(2)(C) requires SIPs to include a program to provide for the 
enforcement of the measures described in subparagraph (A), and 
regulation of the modification and construction of any stationary 
source within the areas covered by the plan as necessary to assure 
NAAQS are achieved, including a permit program as required in parts C 
and D.
    To generally meet the requirements of section 110(a)(2)(C), the 
State is required to have SIP-approved PSD, nonattainment NSR, and 
minor NSR permitting programs adequate to implement the 2008 Pb, 2008 
ozone, 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS. As explained elsewhere in this action, EPA is 
not evaluating nonattainment related provisions, such as the 
nonattainment NSR program required by part D of the Act. EPA is 
evaluating the State's PSD program as required by part C of the Act, 
and the State's minor NSR program as required by 110(a)(2)(C).

PSD Requirements

    With respect to Elements (C) and (J), the EPA interprets the CAA to 
require each state to make an infrastructure SIP submission for a new 
or revised NAAQS that demonstrates that the air agency has a complete 
PSD permitting program meeting the current requirements for all 
regulated NSR pollutants. The requirements of Element D(i)(II) may also 
be satisfied by demonstrating the air agency has a complete PSD 
permitting program correctly addressing all regulated NSR pollutants. 
Montana has shown that it currently has a PSD program in place that 
covers all regulated NSR pollutants, including greenhouse gases (GHGs).
    On June 23, 2014, the United States Supreme Court issued a decision 
addressing the application of PSD permitting requirements to GHG 
emissions. Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not 
treat GHGs as an air pollutant for purposes of determining whether a 
source is a major source required to obtain a PSD permit. The Court 
also said that the EPA could continue to require that PSD permits, 
otherwise required based on emissions of pollutants other than GHGs 
(anyway sources) contain limitations on GHG emissions based on the 
application of Best Available Control Technology (BACT).
    In accordance with the Supreme Court decision, on April 10, 2015, 
the U.S. Court of Appeals for the District of Columbia Circuit (the 
D.C. Circuit) issued an amended judgment vacating the regulations that 
implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas 
Tailoring Rule, but not the regulations that implement Step 1 of that 
rule. Step 1 of the Tailoring Rule covers sources that are required to 
obtain a PSD permit based on emissions of pollutants other than GHGs. 
Step 2 applied to sources that emitted only GHGs above the thresholds 
triggering the requirement to obtain a PSD permit. The amended judgment 
preserves, without the need for additional rulemaking by the EPA, the 
application of the BACT requirement to GHG emissions from Step 1 or 
``anyway'' sources. With respect to Step 2 sources, the D.C. Circuit's 
amended judgment vacated the regulations at issue in the litigation, 
including 40 CFR 51.166(b)(48)(v), ``to the extent they require a 
stationary source to obtain a PSD permit if greenhouse gases are the 
only pollutant (i) that the source emits or has the potential to emit 
above the applicable major source thresholds, or (ii) for which there 
is a significant emission increase from a modification.''
    The EPA is planning to take additional steps to revise federal PSD 
rules in light of the Supreme Court opinion and subsequent D.C. Circuit 
judgment. Some states have begun to revise their existing SIP-approved 
PSD programs in light of these court decisions, and some states may 
prefer not to initiate this process until they have more information 
about the planned revisions to EPA's PSD regulations. The EPA is not 
expecting states to have revised their PSD programs in anticipation of 
the EPA's planned actions to revise its PSD program rules in response 
to the court decisions.
    At present, the EPA has determined the State's SIP is sufficient to 
satisfy Elements (C), (D)(i)(II) element 3, and (J) with respect to 
GHGs. This is because the PSD permitting program previously approved by 
the EPA into the SIP continues to require that PSD permits issued to 
``anyway sources'' contain limitations on GHG emissions based on the 
application of BACT. The SIP contains the PSD requirements for applying 
the BACT requirement to greenhouse gas emissions from ``anyway 
sources'' that are necessary at this time. The application of those 
requirements is not impeded by the presence of other previously-
approved provisions regarding the permitting of Step 2 sources. 
Accordingly, the Supreme Court decision and subsequent D.C. Circuit 
judgment do not prevent the EPA's approval of Montana's infrastructure 
SIP as to the requirements of Elements (C), (D)(i)(II) element 3 and 
(J).
    In our July 22, 2011 rulemaking titled ``Implementation Plan 
Revisions; Infrastructure Requirements for the 1997 8-Hour Ozone 
National Ambient Air Quality Standard; Montana'' (76 FR 43918) we 
disapproved the Montana infrastructure SIP for the 1997 ozone

[[Page 4229]]

NAAQS for elements (C) and (J) on the basis that Montana's SIP-approved 
PSD program did not properly regulate nitrogen oxides as an ozone 
precursor. For the same reason, we later disapproved Montana's 
infrastructure SIP for the 1997 and 2006 PM2.5 NAAQS for 
elements (C) and (J) in our July 30, 2013 rulemaking titled 
``Promulgation of State Implementation Plan Revisions; Infrastructure 
requirements for the 1997 and 2006 P.M.2.5 National Ambient 
Air Quality Standards; Montana'' (78 FR 45864). On January 29, 2015, 
(80 FR 4793), we approved a Montana SIP revision that addressed the PSD 
requirements of the Phase 2 Ozone Implementation Rule promulgated in 
2005 (70 FR 71612). As a result, the approved Montana PSD program meets 
current requirements for ozone.
    Finally, we evaluate the PSD program with respect to current 
requirements for PM2.5. In particular, on May 16, 2008, EPA 
promulgated the rule, ``Implementation of the New Source Review Program 
for Particulate Matter Less Than 2.5 Micrometers (PM2.5)'' 
(73 FR 28321) and on October 20, 2010 EPA promulgated the rule, 
``Prevention of Significant Deterioration (PSD) for Particulate Matter 
Less Than 2.5 Micrometers (PM2.5)--Increments, Significant 
Impact Levels (SILs) and Significant Monitoring Concentration (SMC)'' 
(75 FR 64864). EPA regards adoption of these PM2.5 rules as 
a necessary requirement when assessing a PSD program for the purposes 
of element (C).
    On January 4, 2013, the U.S. Court of Appeals, in Natural Resources 
Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), issued a judgment 
that remanded EPA's 2007 and 2008 rules implementing the 1997 
PM2.5 NAAQS. The court ordered EPA to ``repromulgate these 
rules pursuant to Subpart 4 consistent with this opinion.'' Id. at 437. 
Subpart 4 of part D, Title 1 of the CAA establishes additional 
provisions for particulate matter nonattainment areas.
    The 2008 implementation rule addressed by the court decision, 
``Implementation of New Source Review (NSR) Program for Particulate 
Matter Less Than 2.5 Micrometers (PM2.5),'' (73 FR 28321, 
May 16, 2008), promulgated NSR requirements for implementation of 
PM2.5 in nonattainment areas (nonattainment NSR) and 
attainment/unclassifiable areas (PSD). As the requirements of Subpart 4 
only pertain to nonattainment areas, EPA does not consider the portions 
of the 2008 Implementation rule that address requirements for 
PM2.5 attainment and unclassifiable areas to be affected by 
the court's opinion. Moreover, EPA does not anticipate the need to 
revise any PSD requirements promulgated in the 2008 Implementation rule 
in order to comply with the court's decision. Accordingly, EPA's 
proposed approval of Montana's infrastructure SIP as to elements C or J 
with respect to the PSD requirements promulgated by the 2008 
Implementation rule does not conflict with the court's opinion.
    The court's decision with respect to the nonattainment NSR 
requirements promulgated by the 2008 Implementation rule also does not 
affect EPA's action on the present infrastructure action. EPA 
interprets the Act to exclude nonattainment area requirements, 
including requirements associated with a nonattainment NSR program, 
from infrastructure SIP submissions due three years after adoption or 
revision of a NAAQS. Instead, these elements are typically referred to 
as nonattainment SIP or attainment plan elements, which would be due by 
the dates statutorily prescribed under subpart 2 through 5 under part 
D, extending as far as 10 years following designations for some 
elements.
    The second PSD requirement for PM2.5 is contained in 
EPA's October 20, 2010 rule, ``Prevention of Significant Deterioration 
(PSD) for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels (SILs) and 
Significant Monitoring Concentration (SMC)'' (75 FR 64864). EPA regards 
adoption of the PM2.5 increments as a necessary requirement 
when assessing a PSD program for the purposes of element (C).
    On August 21, 2012, Montana submitted revisions to EPA which 
addressed the requirements of the 2008 PM2.5 NSR 
Implementation Rule and the 2010 Increment Rule. Portions of the 2010 
Increment rule were vacated by the Federal Courts (Sierra Club v. EPA). 
EPA subsequently revised the affected NSR-PSD rules accordingly (78 FR 
73698, Dec. 9, 2013). On March 24, 2015, Montana submitted revisions 
which addressed the Court's decision and supersedes and replaces these 
aspects of the August 21, 2012 submittal. These submittals are 
available within this docket.
    In this action, we propose to approve the necessary portions of 
Montana's August 21, 2012 and March 24, 2015 submittals to reflect the 
2008 PM2.5 Implementation Rule and the 2010 PM2.5 
Increment Rule; specifically 40 CFR part 166, paragraphs (b)(14)(i), 
(ii), (iii), (b)(15)(i), (ii), (b)(23)(i), (b)(49)(i), (vi), and 
paragraph (c)(1). EPA is proposing to approve revisions to: ARM 
17.8.801(3), 17.8.801(21), 17.8.801(27), 17.8.804(1), ARM 
17.8.818(7)(a)(iv)-(xi), 17.8.822(9), 17.8.822(10), 17.8.822(11), 
17.8.822(12), and 17.8.825(4) from the August 21, 2012 submittal. We 
propose no action on revisions to ARM 17.8.818(7)(a)(iii) and 
17.8.820(2) because they were superseded by the March 24, 2015 
submittal. We are not proposing to act on any other portions of the 
August 21, 2012 submittal.
    EPA is proposing to approve revisions from the March 24, 2015 
submittal to ARM 17.8.818(7)(a)(iii) on the condition that the State 
adopts and submits specific revisions within one year of EPA's final 
action on these infrastructure submittals; specifically to remove the 
phrase ``24-hour average'' in ARM 17.8.818(7)(a)(iii) .\4\ We propose 
no action on ARM 17.8.820(2) because it deletes a section of the ARM 
which was never approved into the State's SIP. The submitted revisions 
make Montana's PSD program up to date with respect to current 
requirements for PM2.5.
---------------------------------------------------------------------------

    \4\ See ``Section 128 and 2012 PM2.5 Cover Letter and 
PSD Commitment Letter'' submitted to EPA on December 17, 2015, 
contained within this docket.
---------------------------------------------------------------------------

    EPA is proposing to approve Montana's SIP for the 2008 Pb, 2008 
ozone, 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS with respect to the requirement in section 
110(a)(2)(C) to include a PSD permit program in the SIP as required by 
part C of the Act on the condition that the State adopts and submits 
revisions to ARM 17.8.818(7)(a)(iii) as previously described.

Minor NSR

    The State has a SIP-approved minor NSR program, adopted under 
section 110(a)(2)(C) of the Act. The minor NSR program was originally 
approved by EPA on March 22, 1972. Since approval of the minor NSR 
program, the State and EPA have relied on the program to assure that 
new and modified sources not captured by the major NSR permitting 
programs do not interfere with attainment and maintenance of the NAAQS.
    EPA is proposing to approve Montana's infrastructure SIP for the 
2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS with respect to the general requirement in 
section 110(a)(2)(C) to include a program in the SIP that regulates the 
enforcement, modification, and construction of any stationary source as 
necessary to assure that the NAAQS are achieved.
    4. Interstate Transport: The interstate transport provisions in CAA 
section 110(a)(2)(D)(i) (also called ``good neighbor'' provisions) 
require each state

[[Page 4230]]

to submit a SIP that prohibits emissions that will have certain adverse 
air quality effects in other states. CAA section 110(a)(2)(D)(i) 
identifies four distinct elements related to the impacts of air 
pollutants transported across state lines. The two elements under 
110(a)(2)(D)(i)(I) require SIPs to contain adequate provisions to 
prohibit any source or other type of emissions activity within the 
state from emitting air pollutants that will (element 1) contribute 
significantly to nonattainment in any other state with respect to any 
such national primary or secondary NAAQS, and (element 2) interfere 
with maintenance by any other state with respect to the same NAAQS. The 
two elements under 110(a)(2)(D)(i)(II) require SIPs to contain adequate 
provisions to prohibit emissions that will interfere with measures 
required to be included in the applicable implementation plan for any 
other state under part C (element 3) to prevent significant 
deterioration of air quality or (element 4) to protect visibility. In 
this action, EPA is addressing all four elements of CAA section 
110(a)(2)(D)(i) with regard to the 2008 Pb and 2010 NO2 
NAAQS. EPA is addressing only elements 3 and 4 of CAA section 
110(a)(2)(D)(i)(II) for the 2008 ozone, 2010 SO2 and 2012 
PM2.5 NAAQS. We will also address elements 3 and 4 for the 
2006 PM2.5 NAAQS, because EPA did not address these elements 
as part of the July 30, 2013 action in which we approved elements 1 and 
2 for the 2006 PM2.5 NAAQS (78 FR 45869). We are not 
addressing elements 1 and 2 for the 2008 ozone \5\ 2010 SO2 
and 2012 PM2.5 NAAQS in this action. These elements will be 
addressed in a later rulemaking.
---------------------------------------------------------------------------

    \5\ EPA proposed approval of elements 1 and 2 of Montana's SIP 
for the 2008 ozone NAAQS in a notice published November 23, 2015 (80 
FR 72937).
---------------------------------------------------------------------------

A. Evaluation of Significant Contribution to Nonattainment and 
Interference With Maintenance

2008 Pb NAAQS
    Montana's analysis of potential interstate transport for the 2008 
Pb NAAQS discussed the lack of sources with significant Pb emissions 
near the State's borders. Montana's analysis is available in the docket 
for this action.
    As noted in our 2011 Memo, there is a sharp decrease in Pb 
concentrations, at least in the coarse fraction, as the distance from a 
Pb source increases. For this reason, EPA found that the ``requirements 
of subsection (2)(D)(i)(I) (prongs 1 and 2) could be satisfied through 
a state's assessment as to whether or not emissions from Pb sources 
located in close proximity to their state borders have emissions that 
impact the neighboring state such that they contribute significantly to 
nonattainment or interfere with maintenance in that state.'' \6\ In 
that guidance document, EPA further specified that any source appeared 
unlikely to contribute significantly to nonattainment unless it was 
located less than 2 miles from a state border and emitted at least 0.5 
tons per year of Pb. Montana's 110(a)(2)(D)(i)(I) analysis specifically 
noted that there are no sources in the State that meet both of these 
criteria. EPA concurs with the State's analysis and conclusion that no 
Montana sources have the combination of Pb emission levels and 
proximity to nearby nonattainment or maintenance areas to contribute 
significantly to nonattainment in or interfere with maintenance by 
other states for this NAAQS. Montana's SIP is therefore adequate to 
ensure that such impacts do not occur. We are proposing to approve 
Montana's submission in that its SIP meets the requirements of section 
110(a)(2)(D)(i) for the 2008 Pb NAAQS.
---------------------------------------------------------------------------

    \6\ 2011 Memo, at pg 8.
---------------------------------------------------------------------------

2010 NO2 NAAQS
    Montana's 2010 NO2 transport analysis for elements 1 and 
2 of 110(a)(2)(D)(i) describes how sources in the State are subject to 
various permitting requirements. Montana asserts that these 
requirements prevent sources from emitting NO2 in amounts 
that would contribute significantly to nonattainment or interfere with 
maintenance of the NAAQS in other states. The State's analysis is 
available in the docket for this action.
    EPA concurs with the conclusion of Montana's 2010 NO2 
transport analysis. Due to Montana's limited technical analysis, EPA 
considered additional factors before reaching this conclusion, 
specifically NO2 monitoring data from Montana and 
surrounding states. EPA notes that the highest monitored NO2 
design values in each state bordering or near Montana are significantly 
below the NAAQS (see Table 1). This fact supports the State's 
contention that significant contribution to nonattainment or 
interference with maintenance of the NO2 NAAQS from Montana 
is unlikely. As shown in Table 1, the maximum design values in states 
bordering Montana are well below the 2010 NO2 NAAQS. In 
addition, no areas in the U.S. have been designated nonattainment for 
the 2010 NO2 NAAQS. As the states near Montana are not only 
attaining, but also having no trouble maintaining the NAAQS, there are 
no areas to which Montana could significantly contribute to 
nonattainment or interfere with maintenance of the 2010 NO2 
NAAQS.
---------------------------------------------------------------------------

    \7\ Idaho's maximum design value was calculated using EPA's 
AirData Web site, at http://www.epa.gov/airquality/airdata/ad_rep_mon.html.

         Table 1--Highest Monitored 2010 NO2 NAAQS Design Values
------------------------------------------------------------------------
                                      2012-2014 Design      % of NAAQS
               State                        value            (100 ppb)
------------------------------------------------------------------------
Idaho.............................  43 ppb \7\..........              43
North Dakota......................  35 ppb..............              35
South Dakota......................  38 ppb..............              38
Wyoming...........................  35 ppb..............              35
------------------------------------------------------------------------
* Source: http://www.epa.gov/airtrends/values.html.

[[Page 4231]]

    In addition to the monitored levels of NO2 in states 
near Montana being well below the NAAQS, Montana's highest official 
design value from 2012-2014 was also significantly below this NAAQS (7 
ppb).\8\
---------------------------------------------------------------------------

    \8\ http://www.epa.gov/airtrends/values.html.
---------------------------------------------------------------------------

    Based on all of these factors, EPA concurs with the State's 
conclusion that Montana does not contribute significantly to 
nonattainment or interfere with maintenance of the 2010 NO2 
NAAQS in other states. EPA is therefore proposing to determine that 
Montana's SIP includes adequate provisions to prohibit sources or other 
emission activities within the State from emitting NO2 in 
amounts that will contribute significantly to nonattainment in or 
interfere with maintenance by any other state with respect to the 
NO2 NAAQS.

B. Evaluation of Interference With Measures To Prevent Significant 
Deterioration (PSD)

    With regard to the PSD portion of CAA section 110(a)(2)(D)(i)(II), 
this requirement may be met by a state's confirmation in an 
infrastructure SIP submission that new major sources and major 
modifications in the state are subject to a comprehensive EPA-approved 
PSD permitting program in the SIP that applies to all regulated new 
source review (NSR) pollutants and that satisfies the requirements of 
EPA's PSD implementation rules.\9\ As noted in the discussion for 
infrastructure element (C) earlier in this notice, EPA is proposing to 
conditionally approve CAA section 110(a)(2) element (C) for Montana's 
infrastructure SIP for the 2008 Pb, 2008 ozone, 2010 NO2, 
2010 SO2, and 2012 PM2.5 NAAQS with respect to 
PSD requirements. As discussed in detail in that section, Montana's PSD 
program will meet the current structural requirements of 110(a)(2)(C) 
for PM2.5 on the condition that the State adopts and submits 
specific revisions within one year of EPA's final action on these 
infrastructure submittals to correct the language in ARM 
17.8.818(7)(a)(iii). We are also proposing to conditionally approve 
Montana's infrastructure SIP as meeting the 110(a)(2)(D)(i)(II) element 
3 (PSD) requirements for 2006 24-hour PM2.5 NAAQS.
---------------------------------------------------------------------------

    \9\ See 2013 Memo.
---------------------------------------------------------------------------

    As stated in the 2013 Memo, in-state sources not subject to PSD for 
any one or more of the pollutants subject to regulation under the CAA 
because they are in a nonattainment area for a NAAQS related to those 
particular pollutants may also have the potential to interfere with PSD 
in an attainment or unclassifiable area of another state. One way a 
state may satisfy element 3 with respect to these sources is by citing 
an air agency's EPA-approved nonattainment NSR provisions addressing 
any pollutants for which the state has designated nonattainment areas. 
Montana has a SIP-approved nonattainment NSR program which ensures 
regulation of major sources and major modifications in nonattainment 
areas, and therefore satisfies element 3 with regard to this 
requirement.\10\
---------------------------------------------------------------------------

    \10\ See ARM 17.8.901-906.
---------------------------------------------------------------------------

    EPA is proposing to conditionally approve the infrastructure SIP 
submission with regard to the requirements of element 3 of section 
110(a)(2)(D)(i) for the 2006 24-hour PM2.5, 2008 Pb, 2008 
Ozone, 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS.

C. Evaluation of Interference With Measures To Protect Visibility

    The determination of whether the CAA section 110(a)(2)(D)(i)(II) 
requirement for visibility is satisfied is closely connected to EPA's 
regional haze program. Under the regional haze program, each state with 
a Class I area is required to submit a regional haze SIP with 
reasonable progress goals for each such area that provides for an 
improvement in visibility for the most impaired days and ensures no 
degradation of the best days. CAA section 169A.
    Because of the often significant impacts on visibility from the 
interstate transport of pollutants, we interpret the provisions of CAA 
section 110(a)(2)(D)(i)(II) described above as requiring states to 
include in their SIPs measures to prohibit emissions that would 
interfere with the reasonable progress goals set to protect Class I 
areas in other states. This is consistent with the requirements in the 
regional haze program which explicitly require each state to address 
its share of the emission reductions needed to meet the reasonable 
progress goals for surrounding Class I areas. 64 FR 35714, 35735 (July 
1, 1999).
    Montana did not submit a regional haze SIP to EPA, which in turn 
required EPA to promulgate a federal implementation plan (FIP) to 
satisfy the regional haze requirements for the State. EPA finalized its 
regional haze FIP for Montana in a rule published September 18, 2012 
(77 FR 57864). Several parties filed petitions for review of the 
Montana regional haze FIP. In Nat'l Parks Conservation Ass'n v. EPA, 
788 F.3d 1134 (9th Cir. 2015), the U.S. Court of Appeals for the Ninth 
Circuit vacated and remanded to EPA certain portions of the regional 
haze FIP setting NOX and SO2 emission limits at 
two facilities in Montana. EPA is currently working to address the 
remand of these portions of the Montana regional haze FIP in accordance 
with the court's decision.
    In its 2008 ozone, 2010 SO2 and 2010 NO2 
NAAQS infrastructure certifications, Montana asserted that each of 
these pollutants was ``generally insignificant'' related to impacts on 
visibility impairment, emitted in limited amounts in the state, and 
that significant impacts from each of these pollutants are ``mostly 
located away'' from state borders. In its February 10, 2010 
certification for the 2006 PM2.5 NAAQS, the State did not 
directly address visibility impacts from Montana to other states, and 
instead generally addressed element 110(a)(2)(D)(i).
    In its 2008 Pb NAAQS certification, Montana cited the 2011 Memo in 
noting the general insignificance of Pb-related impacts on visibility 
impairment, and stated that significant impacts from Pb emissions from 
stationary sources are expected to be limited to short distances from 
the source. Montana affirmed that it did not contain sources with 0.5 
tpy or greater lead emissions located within two miles of the State's 
border and therefore concluded that it met the requirements of 
110(a)(2)(D)(i)(II) with respect to visibility for the 2008 Pb NAAQS.
    In its 2012 PM2.5 NAAQS certification, Montana asserted 
that their Visibility Plan and FIP, which is in place to satisfy 
requirements of the EPA Regional Haze Program (77 FR 57863, Sept. 18, 
2012), demonstrate that sources in Montana do not interfere with 
visibility protection in other states. However, they acknowledge that, 
in accordance with EPA's 2013 infrastructure SIP guidance, a FIP cannot 
be relied upon to meet the requirements of element 110(a)(2)(D)(i)(II) 
related to visibility and therefore the requirements of element 4 are 
not met.
    EPA disagrees with the State's assertions that NO2, 
SO2 and ozone are generally insignificant in their impacts 
on visibility impairment. See 77 FR at 23995, 24053-54 (EPA determined 
in its regional haze FIP rulemaking that Montana emissions have impacts 
at Class I areas in other states). Montana's claim that significant 
impacts from these three pollutants are located away from state borders 
is conclusory and not supported by relevant information or analysis. As 
the State does not have a fully approved regional haze SIP, and has not 
otherwise demonstrated that its SIP satisfies the visibility 
requirement of section 110(a)(2)(D)(i)(II), EPA proposes

[[Page 4232]]

to disapprove this portion of Montana's SIP for the 2006 
PM2.5, 2008 ozone, 2010 NO2 and 2010 
SO2 NAAQS. Because EPA in the Montana regional haze FIP has 
and will continue to address visibility impairment from Montana sources 
in Class I areas outside of the State, this disapproval will not 
require further action from the State, and does not create a new FIP 
obligation for EPA.
    Regarding the 2008 Pb NAAQS, EPA agrees that significant impacts 
from Pb emissions from stationary sources are expected to be limited to 
short distances from the source and most, if not all, Pb stationary 
sources are located at distances from Class I areas such that 
visibility impacts would be negligible. Further, when evaluating the 
extent to which Pb could impact visibility, EPA has found Pb-related 
visibility impacts insignificant (e.g., less than 0.10 percent).\11\ 
Montana does not have any major sources of Pb located within ten miles 
of a neighboring state's Class I area. EPA proposes to approve 
Montana's conclusion that it does not have any significant sources of 
lead emissions within 2 miles of its border and that it therefore does 
not have emissions of Pb that would interfere with the requirements of 
section 110(a)(2)(D)(i)(II) with respect to visibility.
---------------------------------------------------------------------------

    \11\ 2013 Memo at 33.
---------------------------------------------------------------------------

    EPA agrees with Montana's assertion that its SIP does not satisfy 
the visibility requirements of section 110(a)(2)(D)(i)(II) for the 2012 
PM2.5 NAAQS. EPA proposes to disapprove this portion of the 
Montana SIP.
    5. Interstate and International transport provisions: CAA section 
110(a)(2)(D)(ii) requires SIPs to include provisions ensuring 
compliance with the applicable requirements of CAA sections 126 and 115 
(relating to interstate and international pollution abatement). 
Specifically, CAA section 126(a) requires new or modified major sources 
to notify neighboring states of potential impacts from the source.
    Section 126(a) of the CAA requires notification to affected, nearby 
states of major proposed new (or modified) sources. Sections 126(b) and 
(c) pertain to petitions by affected states to the Administrator of the 
EPA (Administrator) regarding sources violating the ``interstate 
transport'' provisions of section 110(a)(2)(D)(i). Section 115 of the 
CAA similarly pertains to international transport of air pollution.
    As required by 40 CFR 51.166(q)(2)(iv), Montana's SIP-approved PSD 
program requires notice to states whose lands may be affected by the 
emissions of sources subject to PSD.\12\ This suffices to meet the 
notice requirement of section 126(a).
---------------------------------------------------------------------------

    \12\ See Administrative Rule of Montana (``ARM'') 
17.8.826(2)(d).
---------------------------------------------------------------------------

    Montana has no pending obligations under sections 126(c) or 115(b); 
therefore, its SIP currently meets the requirements of those sections. 
In summary, the SIP meets the requirements of CAA section 
110(a)(2)(D)(ii), and EPA is therefore proposing approval of this 
element for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS. EPA is also proposing 
to approve the Montana SIP as meeting the requirements of section 
110(a)(2)(D)(ii) for the 1997 and 2006 PM2.5 NAAQS. Montana 
submitted an infrastructure certification generally addressing CAA 
section 110(a)(2)(D) for the 1997 and 2006 PM2.5 NAAQS on 
February 10, 2010.
    6. Adequate resources: Section 110(a)(2)(E)(i) requires states to 
provide necessary assurances that the state will have adequate 
personnel, funding, and authority under state law to carry out the SIP 
(and is not prohibited by any provision of federal or state law from 
carrying out the SIP or portion thereof). Section 110(a)(2)(E)(ii) also 
requires each state to comply with the requirements respecting state 
boards under CAA section 128. Section 110(a)(2)(E)(iii) requires states 
to ``provide necessary assurances that, where the State has relied on a 
local or regional government, agency, or instrumentality for the 
implementation of any [SIP] provision, the State has responsibility for 
ensuring adequate implementation of such [SIP] provision.''
a. Sub-Elements (i) and (iii): Adequate Personnel, Funding, and Legal 
Authority Under State Law To Carry Out Its SIP, and Related Issues
    The provisions contained in 75-2-102, MCA, 75-2-111, MCA, and 75-2-
112, MCA, provide adequate authority for the State of Montana and the 
DEQ to carry out its SIP obligations with respect to the 2008 Pb, 2008 
ozone, 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS. The State receives sections 103 and 105 grant 
funds through its Performance Partnership Grant along with required 
state matching funds to provide funding necessary to carry out 
Montana's SIP requirements.
    With respect to section 110(a)(2)(E)(iii), the regulations cited by 
Montana in their certifications (75-2-111 and 75-2-112, MCA) and 
contained within this docket also provide the necessary assurances that 
the State has responsibility for adequate implementation of SIP 
provisions by local governments. Therefore, we propose to approve 
Montana's SIP as meeting the requirements of section 110(a)(2)(E)(i) 
and (E)(iii) for the 2008 Pb, 2008 ozone, 2010 
NO2, 2010 SO2 and 2012 PM2.5 NAAQS.
b. Sub-Element (ii): State Boards
    Section 110(a)(2)(E)(ii) requires each state's SIP to contain 
provisions that comply with the requirements of section 128 of the CAA. 
That provision contains two explicit requirements: (i) That any board 
or body which approves permits or enforcement orders under the CAA 
shall have at least a majority of members who represent the public 
interest and do not derive a significant portion of their income from 
persons subject to such permits and enforcement orders; and (ii) that 
any potential conflicts of interest by members of such board or body or 
the head of an executive agency with similar powers be adequately 
disclosed.
    In our July 30, 2013 action, we disapproved Montana's February 10, 
2010 infrastructure SIP submission for the 1997 and 2006 
PM2.5 NAAQS for CAA Section 110(a)(2)(E)(ii) because the 
Montana SIP did not contain provisions meeting requirements of CAA 
section 128. On December 17, 2015, EPA received a submission from the 
State of Montana to address the requirements of section 128. The 
Montana BER approved new rule language on October 16, 2015. A copy of 
New Rule I (ARM 17.8.150), II (ARM 17.8.151), and III (ARM 17.8.152) is 
available within this docket. New Rule II Board Action addresses board 
composition requirements of section 128(a)(1) and New Rule III 
Reporting addresses conflict of interest requirements of section 
128(a)(2). We propose to approve this new rule language as meeting the 
requirements of section 128 for the reasons explained in more detail 
below. Because this revision meets the requirements of section 128, we 
also propose to approve the State's infrastructure SIP submissions for 
element 110(a)(2)(E)(ii). The State made these infrastructure SIP 
submissions in connection with the 2012 PM2.5 NAAQS, but 
section 128 is not NAAQS-specific and once the State has met the 
requirements of section 128 that is sufficient for purposes of 
infrastructure SIP requirements for all NAAQS. If we finalize this 
proposed approval for the 2008 Pb, 2008 ozone, 2010 
NO2, 2010 SO2, and 2012 PM2.5 NAAQS, 
this will also resolve the prior disapproval for element 
110(a)(2)(E)(ii) for the1997 and 2006 PM2.5 NAAQS.

[[Page 4233]]

    We are proposing to approve the State's December 17, 2015 SIP 
submission as meeting the requirements of section 128 because we 
believe that it complies with the statutory requirements and is 
consistent with EPA's guidance recommendations concerning section 128. 
In 1978, EPA issued a guidance memorandum recommending ways states 
could meet the requirements of section 128, including suggested 
interpretations of certain key terms in section 128.\13\ In this 
proposal notice, we discuss additional relevant aspects of section 128. 
We first note that, in the conference report on the 1977 amendments to 
the CAA, the conference committee stated, ``[i]t is the responsibility 
of each state to determine the specific requirements to meet the 
general requirements of [section 128].'' \14\ This legislative history 
indicates that Congress intended states to have some latitude in 
adopting SIP provisions with respect to section 128, so long as states 
meet the statutory requirements of the section. We also note that 
Congress explicitly provided in section 128 that states could elect to 
adopt more stringent requirements, as long as the minimum requirements 
of section 128 are met.
---------------------------------------------------------------------------

    \13\ Memorandum from David O. Bickart, Deputy General Counsel, 
to Regional Air Directors, Guidance to States for Meeting Conflict 
of Interest Requirements of Section 128 (Mar. 2, 1978).
    \14\ H.R. Rep. 95-564 (1977), reprinted in 3 Legislative History 
of the Clean Air Act Amendments of 1977, 526-27 (1978).
---------------------------------------------------------------------------

    In implementing section 128, the EPA has identified a number of key 
considerations relevant to evaluation of a SIP submission. EPA has 
identified these considerations in the 1978 guidance and in subsequent 
rulemaking actions on SIP submissions relevant to section 128, whether 
as SIP revisions for this specific purpose or as an element of broader 
actions on infrastructure SIP submissions for one or more NAAQS.
    Each state must meet the requirements of section 128 through 
provisions that EPA approves into the state's SIP and are thus made 
federally enforceable. Section 128 explicitly mandates that each SIP 
``shall contain requirements'' that satisfy subsections 128(a)(1) and 
128(a)(2). A mere narrative description of state statutes or rules, or 
of a state's current or past practice in constituting a board or body 
and in disclosing potential conflicts of interest, is not a requirement 
contained in the SIP and does not satisfy the plain text of section 
128.
    Subsection 128(a)(1) applies only to states that have a board or 
body that is composed of multiple individuals and that, among its 
duties, approves permits or enforcement orders under the CAA. It does 
not apply in states that have no such multi-member board or body that 
performs these functions, and where instead a single head of an agency 
or other similar official approves permits or enforcement orders under 
the CAA. This flows from the text of section 128, for two reasons. 
First, as subsection 128(a)(1) refers to a majority of members of the 
board or body in the plural, we think it reasonable to read subsection 
128(a)(1) as not creating any requirements for an individual with sole 
authority for approving permits or enforcement orders under the CAA. 
Second, subsection 128(a)(2) explicitly applies to the head of an 
executive agency with ``similar powers'' to a board or body that 
approves permits or enforcement orders under the CAA, while subsection 
128(a)(1) omits any reference to heads of executive agencies. We infer 
that subsection 128(a)(1) should not apply to heads of executive 
agencies who approve permits or enforcement orders.
    Subsection 128(a)(2) applies to all states, regardless of whether 
the state has a multi-member board or body that approves permits or 
enforcement orders under the CAA. Although the title of section 128 is 
``State boards,'' the language of subsection 128(a)(2) explicitly 
applies where the head of an executive agency, rather than a board or 
body, approves permits or enforcement orders. In instances where the 
head of an executive agency delegates his or her power to approve 
permits or enforcement orders, or where statutory authority to approve 
permits or enforcement orders is nominally vested in another state 
official, the requirement to adequately disclose potential conflicts of 
interest still applies. In other words, EPA interprets section 
128(a)(2) to apply to all states, regardless of whether a state board 
or body approves permits or enforcement orders under the CAA or whether 
a head of a state agency (or his/her delegates) performs these duties. 
Thus, all state SIPs must contain provisions that require adequate 
disclosure of potential conflicts of interest in order to meet the 
requirements of subsection 128(a)(2). The question of which entities or 
parties must be subject to such disclosure requirements must be 
evaluated by states and EPA in light of the specific facts and 
circumstances of each state's regulatory structure.
    A state may satisfy the requirements of section 128 by submitting 
for adoption into the SIP a provision of state law that closely tracks 
or mirrors the language of the applicable provisions of section 128. A 
state may take this approach in two ways. First, the state may adopt 
the language of subsections 128(a)(1) and 128(a)(2) verbatim. Under 
this approach, the state will be able to meet the continuing 
requirements of section 128 without any additional, future SIP 
revisions, even if the state adds or removes authority, either at the 
state level or local level, to individual or to boards or bodies to 
approve permits or enforcement orders under the CAA so long as the 
state continues to meet section 128 requirements.
    Second, the state may modify the language of subsections 128(a)(1) 
(if applicable) and 128(a)(2) to name the particular board, body, or 
individual official with approval authority. In this case, if the state 
subsequently modifies that authority, the state may have to submit a 
corresponding SIP revision to meet the continuing requirements of 
section 128. If the state chooses to not mirror the language of section 
128, the state may adopt state statutes and/or regulations that 
functionally impose the same requirements as those of section 128, 
including definitions for key terms such as those recommended in EPA's 
1978 guidance. While any of these approaches would meet the minimum 
requirements of section 128, the statute also explicitly authorizes 
states to adopt more stringent requirements, for example to impose 
additional requirements for recusal of board members from decisions, 
above and beyond the explicit board composition requirements. Although 
such recusal alone does not meet the requirements of section 128, 
states have the authority to require that over and above the explicit 
requirements of section 128. These approaches give states flexibility 
in implementing section 128, while still ensuring consistency with the 
statute.
    EPA has evaluated the New Rule I Definitions, II Board Action, and 
III Reporting (available within this docket) from the State in light of 
the requirements of section 128, these key considerations previously 
noted, and the recommendations in the 1978 guidance. The Montana Code 
creates a Board of Environmental Review (BER) which consists of seven 
members appointed by the Governor. A person who is directly and 
adversely affected by the Montana DEQ's approval or denial of a permit 
to construct an air pollution source may request a hearing before the 
BER and the BER may uphold, alter, or reverse decisions of the Montana 
DEQ. Similarly, a person who participated in the comment period on 
Montana DEQ's issuance, renewal, amendment, or modification of a title 
V operating permit may request a hearing

[[Page 4234]]

before the BER and the BER may uphold, alter, or reverse decisions of 
the Montana DEQ. Finally, a person who receives an enforcement order 
from Montana DEQ under Chapter 2 of Title 75, Air Quality, may request 
a hearing before the BER and the BER may uphold, alter, or reverse 
decisions of the Montana DEQ.
    As EPA has explained in other rulemaking actions, e.g., 78 FR 32613 
(May 31, 2013), we interpret section 128(a)(1) to mean that boards that 
are the potential final decisionmaker via permit and enforcement order 
appeals ``approve'' those permits and enforcement orders. For example, 
by being the final decisionmaker with respect to questions such as 
whether a source receives a permit and the specific contents of such a 
permit, the board is an entity that approves the permit within the 
meaning of 128(a)(1). Thus, the BER is subject to the requirements of 
128(a)(1).
    Montana's New Rule II Board Action, provides that the BER must be 
composed in conformance with requirements of section 128 of the CAA for 
all permits and enforcement orders initiated under Montana's air 
pollution control authority. In essence, the rule prohibits the BER 
from taking action if the BER does not meet the requirements of section 
128(a)(1). The State has submitted New Rule II (ARM 17.8.151) to EPA 
for adoption into their SIP, thus making a legally binding requirement 
that the BER be comprised of a majority of members that represent the 
public interest and do not derive a significant portion of their income 
from parties subject to permit requirements or enforcement orders under 
the CAA. The definitions of ``regulated person,'' ``represent the 
public interest,'' and ``significant portion of income'' are consistent 
with the recommendations in our 1978 guidance. We believe Montana's 
submission of New Rule II satisfies the requirements of subsection 
128(a)(1).
    To meet the requirements of subsection 128(a)(2), the State's New 
Rule III (ARM 17.8.152) Reporting, includes disclosure requirements 
applying to members of the BER. At the first meeting each calendar 
year, members of the BER must file with the BER secretary a written 
certification that they ``represent the public interest \15\'' and do 
not derive a ``significant portion of income'' from ``regulated 
persons'' as defined in New Rule I (ARM 17.8.150) Definitions (4)(a), 
(b) and (c). The board member must file with the BER a written 
withdrawal of certification if they no longer represent the public 
interest or has begun to derive a ``significant portion of income 
\16\'' from ``regulated persons,'' as defined in New Rule I (5) and 
(3)(a) and (b). Furthermore, board members must file with the BER a 
written disclose of any ``potential conflicts of interest'' as defined 
in New Rule I (2)(a) and (b). New Rule I defines ``potential conflict 
of interest'' as ``(a) any income from a regulated person; or (b) any 
interest or relationship that would preclude the individual having the 
interest or relationship from being considered one who represents the 
public interest.'' This definition is consistent with the suggested 
definition in the 1978 guidance. We believe Montana's submission of New 
Rule I and III satisfies the requirements of subsection 128(a)(2).
---------------------------------------------------------------------------

    \15\ New Rule I defines ``represent the public interest'' as a 
person who ``(4) does not: (a) Own a controlling interest in or have 
five percent or more of his or her capital invested in a regulated 
person; (b) serve as attorney for, act as consultant for, or serve 
as an officer or director of a regulated person; or (c) hold any 
other official or contractual relationship with a regulated 
person.''
    \16\ New Rule I defines ``significant portion of income'' as 
``(5) ten percent or more of gross personal income for a calendar 
year, including retirement benefits, consulting fees, and stock 
dividends, except that it shall mean 50 percent or more of gross 
personal income for a calendar year if the recipient is over 60 
years of age and is receiving such portion pursuant to retirement, 
pension, or similar arrangement. For purposes of this section, 
income derived from mutual-fund payments, or from other diversified 
investments as to which the recipient does not know the identity of 
the primary sources of income, shall be considered part of the 
recipient's gross personal income but shall not be treated as income 
derived from persons subject to permits or enforcement orders under 
the Clean Air Act.''
---------------------------------------------------------------------------

    For the foregoing reasons, the EPA believes that the New Rules I 
(ARM 17.8.150), II (ARM 17.8.151), and III (ARM 17.8.152) adopted by 
the BER on October 16, 2015 and submitted to EPA for inclusion in the 
SIP on December 17, 2015 contains provisions that meet the requirements 
of section 128(a)(1) and section 128(a). Accordingly, we are proposing 
approval of that submission and also proposing approval of the 
infrastructure SIP submission as meeting the requirements of section 
128 for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 
SO2 and 2012 PM2.5 NAAQS.
    7. Stationary source monitoring system: Section 110(a)(2)(F) 
requires: (i) The installation, maintenance, and replacement of 
equipment, and the implementation of other necessary steps, by owners 
or operators of stationary sources to monitor emissions from such 
sources; (ii) Periodic reports on the nature and amounts of emissions 
and emissions-related data from such sources; and (iii) Correlation of 
such reports by the state agency with any emission limitations or 
standards established pursuant to the Act, which reports shall be 
available at reasonable times for public inspection.
    The provisions cited by Montana (ARM 17.8.105 and 17.8.106) pertain 
to testing requirements and protocols. Montana also incorporates by 
reference 40 CFR part 51, appendix P, regarding minimum monitoring 
requirements. (See ARM 17.8.103(1)(D)). In addition, Montana provides 
for monitoring, recordkeeping, and reporting requirements for sources 
subject to minor and major source permitting
    Furthermore, Montana is required to submit emissions data to the 
EPA for purposes of the National Emissions Inventory (NEI). The NEI is 
the EPA's central repository for air emissions data. The EPA published 
the Air Emissions Reporting Rule (AERR) on December 5, 2008, which 
modified the requirements for collecting and reporting air emissions 
data (73 FR 76539). The AERR shortened the time states had to report 
emissions data from 17 to 12 months, giving states one calendar-year to 
submit emissions data. All states are required to submit a 
comprehensive emissions inventory every three years and report 
emissions for certain larger sources annually through the EPA's online 
Emissions Inventory System. States report emissions data for the six 
criteria pollutants and their associated precursors--nitrogen oxides, 
sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter and 
volatile organic compounds. Many states also voluntarily report 
emissions of hazardous air pollutants. Montana made its latest update 
to the NEI in April 2013. EPA compiles the emissions data, 
supplementing it where necessary, and releases it to the general public 
through the Web site http://www.epa.gov/ttn/chief/eiinformation.html.
    Based on the analysis above, we propose to approve the Montana SIP 
as meeting the requirements of CAA section 110(a)(2)(F) for the 2008 
Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS.
    8. Emergency powers: Section 110(a)(2)(G) of the CAA requires 
infrastructure SIPs to ``provide for authority comparable to that in 
[CAA section 303] and adequate contingency plans to implement such 
authority.''
    Under CAA section 303, the EPA Administrator has authority to bring 
suit to immediately restrain an air pollution source that presents an 
imminent and substantial endangerment to public

[[Page 4235]]

health or welfare, or the environment.\17\ If such action may not 
practicably assure prompt protection, then the Administrator has 
authority to issue temporary administrative orders to protect the 
public health or welfare, or the environment, and such orders can be 
extended if EPA subsequently files a civil suit. We propose to find 
that Montana's infrastructure SIP submittals and certain State statutes 
provide for authority for the State comparable to that granted to the 
EPA Administrator to act in the face of an imminent and substantial 
endangerment to the public's health or welfare, or the environment.
---------------------------------------------------------------------------

    \17\ A discussion of the requirements for meeting CAA section 
303 is provided in our notice of proposed rulemaking: Promulgation 
of State Implementation Plan Revisions; Infrastructure Requirements 
for the 1997 and 2006 PM2.5, 2008 Lead, 2008 Ozone, and 
2010 NO2 National Ambient Air Quality Standards; South Dakota (79 FR 
71040, Dec. 1, 2014) under ``VI. Analysis of State Submittals, 8. 
Emergency powers.''
---------------------------------------------------------------------------

    Montana's SIP submittals with regard to the section 110(a)(2)(G) 
emergency order requirements explain that Montana has an EPA approved 
Emergency Episode Avoidance Plan (EEAP) (71 FR 19, Jan. 3, 2006). 
According to the EEAP, ``the Department shall take the necessary 
precautions to protect public health as set forth in 75-2-402 ,\18\ 
MCA, ``Emergency Powers.'' These precautions include, but are not 
limited to, ordering a halt or curtailment of any operations, 
activities, processes, or conditions the Department believes are 
contributing to the air pollutant emergency episode.'' Additionally, 
under 75-2-111(3) MCA ,\19\ Montana's environmental review board has 
broad authority to ``issue orders necessary to effectuate the 
purposes'' of Chapter 2. Also, under 75-2-112(2)(a) \20\ MCA, the DEQ 
has the authority to use ``appropriate administrative and judicial 
proceedings'' to enforce orders issued by the board. Any air pollution 
discharge that created an emergency situation would constitute a 
violation of the chapter and its purposes, therefore providing the BER 
and the DEQ authority to issue administrative orders to stop discharges 
that cause emergencies effecting welfare and the environment .\21\
---------------------------------------------------------------------------

    \18\ 75-2-402 MCA, Emergency Procedure:
    ``(1) Any other law to the contrary notwithstanding, if the 
department finds that a generalized condition of air pollution 
exists and that it creates an emergency requiring immediate action 
to protect human health or safety, the department shall order 
persons causing or contributing to the air pollution to immediately 
reduce or discontinue the emission of air contaminants. Upon 
issuance of this order, the department shall fix a place and time 
within 24 hours for a hearing to be held before the board. Within 24 
hours after the start of the hearing and without adjournment, the 
board shall confirm, modify, or set aside the order of the 
department.
    (2) Except as provided in subsection (1), if the department 
finds that emissions from the operation of one or more air 
contaminant sources are causing imminent danger to human health or 
safety, it may order the person responsible for the operation in 
question to reduce or discontinue emissions immediately, without 
regard for 75-2-401. In this event, the requirements for hearing and 
confirmation, modification, or setting aside of orders as provided 
in subsection (1) apply.
    (3) This section does not limit any power that the governor or 
any other officer may have to declare an emergency and act on the 
basis of this declaration, whether the power is conferred by statute 
or the constitution or is inherent to the office.''
    \19\ 75-2-111, MCA. Powers of board:
     ``The board shall, subject to the provisions of 75-2-207:
    (1) Adopt, amend, and repeal rules for the administration, 
implementation, and enforcement of this chapter, for issuing orders 
under and in accordance with 42 U.S.C. 7419, and for fulfilling the 
requirements of 42 U.S.C. 7420 and regulations adopted pursuant to 
that section, except that, for purposes other than agricultural open 
burning, the board may not adopt permitting requirements or any 
other rule relating to:
    (a) any agricultural activity or equipment that is associated 
with the use of agricultural land or the planting, production, 
processing, harvesting, or storage of agricultural crops by an 
agricultural producer and that is not subject to the requirements of 
42 U.S.C. 7475, 7503, or 7661a;
    (b) a commercial operation relating to the activities or 
equipment referred to in subsection (1)(a) that remains in a single 
location for less than 12 months and is not subject to the 
requirements of 42 U.S.C. 7475, 7503, or 7661a; or
    (c) forestry equipment and its associated engine used for 
forestry practices that remain in a single location for less than 12 
months and are not subject to the requirements of 42 U.S.C. 7475, 
7503, or 7661a;
    (2) hold hearings relating to any aspect of or matter in the 
administration of this chapter at a place designated by the board. 
The board may compel the attendance of witnesses and the production 
of evidence at hearings. The board shall designate an attorney to 
assist in conducting hearings and shall appoint a reporter who must 
be present at all hearings and take full stenographic notes of all 
proceedings, transcripts of which will be available to the public at 
cost.
    (3) issue orders necessary to effectuate the purposes of this 
chapter;
    (4) by rule require access to records relating to emissions;
    (5) by rule adopt a schedule of fees required for permits, 
permit applications, and registrations consistent with this chapter;
    (6) have the power to issue orders under and in accordance with 
42 U.S.C. 7419.''
    \20\ 75-2-112, MAC, Powers and responsibilities of department.
    ``(1) The department is responsible for the administration of 
this chapter.
    (2) The department shall:
    (a) by appropriate administrative and judicial proceedings, 
enforce orders issued by the board;''
    \21\ See email from David Klemp, Montana State Air Director to 
EPA, Dec. 12, 2015, contained within this docket.
---------------------------------------------------------------------------

    While no single Montana statute mirrors the authorities of CAA 
section 303, we propose to find that the combination of MCA provisions 
discussed above provide for authority comparable to section 303 to 
immediately bring suit to restrain and issue emergency orders for 
applicable emergencies to take prompt administrative action against any 
person causing or contributing to air pollution that presents an 
imminent and substantial endangerment to public health or welfare, or 
the environment. Consistent with EPA's 2013 Infrastructure SIP 
Guidance, the narratives provided in Montana's SIP submittals about the 
State's authorities applying to emergency episodes (as discussed 
above), plus additional Montana statutes that we have considered, we 
propose that they are sufficient to meet the authority requirement of 
CAA section 110(a)(2)(G).
    States must also have adequate contingency plans adopted into their 
SIP to implement the air agency's emergency episode authority (as 
discussed above). This can be done by submitting a plan that meets the 
applicable requirements of 40 CFR part 51, subpart H for the relevant 
NAAQS if the NAAQS is covered by those regulations. EPA approved 
Montana's EEAP in 71 FR 19 (Jan. 3, 2006). We find that Montana's air 
pollution emergency rules include PM10, ozone, 
NO2, and SO2; establish stages of episode 
criteria; provide for public announcement whenever any episode stage 
has been determined to exist; and specify emission control actions to 
be taken at each episode stage, consistent with the EPA emergency 
episode SIP requirements set forth at 40 CFR part 51 subpart H 
(prevention of air pollution emergency episode) for particulate matter, 
ozone, NO2, and SO2.
    As noted in the October 14, 2011 guidance,\22\ based on EPA's 
experience to date with the Pb NAAQS and designating Pb nonattainment 
areas, EPA expects that an emergency episode associated with Pb 
emissions would be unlikely and, if it were to occur, would be the 
result of a malfunction or other emergency situation at a relatively 
large source of Pb. Accordingly, EPA believes the central components of 
a contingency plan would be to reduce emissions from the source at 
issue and communicate with the public as needed. We note that 40 CFR 
part 51, subpart H (51.150-51.152) and 40 CFR part 51, Appendix L do 
not apply to Pb.
---------------------------------------------------------------------------

    \22\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements Required Under Sections 110(a)(1) and 110(a)(2) for 
the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS).'' 
Steve Page, OAQPS Director, October 14, 2011, at p 13.
---------------------------------------------------------------------------

    Based on the above analysis, we propose approval of Montana's SIP 
as

[[Page 4236]]

meeting the requirements of CAA section 110(a)(2)(G) for the 2008 Pb, 
2008 ozone, and 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS.
    9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs 
provide for revision of such plan: (i) From time to time as may be 
necessary to take account of revisions of such national primary or 
secondary ambient air quality standard or the availability of improved 
or more expeditious methods of attaining such standard; and (ii), 
except as provided in paragraph (3)(C), whenever the Administrator 
finds on the basis of information available to the Administrator that 
the SIP is substantially inadequate to attain the NAAQS which it 
implements or to otherwise comply with any additional requirements 
under this [Act].
    Montana's statutory provisions in the Montana CAA at 75-2-101 et 
seq., give the BER sufficient authority to meet the requirements of 
110(a)(2)(H). Therefore, we propose to approve Montana's SIP as meeting 
the requirements of CAA section 110(a)(2)(H).
    10. Consultation with government officials, public notification, 
PSD and visibility protection: Section 110(a)(2)(J) requires that each 
SIP ``meet the applicable requirements of section 121 of this title 
(relating to consultation), section 127 of this title (relating to 
public notification), and part C of this subchapter (relating to PSD of 
air quality and visibility protection).''
    The State has demonstrated that it has the authority and rules in 
place to provide a process of consultation with general purpose local 
governments, designated organizations of elected officials of local 
governments and any Federal Land Manager having authority over federal 
land to which the SIP applies, consistent with the requirements of CAA 
section 121 (see 59 FR 2988, Jan. 20, 1994). Furthermore, Montana's 
Emergency Episode Avoidance Plan, approved into the SIP (71 FR 19, Jan. 
3, 2006), meets the general requirements of CAA section 127.
    Turning to the requirement in section 110(a)(2)(J) that the SIP 
meet the applicable requirements of part C of title I of the Act, EPA 
has evaluated this requirement in the context of infrastructure element 
(C) in section VI.3 above. As discussed there, EPA proposes to 
conditionally approve Montana's infrastructure SIP for the requirement 
in 110(a)(2)(C) that the SIP include a permit program as required in 
part C, on the condition that the State adopts and submits specific 
revisions within one year of EPA's final action on these infrastructure 
submittals; specifically to remove the phrase ``24-hour average'' in 
ARM 17.8.818(7)(a)(iii). For the same reason, EPA proposes to 
conditionally approve Montana's infrastructure SIP with regard to the 
requirement in section 110(a)(2)(J) that the SIP meet the applicable 
requirements of part C of title I the Act.
    Finally, with regard to the applicable requirements for visibility 
protection, EPA recognizes states are subject to visibility and 
regional haze program requirements under part C of the Act. In the 
event of the establishment of a new NAAQS, however, the visibility and 
regional haze program requirements under part C do not change. Thus, we 
find that there are no applicable visibility requirements under section 
110(a)(2)(J) when a new NAAQS becomes effective.
    Based on the above analysis, we propose to approve the Montana SIP 
as meeting the requirements of CAA section 110(a)(2)(J) for the 2008 
Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS with regard to sections 121 and 127 of the CAA, 
and conditional approval of section 110(a)(2)(J) with regard to meeting 
the applicable requirements of part C relating to PSD.
    11. Air quality and modeling/data: Section 110(a)(2)(K) requires 
each SIP provide for: (i) The performance of such air quality modeling 
as the Administrator may prescribe for the purpose of predicting the 
effect on ambient air quality of any emissions of any air pollutant for 
which the Administrator has established a NAAQS; and (ii) the 
submission, upon request, of data related to such air quality modeling 
to the Administrator.
    Montana's PSD program (see ARM 17.8.821(1)) requires estimates of 
ambient air concentrations be based on applicable air quality models 
specified in Appendix W of 40 CFR part 51, pertaining to the Guidelines 
on Air Quality Models. Additionally, MCA 75-2-211. Powers of board and 
MCA 75-2-112. Powers and responsibilities of department, provide 
Montana with the broad authority to develop and implement an air 
quality control program that includes conducting air quality modeling 
to predict the effect on ambient air quality of any emissions of any 
air pollutant for which a NAAQS has been promulgated.\23\ As a result, 
the SIP provides for such air quality modeling as the Administrator has 
prescribed with respect to the SIP outside of the nonattainment areas.
---------------------------------------------------------------------------

    \23\ See email from David Klemp, Montana State Air Director, to 
EPA on Dec. 12, 2015, contained within this docket.
---------------------------------------------------------------------------

    Therefore, we propose to approve the Montana SIP as meeting the CAA 
section 110(a)(2)(K) for the 2008 Pb, 2008 ozone, 2010 NO2, 
2010 SO2 and 2012 PM2.5 NAAQS.
    12. Permitting fees: Section 110(a)(2)(L) requires the owner or 
operator of each major stationary source to pay to the permitting 
authority, as a condition of any permit required under this act, a fee 
sufficient to cover: (i) The reasonable costs of reviewing and acting 
upon any application for such a permit; and (ii) if the owner or 
operator receives a permit for such source, the reasonable costs of 
implementing and enforcing the terms and conditions of any such permit 
(not including any court costs or other costs associated with any 
enforcement action), until such fee requirement is superseded with 
respect to such sources by the Administrator's approval of a fee 
program under title V.
    Montana requires an applicant proposing to construct or modify an 
air pollution source to pay an application fee, ARM 17.8.504 (State 
rule only). Sources must also pay an annual operation fee, ARM 17.8.505 
(State rule only). Under ARM 17.8.823(1), Source Information for PSD of 
air quality, ``(1) The owner or operator of a proposed source or 
modification shall submit the permit application fee required pursuant 
to ARM 17.8.504 and all information necessary to perform any analysis 
or make any determination required under procedures established in 
accordance with this subchapter.'' ARM 17.8.823 was adopted into 
Montana's SIP on August 13, 2001 (66 FR 42427). Additionally, ARM 
17.8.1704, Registration Fees, for oil and gas facilities states that 
``(1) The registration fee required by ARM 17.8.504 must be submitted 
to the department with each registration submitted under this 
subchapter. No fee is required for notifying the department, pursuant 
to ARM 17.8.1703(4), of changes to registration information. (2) The 
registration fee must be paid in its entirety at the time the 
registration form is submitted to the department.'' ARM 17.8.1703 was 
adopted into the Montana SIP on November 19, 2013 (78 FR 69296).
    We also note that all the State SIPs we are proposing to approve in 
this action cite the regulation that provides for collection of 
permitting fees under Montana's approved title V permit program (65 FR 
37049, June 13, 2000). As discussed in that approval, the State 
demonstrated that the fees collected were sufficient to administer the 
program.

[[Page 4237]]

    Therefore, based on the State's experience in relying on the funds 
collected through application and processing fees at ARM 17.8.504 and 
ARM 17.8.505, and the use of title V fees to implement and enforce PSD 
permits once they are incorporated into title V permits, we propose to 
approve the submissions as supplemented by the State for the 2008 Pb, 
2008 ozone, 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS.
    13. Consultation/participation by affected local entities: Section 
110(a)(2)(M) requires states to provide for consultation and 
participation in SIP development by local political subdivisions 
affected by the SIP.
    The statutory and other provisions cited in Montana's SIP 
submittals (Section 75-2-112(2)(j) of the MT CAA, ARM 17.8.140, 
17.8.141 and 17.8.142, contained within this docket) meet the 
requirements of CAA section 110(a)(2)(M), so we propose to approve 
Montana's SIP as meeting these requirements for the 2008 Pb, 2008 
ozone, 2010 NO2, 2010 SO2 and 2012 
PM2.5 NAAQS.

VII. What action is EPA taking?

    In this action, EPA is proposing to approve infrastructure elements 
for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 
and 1997, 2006 and 2012 PM2.5 NAAQS from the State's 
certifications as shown in Table 2. EPA is proposing conditional 
approval of elements (C), D(i)(II) element 3 and (J) with respect to 
the requirement to have a PSD program that meets the requirements of 
part C of Title 1 of the Act as shown in Table 3. Elements we propose 
no action on are reflected in Table 5. EPA is proposing to disapprove 
(D)(i)(II) element 4 for the 2006 PM2.5, 2008 ozone, 2010 
NO2, 2010 SO2, and 2012 PM2.5 NAAQS 
(Table 4). As noted, finalization of this disapproval would not require 
further action from the State, and does not create a new FIP obligation 
for EPA. We also propose to approve revisions to the ARM from the 
August 21, 2012 submittal (Table 2) and conditionally approve a 
revision from the March 24, 2015 submittal (Table 3) to bring Montana's 
PSD program up to date with respect to current requirements for 
PM2.5. If Montana does not submit a SIP revision to correct 
the language in ARM 17.8.818(7)(a)(iii) within one year of EPA's final 
action on these infrastructure submittals, conditional approvals will 
automatically revert to disapprovals for ARM 17.8.818(7)(a)(iii), and 
elements (C), D(i)(II) element 3 and (J) with respect to PSD 
requirements. Finally, EPA is proposing to approve new ARM submitted on 
December 17, 2015 to satisfy requirements of element (E)(ii), state 
boards.
    A comprehensive summary of infrastructure elements, and revisions 
and additions to the ARM organized by EPA's proposed rule action are 
provided in Table 2, Table 3, Table 4 and Table 5.

 Table 2--List of Montana Infrastructure Elements and Revisions That EPA
                         Is Proposing To Approve
------------------------------------------------------------------------
                          Proposed for approval
-------------------------------------------------------------------------
February 10, 2010 submittal--1997 and 2006 PM2.5 NAAQS:
    (D)(ii) for both the 1997 and 2006 PM2.5 NAAQS.
December 19, 2011 submittal--2008 Pb NAAQS:
    (A), (B), (C) with respect to minor NSR requirements, (D)(i)(I)
     elements 1 and 2, (D)(i)(II) element 4, (D)(ii), (E), (F), (G),
     (H), (J) with respect to requirements of sections 121 and 127, (K),
     (L) and (M).
January 3, 2013 submittal--2008 Ozone NAAQS:
    (A), (B), (C) with respect to minor NSR requirements, (D)(ii), (E),
     (F), (G), (H), (J) with respect to requirements of sections 121 and
     127, (K), (L) and (M).
June 4, 2013 submittal--2010 NO2 NAAQS:
    (A), (B), (C) with respect to minor NSR requirements, (D)(i)(I)
     elements 1 and 2, (D)(ii), (F), (G), (H), (J) with respect to
     requirements of sections 121 and 127, (K), (L) and (M).
July 15, 2013 submittal--2010 SO2 NAAQS:
    (A), (B), (C) with respect to minor NSR requirements, (D)(ii), (F),
     (G), (H), (J) with respect to requirements of sections 121 and 127,
     (K), (L) and (M).
December 17, 2015 submittal--2012 PM2.5 NAAQS:
    (A), (B), (C) with respect to minor NSR requirements, (D)(ii), (F),
     (G), (H), (J) with respect to requirements of sections 121 and 127,
     (K), (L) and (M).
August 21, 2012 submittal--Revisions to ARM, Prevention of Significant
 Deterioration:
    ARM 17.8.801(3), 17.8.801(21), 17.8.801(27), 17.8.804(1),
     17.8.818(7)(a)(iv)-(xi), 17.8.822(9), 17.8.822(10), 17.8.822(11),
     17.8.822(12) and 17.8.825(4).
December 17, 2015 submittal--New Rules to ARM, CAA Section 128
    New Rule I (ARM 17.8.150), II (ARM 17.8.151) and III (ARM 17.8.152).
------------------------------------------------------------------------

 Table 3--List of Montana Infrastructure Elements and Revisions That EPA
                  Is Proposing To Conditionally Approve
------------------------------------------------------------------------
                    Proposed for conditional approval
-------------------------------------------------------------------------
February 10, 2010 submittal--1997 and 2006 PM2.5 NAAQS:
    (D)(i)(II) element 3 for the 2006 PM2.5 NAAQS.
December 19, 2011 submittal--2008 Pb NAAQS:
    (C) and (J) with respect to PSD, and (D)(i)(II) element 3.
January 3, 2013 submittal--2008 Ozone NAAQS:
    (C) and (J) with respect to PSD, and (D)(i)(II) element 3.
June 4, 2013 submittal--2010 NO2 NAAQS:
    (C) and (J) with respect to PSD, and (D)(i)(II) element 3.
July 15, 2013 submittal--2010 SO2 NAAQS:
    (C) and (J) with respect to PSD, and (D)(i)(II) element 3.
December 17, 2015 submittal--2012 PM2.5 NAAQS:
    (C) and (J) with respect to PSD, and (D)(i)(II) element 3.

[[Page 4238]]

 
March 24, 2015 submittal--Revisions to ARM, Prevention of Significant
 Deterioration:
    ARM 17.8.818(7)(a)(iii).
------------------------------------------------------------------------

 Table 4--List of Montana Infrastructure Elements That EPA Is Proposing
                              To Disapprove
------------------------------------------------------------------------
                        Proposed for disapproval
-------------------------------------------------------------------------
February 10, 2010 submittal--1997 and 2006 PM2.5 NAAQS:
    (D)(i)(II) element 4 for the 2006 PM2.5 NAAQS.
January 3, 2013 submittal--2008 Ozone NAAQS:
    (D)(i)(II) element 4.
June 4, 2013 submittal--2010 NO2 NAAQS:
    (D)(i)(II) element 4.
July 15, 2013 submittal--2010 SO2 NAAQS:
    (D)(i)(II) element 4.
December 17, 2015 submittal--2012 PM2.5 NAAQS:
    (D)(i)(II) element 4.
------------------------------------------------------------------------

    Table 5--List of Montana Infrastructure Elements and Revisions That EPA Is Proposing To Take No Action on
                                            [Proposed for no action]
----------------------------------------------------------------------------------------------------------------
                                                               Reason for proposed ``No Action''
                                             -------------------------------------------------------------------
                                                                                    Revision
                                               Revision to be   Revision made       deletes          Revision
               Revised section                 made in future   in a separate    section of the   superseded by
                                                 rulemaking       rulemaking       ARM never       revision in
                                                   action       action  (80 FR   approved into    March 24, 2015
                                                                    72937)        State's SIP    State submittal
----------------------------------------------------------------------------------------------------------------
January 3, 2013 submittal--2008 Ozone NAAQS:
    (D)(i)(I) elements 1 and 2..............  ...............               x   ...............  ...............
July 15, 2013 submittal--2010 SO2 NAAQS:
    (D)(i)(I) elements 1 and 2..............               x   ...............  ...............  ...............
December 17, 2015 submittal--2012 PM2.5
 NAAQS:
    (D)(i)(I) elements 1 and 2..............               x   ...............  ...............  ...............
August 21, 2012 submittal--Revisions to ARM,
 Prevention of Significant Deterioration:
    ARM 17.8.818(7)(a)(iii).................  ...............  ...............  ...............               x
    ARM 17.8.820(2).........................  ...............  ...............  ...............               x
March 24, 2015 submittal--Revisions to ARM,
 Prevention of Significant Deterioration:
    ARM 17.8.820(2).........................  ...............  ...............               x   ...............
----------------------------------------------------------------------------------------------------------------

VIII. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference the Administrative Rules of Montana pertaining to major 
source permitting and PM2.5 emission limits discussed in 
section VI. 3. Program for enforcement of control measures and section 
VI. b. Sub-element (ii): State boards, of this preamble. The EPA has 
made, and will continue to make, these documents generally available 
electronically through www.regulations.gov and/or in hard copy at the 
appropriate EPA office (see the ADDRESSES section of this preamble for 
more information).

IX. Statutory and Executive Orders Review

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves some state law as meeting federal 
requirements and disapproves other state law because it does not meet 
federal requirements; this proposed action does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, Oct. 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described

[[Page 4239]]

in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, Aug. 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and,
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, Feb. 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications and will not impose substantial direct 
costs on tribal governments or preempt tribal law as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Greenhouse 
gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: January 12, 2016.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2016-01403 Filed 1-25-16; 8:45 am]
BILLING CODE 6560-50-P
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