758 Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules 

of required permits, imposing undue 

costs on small sources; which would 

overwhelm Connecticut’s permitting 

resources and severely impair the 

function of the program. 

The State’s December 9, 2010, 

proposed SIP revision: (1) Provides the 

State with the authority to regulate GHG 

under the PSD program of the CAA, and 

(2) establishes thresholds for 

determining which stationary sources 

and modification projects become 

subject to permitting requirements for 

GHG emissions under the PSD program. 

Specifically, Connecticut’s December 9, 

2010, proposed SIP revision includes 

proposed changes to Regulations of 

Connecticut State Agencies, section 

22a–174–1, by adding definitions for 

‘‘carbon dioxide equivalent emissions’’ 

and ‘‘greenhouse gases.’’ The proposed 

SIP revision also addresses the 

thresholds for GHG permitting 

applicability and implementation 

through changes proposed to 

Connecticut’s PSD regulations at section 

22a–174–3a. 

The State of Connecticut is currently 

a SIP-approved state for the PSD 

program. However, Connecticut does 

not interpret its current rules, which are 

generally consistent with the federal 

rules, to be automatically updating to 

include newly designated regulated air 

pollutants such as GHG. In a letter 

provided to EPA on July 20, 2010, 

Connecticut notified EPA that the State 

does not currently have the authority to 

regulate GHG and thus is in the process 

of revising its regulation (the subject of 

this proposed action) to provide this 

authority. To provide this authority, 

Connecticut is adding definitions of 

‘‘carbon dioxide equivalent emissions’’ 

and ‘‘greenhouse gases’’ to section 22a– 

174–1, and revising PSD applicability 

and BACT requirements in section 22a– 

174–3a, to explicitly regulate GHG 

under the CAA. EPA has preliminarily 

determined that this change to 

Connecticut’s regulation is consistent 

with the CAA and its implementing 

regulations regarding GHG. 

The changes included in 

Connecticut’s PSD program are 

substantively the same as EPA’s 

Tailoring Rule. The Connecticut rules 

have been developed to conform to the 

structure of Connecticut’s rule in 

section 22a–174–3a, but in substantive 

content the rules that address the 

Tailoring Rule provisions are the same 

as the federal rules. As part of its review 

of the Connecticut submittal, EPA 

performed a line-by-line review of 

Connecticut’s proposed changes to its 

regulations and concluded the state’s 

proposed regulations are consistent with 

the Tailoring Rule. 

V. Proposed Action 

Pursuant to section 110 of the CAA, 

EPA is proposing to approve the State 

of Connecticut’s December 9, 2010, 

proposed SIP revision, relating to PSD 

requirements for GHG-emitting sources. 

Specifically, Connecticut’s December 9, 

2010, proposed SIP revision: (1) 

Provides the State with the authority to 

regulate GHGs under its PSD program, 

and (2) establishes appropriate 

emissions thresholds for determining 

PSD applicability to new and modified 

GHG-emitting sources in accordance 

with EPA’s Tailoring Rule. EPA has 

made the preliminary determination 

that this SIP revision is approvable 

because it is in accordance with the 

CAA and EPA regulations regarding 

PSD permitting for GHGs. 

VI. Statutory and Executive Order 

Reviews 

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 the State’s law 

as meeting federal requirements and 

does not impose additional 

requirements beyond those imposed by 

the State’s 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, 

October 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 

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, August 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, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

and Reporting and recordkeeping 

requirements. 

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

Dated: December 22, 2010. 

H. Curtis Spalding, 

Regional Administrator, EPA New England. 

[FR Doc. 2011–17 Filed 1–5–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2007–0662; FRL–9248–2] 

Disapproval and Promulgation of Air 

Quality Implementation Plans; 

Montana; Revisions to the 

Administrative Rules of Montana—Air 

Quality, Subchapter 7, Subchapter 16 

and Subchapter 17 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to 

disapprove portions of revisions and 

new rules as submitted by the State of 

Montana on October 16, 2006 and 

November 1, 2006. Montana adopted 

these rules on December 2, 2005 and 

March 23, 2006 and these rules became 

State-effective on January 1, 2006. These 

revisions and new rules do not meet the 

requirements of the Clean Air Act and 

EPA’s Minor New Source Review (NSR) 

regulations. EPA has concluded that 

none of the identified elements for the 

submitted revisions and new rules are 


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severable from each other. The intended 

effect of this action is to propose to 

disapprove these rules as they are 

inconsistent with the Clean Air Act. 

This action is being taken under section 

110 of the Clean Air Act. 

DATES: Comments must be received on 

or before February 7, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08– 

OAR–2007–0662, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• E-mail: leone.kevin@epa.gov. 

• Fax: (303) 312–6064 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT if you are faxing 

comments). 

• Mail: Callie A. Videtich, Director, 

Air Program, Environmental Protection 

Agency (EPA), Region 8, Mailcode 8P– 

AR, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129. 

• Hand Delivery: Callie A. Videtich, 

Director, Air Program, Environmental 

Protection Agency (EPA), Region 8, 

Mailcode 8P–AR, 1595 Wynkoop Street, 

Denver, Colorado 80202–1129. Such 

deliveries are only accepted Monday 

through Friday, 8 a.m. to 4:30 p.m., 

excluding Federal holidays. Special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R08–OAR–2007– 

0662. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

http://www.regulations.gov, including 

any personal information provided, 

unless the comment includes 

information claimed to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Do not submit 

information that you consider to be CBI 

or otherwise protected through 

http://www.regulations.gov or e-mail. 

The http://www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an e-mail 

comment directly to EPA, without going 

through http://www.regulations.gov, 

your e-mail address will be 

automatically captured and included as 

part of the comment that is placed in the 

public docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http://www.

epa.gov/epahome/dockets.htm. For 

additional instructions on submitting 

comments, go to Section I. General 

Information of the SUPPLEMENTARY

INFORMATION section of this document. 

Docket: All documents in the docket 

are listed in the 

http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publiclyavailable docket materials are available 

either electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. EPA requests that if at all 

possible, you contact the individual 

listed in the FOR FURTHER INFORMATION

CONTACT section to view the hard copy 

of the docket. You may view the hard 

copy of the docket Monday through 

Friday, 8 a.m. to 4 p.m., excluding 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Kevin Leone, Air Program, Mailcode 

8P–AR, Environmental Protection 

Agency, Region 8, 1595 Wynkoop 

Street, Denver, Colorado 80202–1129, 

(303) 312–6227, or leone.kevin@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. General Information 

II. What is being addressed in this document? 

III. EPA Review and Proposed Action on SIP 

Revisions 

IV. Summary of EPA’s Proposed Action 

V. Statutory and Executive Order Reviews 

Definitions 

For the purpose of this document, we 

are giving meaning to certain words or 

initials as follows: 

(i) The words or initials Act or CAA 

mean or refer to the Clean Air Act, 

unless the context indicates otherwise. 

(ii) The words EPA, we, us or our 

mean or refer to the United States 

Environmental Protection Agency. 

(iii) Minor NSR means NSR 

established under section 110 of the Act 

and 40 CFR 51.160. 

(iv) NSR means new source review, a 

phrase intended to encompass the 

stationary source regulatory programs 

that regulate the construction and 

modification of stationary sources as 

provided under CAA section 

110(a)(2)(C), CAA Title I, parts C and D, 

and 40 CFR 51.160 through 51.166. 

(v) The initials SIP mean or refer to 

State Implementation Plan. 

(vi) The words State or Montana 

mean the State of Montana, unless the 

context indicates otherwise. 

(vii) NAAQS means National Ambient 

Air Quality Standards. 

I. General Information 

A. What should I consider as I prepare 

my comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through 

http://www.regulations.gov or e-mail. 

Clearly mark the part or all of the 

information that you claim to be CBI. 

For CBI information in 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: 

a. Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

b. Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

c. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

d. Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

e. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

f. Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

g. Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 


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h. Make sure to submit your 

comments by the comment period 

deadline identified. 

II. What is being addressed in this 

document? 

On October 16, 2006, the State of 

Montana submitted revisions to revise 

the Montana State Implementation Plan 

(SIP) and rules. This submission 

contained revisions to Administrative 

Rules of Montana (ARM) 17.8.743(1), 

and new rules I–VI, codified as ARM 

17.8.1601, 17.8.1602, 17.8.1603, 

17.8.1604, 17.8.1605, and 17.8.1606, 

pertaining to the regulation of oil and 

gas well facilities, and 17.8.759, 

pertaining to Montana air quality permit 

applicability. The revisions to ARM 

17.8.743(1), 17.8.1601, 17.8.1602, 

17.8.1603, 17.8.1604, 17.8.1605, and 

17.8.1606 provide, generally, that an 

owner or operator of an oil and gas well 

facility for which a Montana air quality 

permit is required may wait until 60 

days after the well completion date 

before submitting an application for a 

permit. EPA is proposing to act on the 

revisions to these seven regulations in 

this notice. The Montana Board of 

Environmental Review (Board) adopted 

these revisions to existing SIP revisions 

and new rules on December 2, 2005. 

ARM 17.8.759 is being addressed in a 

separate action (see 75 FR 9834–9843). 

The submission also contains revisions 

to ARM 17.8.1402 pertaining to 

incorporation by reference. This 

revision was addressed by EPA in a 

previous action (see 75 FR 3993–3996). 

In addition to these revisions, on 

October 16, 2006, Montana is also 

withdrawing ARM 17.8.743(1)(c) 

regarding the applicability of 

incinerators in the Montana air 

pollution program rules. ARM 

17.8.743(1)(c) was inadvertently 

included in the submission dated May 

28, 2003. The Board adopted ARM 

17.8.743(1)(c) on December 6, 2002. 

On November 1, 2006, the State of 

Montana submitted revisions to revise 

the Montana SIP and rules. This 

submission contained revisions to ARM 

17.8.504, 17.8.505, 17.8.744, 17.8.1204 

and new rules I–IX, codified as ARM 

17.8.1701, 17.8.1702, 17.8.1703, 

17.8.1704, 17.8.1705,17.8.1710, 

17.8.1711, 17.8.1712 and 17.8.1713 

pertaining to the regulation of oil and 

gas well facilities. The revision to ARM 

17.8.504 pertains to air quality permit 

application fees; ARM 17.8.505 pertains 

to air quality operation fees; ARM 

17.8.744(l) provides that a Montana air 

quality permit is not required for 

facilities that register with the 

department in accordance with ARM 

17.8.17; and ARM 17.8.1204 addresses 

air quality operating permit program 

applicability. The Board adopted these 

new rules and rule amendments on 

March 23, 2006. EPA is proposing to act 

on all these rule submissions in this 

action. 

EPA notes that ARM 17.8.1204 

(regarding Air Quality Operating Permit 

Program Applicability) and ARM 

17.8.505 (regarding Air Quality 

Operation Fees) are part of the Title V 

and Part 70 regulations which we do not 

approve into the SIP. Instead, we 

approve operating permit regulations 

under our operating permit regulations 

at 40 CFR part 70. Thus, we intend to 

consider approval of Montana’s 

proposed Part C revisions pursuant to 

our part 70 regulations at such time as 

Montana submits an appropriate request 

under 40 CFR 70.4(i). The revisions are 

meaningless absent their regulatory 

context, and that regulatory context is 

not part of the EPA-approved SIP and is 

not incorporated by reference into 40 

CFR part 52. Instead, the approval status 

of Montana’s part 70 Program is 

reflected in 40 CFR part 70, Appendix 

A. Thus, because we are obligated to act 

on SIP submissions, we plan to 

disapprove these revisions as a revision 

to Montana’s SIP. If the State requests to 

withdraw part C from the SIP revision 

prior to the time we take final action, we 

would not be obligated to take final 

action because part C would no longer 

be pending before the Agency as a SIP 

revision. Additionally, if requested by 

the State, we will separately consider 

these revisions as a revision to the 

approved operating permit program for 

the State. 

The November 1, 2006 submission 

also contains revisions to the following 

rules: ARM 17.8.101, ARM 17.8.102, 

ARM 17.8.103, ARM 17.8.302, ARM 

17.8.767, ARM 17.8.801, ARM 17.8.802, 

ARM 17.8.818, ARM 17.8.902 and ARM 

17.8.1002 pertaining to incorporation by 

reference of current federal regulations 

and other materials into air quality 

rules. EPA is not acting on these rule 

submissions. These revisions were 

addressed by EPA in a previous action 

(see 75 FR 3993–3996). 

These proposed amendments to 

existing new rules and adoption of new 

rules listed above that are the subject of 

this notice, hereafter referred to as ‘‘the 

Program,’’ would establish a registration 

system for certain facilities that 

presently require a minor NSR air 

quality permit under the SIP 

regulations. The Program would 

establish a general registration system 

for oil and gas well facilities. The 

Program would allow the owner or 

operator of an oil or gas well facility to 

register with the Montana Department of 

Environmental Quality (MDEQ) in lieu 

of submitting a permit application and 

obtaining a permit to construct or 

modify the source. Currently, with 

specific exemptions, the administrative 

rules adopted under the CAA of 

Montana and approved by EPA into the 

SIP, require the owner or operator of 

sources of air pollution to obtain a 

permit prior to construction or 

modification. 

III. EPA Review and Proposed Action 

on SIP Revisions 

EPA is proposing to disapprove the 

revisions and new rules as submitted by 

Montana on October 16, 2006 and 

November 1, 2006, as identified above. 

Section 110(a)(2)(C) of the Act 

requires that each implementation plan 

include a program to regulate the 

construction and modification of 

stationary sources, including a permit 

program as required by parts C and D of 

title I of the Act, as necessary to assure 

that the NAAQS are achieved. Parts C 

and D, which pertain to prevention of 

significant deterioration (PSD) and 

nonattainment, respectively, address 

major NSR programs for stationary 

sources, and the permitting program for 

‘‘nonmajor’’ (or ‘‘minor’’) stationary 

sources is addressed by section 

110(a)(2)(C) of the Act. We generally 

refer to the latter program as the ‘‘minor 

NSR’’ program. A minor stationary 

source is a source whose ‘‘potential to 

emit’’ is lower than the major source 

applicability threshold for a particular 

pollutant defined in the applicable 

major NSR program. 

Therefore, we evaluated the submitted 

revisions and new rules using the 

federal regulations under CAA section 

110(a)(2)(C), which require each State to 

include a minor NSR program in its SIP. 

EPA regulations require that a minor 

NSR program include: 

• A plan that includes ‘‘legally 

enforceable procedures that enable’’ the 

permitting agency to determine whether 

a minor source will cause or contribute 

to violations of applicable portions of 

the control strategy, 40 CFR 

51.160(a)(1). 

• A plan that sets forth legally 

enforceable procedures that enable the 

State to determine whether the minor 

source will result in ‘‘interference with 

a national ambient air quality standard,’’ 

40 CFR 51.160(a)(2) and, to prevent the 

source from doing so, 40 CFR 51.160(b). 

• A plan that includes a discussion of 

‘‘the basis for determining which 

facilities will be subject to review,’’ 40 

CFR 51.160(e). 

• A plan that includes a discussion of 

‘‘the air quality data and the dispersion 

or other air quality modeling used’’ to 


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meet the requirements of EPA 

regulations 40 CFR 51.160(f). 

In addition, we reviewed the State’s 

regulations for compliance with the Act. 

Generally, SIPs must be enforceable (see 

section 110(a) of the Act) and must not 

relax existing SIP requirements (see 

section 110(l) and 193 of the Act). 

EPA has issued several guidance 

memoranda that explain the Agency’s 

requirements for practicable 

enforceability for purposes of effectively 

limiting a source’s potential to emit. 

See, e.g., June 13, 1989 Memorandum 

entitled, ‘‘Guidance on Limiting 

Potential to Emit in New Source 

Permitting, from Terrell F. Hunt, 

Associate Enforcement Counsel, OECA, 

and John Seitz, Director, OAQPS, to 

EPA Regional Offices. Further guidance 

was provided on January 25, 1995 in a 

memorandum entitled, ‘‘Options for 

Limiting the Potential to Emit (PTE) of 

a Stationary Source Under Section 112 

and Title V of the Clean Air Act (Act),’’ 

from John Seitz, Director, OAQPS and 

Robert I. Van Heuvelen, Director, ORE 

to Regional Air Directors. Although the 

latter memo applies to stationary 

sources subject to CAA Section 112 and 

Title V, we are citing this notice for the 

general practicable enforceability 

principles. 

For example, as presented in the 

guidance, practicable enforceability for 

a source-specific permit means that the 

permit’s provisions must, at a 

minimum: 

(1) Include technically accurate 

emission limitations; 

(2) Specify the time period for the 

limitation (hourly, daily, monthly, 

annually); 

(3) Specify the method for 

determining compliance including 

appropriate monitoring, recordkeeping 

and reporting (MRR); 

(4) Identify the category of sources 

that are covered by the rule; 

(5) Where coverage is optional, 

provide for notice to the permitting 

authority of the source’s election to be 

covered by the rule; and 

(6) Recognize the enforcement 

consequences relevant to the rule. 

EPA reviewed the proposed new rules 

against the six criteria mentioned above. 

This review, which is also discussed in 

a memo from Richard R. Long, Director, 

Region 8 Air and Radiation Program, to 

the Board on January 30, 2006 (Long 

memo), includes: 

a. Specific applicability. The Rules 

must clearly identify the category of 

sources that qualify for the rule’s 

coverage. 

b. Reporting or notice to permitting 

authority. The rule should provide that 

a source notify the permitting authority 

of its coverage by the rule. 

c. Specific technically accurate 

emission limits. The rule must clearly 

specify the emission limits that apply, 

and include the specific associated 

compliance monitoring. A rule that 

allows sources to submit the specific 

parameters and associated emission 

limits to be monitored may not be 

enforceable because the rule itself does 

not set specific emission limits. 

d. Specific compliance monitoring. 

The rule must specify the methods to 

determine compliance. Specifically, the 

rule must state the monitoring 

requirements, recordkeeping 

requirements, reporting requirements 

and test methods as appropriate. 

e. Practically enforceable averaging 

times. The averaging time period must 

readily allow for determination of 

compliance. 

f. Clearly recognized enforcement. 

Violations of the emission thresholds 

imposed by the rule constitute 

violations of permitting and SIP 

requirements. 

Section 110(a)(2)(A) of the Act and 40 

CFR 51.160(a)(1) requires that SIP 

revision submittals be enforceable. The 

September 23, 1987, Memorandum from 

J. Craig Potter, Assistant Administrator 

for Air and Radiation, and Thomas L. 

Adams Jr., Assistant Administrator for 

Enforcement and Compliance 

Monitoring, entitled ‘‘Review of State 

Implementation Plans and Revisions for 

Enforceability and Legal Sufficiency’’ 

provides EPA’s guidance for 

interpreting this provision in the Act. 

EPA proposes to find that the proposed 

new and modified rules do not meet the 

requirements of section 110(a)(2), which 

require that SIP revision submittals be 

enforceable. First, there are no specific 

up-front methodologies in the submitted 

Program for the State to use to be able 

to determine whether a source covered 

by these rules is in compliance with 40 

CFR 51.160. The Program fails to meet 

the enforceability requirements to 

assure compliance. This is because there 

are no specific limits to limit 

production, hours of operation, fuel 

consumption, etc. to ensure the facility’s 

potential to emit remains below major 

source thresholds for any particular 

pollutant. Second, while ARM 

17.8.1705, codified as New Rule V, 

requires that the owner or operator of a 

registered facility shall monitor and 

record annual production information 

for all emission points and maintain 

onsite records showing daily hours of 

operation and daily production rates, 

17.8.1705 does not have any specific 

limits that limit the potential to emit. 

Thus, EPA finds that the testing, 

recordkeeping, reporting, and 

monitoring provisions necessary to 

establish how compliance will be 

determined and to ensure that the 

NAAQS are protected are insufficient. 

The rule must clearly specify the 

emission limits that apply, and include 

the necessary more specialized 

monitoring, recordkeeping, and 

reporting (MRR) requirements required 

for an oil and gas registration program 

to ensure accountability and provide a 

means to determine compliance. The 

submitted Program is generic 

concerning MRR. For example, ARM 

17.8.1705 requires that the owner or 

operator of a registered facility shall 

monitor and record annual production 

information for all emission points, as 

required by the MDEQ in the annual 

emission inventory request. ARM 

17.8.1605 (Recordkeeping requirements) 

only requires that the owner or operator 

of an oil and gas well facility shall 

record, and maintain onsite or at a 

central field office, a record of each 

monthly inspection. There are no 

specific limits to limit potential to emit 

and there are no specific up front 

methodologies specified in this rule to 

determine compliance. 

The submitted Program is generic 

concerning the types of monitoring that 

are required, rather than identifying the 

application of specific monitoring 

approaches, providing the technical 

specifications for each of the specific 

allowable monitoring systems, and 

requiring replicable procedures for the 

approval of any alternative monitoring 

system (January 25, 1995 memo from 

Kathie A. Stein, Director Air 

Enforcement Division entitled 

‘‘Guidance on Practicable 

Enforceability’’). The Program also lacks 

the replicable procedures that are 

necessary to ensure that (1) adequate 

monitoring is required that would 

accurately determine emissions under 

the Program; (2) the Program is based 

upon sound science and meets generally 

acceptable scientific procedures for data 

quality and manipulation; and (3) the 

information generated by such system 

meets minimum legal requirements for 

admissibility in a judicial proceeding to 

enforce the Program (September 23, 

1987, Memorandum from J. Craig Potter, 

Assistant Administrator for Air and 

Radiation, and Thomas L. Adams Jr., 

Assistant Administrator for Enforcement 

and Compliance Monitoring, entitled 

‘‘Review of State Implementation Plans 

and Revisions for Enforceability and 

Legal Sufficiency’’). For example: ARM 

17.8.1604 and 17.8.1712 require the 

source to inspect monthly all VOC 

piping components for leaks and repair 

such leaks within a specific period of 


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762 Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules 

time. The rule should specify methods 

more sophisticated than sight, sound 

and smell to detect leaks; for example, 

field gas chromatography; photo 

ionization air monitoring; or portable 

gas detection instrumentation. 

Additionally, ARM 17.8.1713(4) 

requires the owner or operator of a 

registration oil or gas well facility with 

a ‘‘detectible level of hydrogen sulfide 

from the well’’ to submit an ‘‘air quality 

analysis demonstrating compliance’’ 

with the ambient standards for SO2 and 

hydrogen sulfide. The regulation is 

ambiguous and provides no information 

regarding what should go in such a 

demonstration. The Program should also 

ensure consistency and accuracy in the 

calculations that oil and gas well 

facilities conduct, for example by 

including the calculations in the rule or 

referencing specific AP–42 air pollutant 

emission factors or American Society for 

Testing Materials (ASTM) methods to 

determine emissions from the various 

emission units at the oil and gas well 

facility. 

Because of the reasons stated above, 

EPA finds the MRR requirements in the 

Program fail to ensure attainment and 

maintenance of the NAAQS are 

protected. The Program lacks language 

requiring the owner or operator to 

maintain the proper MRR, which would 

allow the State to be able to determine 

if there was an adverse impact on air 

quality. 

Even if the rules were federally 

enforceable as required by CAA section 

110(a)(2)(C), the rule must also be 

enforceable as a practical matter. EPA’s 

review of these proposed revisions also 

focused on whether these revisions are 

enforceable as a practical matter. If 

limitations imposed by SIP rules are 

incomplete, vague, or nonexistent, 

enforcement by the States, citizens and 

EPA would not be effective. Emission 

limitations must be of sufficient quality 

and quantity to ensure accountability. 

EPA has issued several guidance 

documents explaining the requirements 

of practicable enforceability (e.g., June 

13, 1989 Memorandum entitled, 

‘‘Guidance on Limiting Potential to Emit 

in New Source Permitting, from Terrell 

F. Hunt, Associate Enforcement 

Counsel, OECA, and John Seitz, 

Director, OAQPS, to EPA Regional 

Offices. Further guidance was provided 

on January 25, 1995 in a memorandum 

entitled, ‘‘Options for Limiting the 

Potential to Emit (PTE) of a Stationary 

Source Under Section 112 and Title V 

of the Clean Air Act (Act),’’ from John 

Seitz, Director, OAQPS and Robert I. 

Van Heuvelen, Director, ORE to 

Regional Air Directors). 

The standard of review in this 

instance is a determination whether the 

submitted Program has sufficient 

practically enforceable procedures that 

enable the permitting agency to 

determine whether a minor source will 

cause or contribute to violations of 

applicable portions of the NAAQS and 

the control strategy as required in 40 

CFR 51.160. In the Long memo, EPA 

expressed concerns that, among other 

things, the submitted Program lacks the 

appropriate practically enforceable 

averaging times in order to determine 

compliance. EPA policy expresses a 

preference for short term limits, 

generally daily, but not to exceed one 

month (January 25, 1995 memo from 

Kathie A. Stein, Director Air 

Enforcement Division entitled 

‘‘Guidance on Practicable 

Enforceability’’). ARM17.8.1705 only 

requires the owner or operator of a 

registered facility to monitor and record 

annual production information, as 

required by MDEQ in the annual 

emission inventory request. The State 

only requires that production 

information be gathered on a calendar 

year basis and submitted to MDEQ by 

the date required in the emission 

inventory request. This requirement 

does not enable the permitting agency to 

determine whether a minor source will 

cause or contribute to violations of 

applicable portions of the NAAQS short 

term limits or PSD increments. If MDEQ 

envisions that some oil and gas well 

facilities that emit less than 100 tons per 

year of criteria air pollutants may be 

registration eligible, the rule must also 

include provisions for short term limits 

to ensure that the short term NAAQS 

limits and increments are met. 

One of the requirements for practical 

enforceability is for a minor source to 

provide notice to the State before 

construction begins (Stein, Guidance on 

Enforceability Requirements for Limits 

Potential to Emit through SIP and § 112 

Rules and General Permits). The 

proposed Program allows sources to 

operate and emit criteria pollutants up 

to 60 days before submitting a 

registration or permit application; 

therefore, there is no requirement that 

the State be notified before construction 

begins. Therefore, neither the public, 

the State, nor EPA can determine if 

compliance is met before construction; 

thus, these limitations are not 

practically enforceable. 

As discussed above, any Minor NSR 

SIP revision submittal must meet 

section 110(l) of the CAA. Section 110(l) 

of the Act indicates that EPA cannot 

approve a revision of a plan if the 

revision would interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress (as defined in Section 171), or 

any other applicable requirement of the 

Act. The Long memo stated that MDEQ 

should provide an appropriate analysis 

showing that the proposed new rule will 

not impact the NAAQS or PSD 

increments. EPA expressed concerns to 

MDEQ related to the cumulative effect 

of numerous registration sources. For 

example, the Program could allow 

hundreds of unrelated emission sources 

to be subject to individual emission 

limitations, yet the submitted Program 

lacks the appropriate practically 

enforceable averaging times in order to 

determine compliance with short term 

NAAQS limits and PSD increments. 

EPA recommended that MDEQ should 

perform a screening cumulative impact 

analysis showing, under the worst case 

scenarios, what effect oil and gas well 

facilities would have on the ozone, NO2, 

SO2 and PM NAAQS and increments. 

Montana has not performed such an 

analysis. Therefore, EPA lacks sufficient 

available information to determine that 

the proposed SIP relaxation would not 

interfere with any applicable 

requirement concerning attainment and 

maintenance of the NAAQS, PSD 

increment, or any other requirement of 

the Act. 

Montana’s submittal did not include 

modeling assumptions that will ensure 

compliance with NAAQS. Examples of 

assumptions which should be discussed 

include the estimated number of 

facilities expected to be covered under 

the Program, as well as, their assumed 

locations (i.e., identify potentially high 

density locations). Montana did not 

demonstrate what the cumulative 

impacts from numerous oil and gas 

facilities operating under the Program in 

certain regions and statewide would 

have on the NAAQS. 

EPA notes that in addition to the 

registration program allowing for new 

sources to escape the SIP permit 

requirements, ARM 17.8.1703 allows an 

owner or operator of a registration 

eligible facility for which a valid 

Montana Air Quality Permit (MAQP) 

has been issued to register with the 

department and request a revocation of 

the previously issued MAQP. This is a 

relaxation under section 110(l), because 

it provides an exemption from SIP 

requirements not previously available to 

sources. This SIP relaxation creates a 

risk of interference with attainment and 

maintenance of the NAAQS and control 

strategy. EPA lacks sufficient 

information to determine that this SIP 

relaxation would not interfere with 

attainment and maintenance of the 

NAAQS, PSD increment, or any other 

requirement of the Act. 


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Federal Register / Vol. 76, No. 4 / Thursday, January 6, 2011 / Proposed Rules 763 

IV. Summary of Proposed Actions 

EPA is proposing to disapprove 

revisions and new rules as identified in 

this action and as submitted by the State 

of Montana on October 16, 2006 and 

November 1, 2006. EPA is proposing 

disapproval based upon a number of 

factors, including: (1) The lack of any 

objective, replicable methodology in 

order to determine compliance, (2) the 

lack of sufficient MRR requirements, 

and (3) the lack of enforceability. 

Additionally, EPA lacks sufficient 

information to determine that the 

requested revision to add the new oil 

and gas registration program to the 

Montana Minor NSR SIP will not 

interfere with any applicable 

requirement concerning attainment and 

reasonable further progress (RFP) as 

required by CAA Section 110(l), or any 

other requirement of the Act. Finally, 

EPA also lacks sufficient information to 

make a finding that the submitted 

Program will ensure protection of the 

NAAQS, PSD increments, and 

noninterference with the Montana SIP 

control strategies. 

V. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, 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 Clean Air Act. 

Accordingly, this proposed action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 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 

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, August 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 Clean Air Act; 

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, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds, New Source 

Review, Minor New Source Review, 

Permitting, Incorporation by reference. 

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

Dated: December 22, 2010. 

James B. Martin, 

Regional Administrator, Region 8. 

[FR Doc. 2011–18 Filed 1–5–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2010–0839; FRL–9248–7] 

Finding of Substantial Inadequacy of 

Implementation Plan; Call for Kansas 

Section 110 State Implementation Plan 

for Interstate Transport for the 1997 

National Ambient Air Quality 

Standards for Ozone 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: Pursuant to our authority 

under the Clean Air Act (CAA), EPA is 

proposing to find that the Kansas State 

Implementation Plan (SIP) is 

substantially inadequate to satisfy the 

CAA requirement to address Kansas’ 

significant contribution to downwind 

nonattainment or interference with 

maintenance in another State with 

respect to the 1997 National Ambient 

Air Quality Standards (NAAQS) for 

ozone. The specific State 

Implementation Plan deficiencies that 

EPA has identified are described in this 

proposal and in the proposed Federal 

Implementation Plan To Reduce 

Interstate Transport of Fine Particulate 

Matter and Ozone. If EPA finalizes this 

proposed finding of substantial 

inadequacy, Kansas will be required to 

revise its SIP to correct these 

deficiencies no later than 12 months 

following the date of signature of the 

final finding of substantial inadequacy. 

DATES: Comments must be received on 

or before March 7, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R07– 

OAR–2010–0839, by one of the 

following methods: 

1. http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

2. E-mail: kramer.elizabeth@epa.gov. 

3. Mail: Ms. Elizabeth Kramer, 

Environmental Protection Agency, Air 

Planning and Development Branch, 901 

North 5th Street, Kansas City, Kansas 

66101. 

4. Hand Delivery or Courier: Deliver 

your comments to: Ms. Elizabeth 

Kramer, Environmental Protection 

Agency, Air Planning and Development 

Branch, 901 North 5th Street, Kansas 

City, Kansas 66101. Such deliveries are 

only accepted during the Regional 

Office’s normal hours of operation. 

Instructions: Direct your comments to 

Docket ID No. EPA–R07–OAR–2010– 

0839. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through http:// 

www.regulations.gov or e-mail, 

information that you consider to be CBI 

or otherwise protected. The http:// 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 


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