[Federal Register Volume 71, Number 19 (Monday, January 30, 2006)]
[Rules and Regulations]
[Pages 4822-4829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-789]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2006-0017; FRL-8026-1]


Disapproval of Air Quality Implementation Plans; Montana; 
Maintenance of Air Pollution Control Equipment for Existing Aluminum 
Plants

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is disapproving a State Implementation Plan revision 
submitted by the State of Montana on January 16, 2003. If approved, 
this revision would exempt existing aluminum plants from meeting 
emission requirements during scheduled maintenance. This action is 
being taken under section 110 of the Clean Air Act.

DATES: Effective Date: This final rule is effective March 1, 2006.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2006-0017. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the Air and Radiation Program, Environmental Protection Agency (EPA), 
Region 8, 999 18th Street, Suite 300, Denver, Colorado 80202-2466. EPA 
requests that if at all possible, you contact the individual listed in 
the FOR

[[Page 4823]]

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: Laurie Ostrand, Air and Radiation 
Program, Mailcode 8P-AR, Environmental Protection Agency (EPA), Region 
8, 999 18th Street, Suite 200, Denver, Colorado 80202, (303) 312-6437, 
<a href="/cdn-cgi/l/email-protection#e18e929593808f85cf8d8094938884a1849180cf868e97"><span class="__cf_email__" data-cfemail="9df2eee9effcf3f9b3f1fce8eff4f8ddf8edfcb3faf2eb">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. What Comments Were Received on EPA's Proposal and EPA's Reponse
III. Final Action
IV. 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 or initials CFAC mean or refer to the Columbia Falls 
Aluminum Company.
    (iii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iv) The initials SIP mean or refer to State Implementation Plan.
    (v) The words state or Montana mean the State of Montana, unless 
the context indicates otherwise.

I. Background

    On January 16, 2003, the State of Montana submitted a new rule for 
incorporation into the SIP. The rule is titled Administrative Rules of 
Montana (ARM) 17.8.335, Maintenance of Air Pollution Control Equipment 
for Existing Aluminum Plants.
    The state adopted the rule for the purpose of modifying the 
approved SIP. The rule covers maintenance of air pollution control 
equipment for existing aluminum plants. There is currently one source 
that is subject to this rule, the Columbia Falls Aluminum Company 
(CFAC) in Columbia Falls, Montana. CFAC operates a primary aluminum 
reduction plant. The plant is equipped with air pollution control 
equipment, including ducts conveying exhaust to dry scrubbers. The 
state and CFAC have indicated they believe that air pollution control 
equipment requires periodic maintenance to keep it in good operating 
order. The state and CFAC have also indicated that the failure to 
maintain the air pollution control equipment eventually results in the 
failure of the equipment. Finally, the state and CFAC have indicated 
that the failure of the equipment would result in air pollution 
emissions from the plant that exceed those allowed and may create an 
unacceptable risk to public health.
    Further, the state and CFAC indicated that the maintenance of the 
air pollution control equipment requires the plant to shut down the dry 
scrubbers and to bypass some of the dry scrubbers during the 
maintenance event. If the plant continues to operate during the 
shutdown of the dry scrubbers, the air pollution emissions from the 
plant may exceed those allowed by rules governing emission of air 
pollutants.
    In the past the plant has applied to the state for, and in several 
cases been granted, a variance from rules governing emission of air 
pollutants so that the plant could conduct maintenance on the air 
pollution control equipment while continuing to operate the plant. CFAC 
expressed that the process for obtaining a variance is time consuming. 
The state has adopted a rule that allows the plant to conduct 
maintenance on air pollution control equipment while the plant is 
operating, without requiring the plant to obtain a variance.
    Our review of ARM 17.8.335, Maintenance of Air Pollution Control 
Equipment for Existing Aluminum Plants, indicated that it is not 
approvable and we proposed to disapprove Montana's SIP revision on 
October 29, 2003 (68 FR 61650). Our October 29, 2003 notice describes 
in detail the rationale for our proposed disapproval.

II. What Comments Were Received on EPA's Proposal and EPA's Response

    We received three comments on our October 29, 2003 proposed action. 
One commenter generally supported our proposed action and the other two 
commenters opposed our proposed action.
    (1) Comment: The commenter that supported our proposed action 
indicated they ``* * * generally concur with EPA's stated reasons for 
proposing to disapprove the Montana SIP rule change regarding 
maintenance of air pollution control equipment at existing primary 
aluminum reduction plants * * *'' The commenter also expressed an 
interest in ultimately allowing the maintenance emissions under limited 
circumstances when the result would be less impact to the airshed.
    Response: Although we generally agree with the commenter, we think 
provisions excusing the source from complying with the existing 
requirements during maintenance should only be allowed if the state can 
demonstrate that the national ambient air quality standards (NAAQS) and 
prevention of significant deterioration (PSD) increments will be 
protected, and other CAA requirements met, during periods of 
maintenance at the facility. The primary purpose of the SIP is to 
ensure attainment and section 110(l) of the CAA provides that EPA may 
not approve a SIP revision that would interfere with attainment, 
reasonable progress or any other applicable requirement of the Act.
    (2) Comment: One commenter indicated that ``EPA proposes to 
disapprove Montana's rule based, in part, on guidance. EPA contends 
excess emissions should be treated as compliance violations based upon 
provisions in EPA memoranda cited in footnotes to the proposed 
rulemaking. However, guidance is not law and does not replace the 
requirements of a rule or statute passed by a legally enabled body with 
the opportunity for public scrutiny and comment.'' The commenter also 
indicated that ``while guidance may be helpful in certain 
circumstances, reliance on guidance as a method of `codifying' 
internally-developed policy often creates confusion among the 
regulated-community and the public because of the imperious and 
arbitrary nature of guidance development. Furthermore, failure to 
engage in rulemaking implies that notice-and-comment procedures are 
impracticable, unnecessary, or contrary to the public interest.''
    Response: EPA's reference to and reliance on the guidance documents 
mentioned, which are publicly available and a part of the record for 
this action, is not prohibited by the Clean Air Act or the 
Administrative Procedure Act. EPA agrees that the guidance documents do 
not establish enforceable and binding requirements; the guidance 
documents do not purport to be anything but guidance. This is why EPA 
has performed this rulemaking--a notice-and-comment rulemaking--to take 
comment on its statutory interpretations and factual determinations in 
order to make a binding and enforceable determination regarding the SIP 
submittal (i.e., ARM 17.8.335, Maintenance of Air Pollution Control 
Equipment for Existing Aluminum Plant). Our October 29, 2003 proposed 
rule refers to EPA guidance not as binding the Agency to adopt the 
interpretation of the CAA therein, but rather as a useful description 
of the rationale underlying those interpretations. EPA has explained 
the legal and factual basis for its rulemaking in the October 29, 2003 
proposed rule and afforded the public a full

[[Page 4824]]

opportunity to comment on EPA's proposed interpretation and 
determination. This action is consistent with the applicable procedural 
requirements of the Administrative Procedure Act. In the final rule, 
EPA is fully responding to any concerns with EPA's interpretations as 
set forth in the guidance documents and relied on in the proposed rule. 
Thus EPA has not treated the guidance as a binding rule.
    (3) Comment: The commenter that indicated it was not appropriate to 
rely on guidance for disapproving the rule further indicated that ``the 
Department of Environmental Quality (Department) does not believe that 
ARM 17.8.335 is inconsistent with the direction provided in the 1999 
Herman/Perciasepe and 1988 Bennett memos. ARM 17.8.335 differs in 
several respects from the generalized exemptions cited in the policy.''
    First, the commenter indicated that ``EPA claims all instances of 
excess emissions must be considered violations. ARM 17.8.335 does not 
exempt the excess emissions from being considered a violation, it 
merely prohibits the Department from initiating an enforcement action 
for the violation.''
    Second, the commenter indicated that ``the memos cited are not 
entirely relevant since they address generalized exemptions for all 
excess emissions, regardless of impact. ARM 17.8.335 is very specific. 
It applies to a single source at a single facility. This means that the 
impacts of the exemption were identified and modeled. The modeling 
demonstrated the exemption would not violate the ambient standards.''
    Third, the commenter indicated that ``EPA contends that ARM 
17.8.335 is not acceptable, because it must contain emission standards 
or limitations to protect ambient standards. Since ARM 17.8.335(1)(a) 
contains an emission limitation as well as work practice standards, 
Montana believes that ARM 17.8.335 is consistent with the policy in 
this respect.''
    Fourth, the commenter indicated that ``EPA also states they 
disagree with Montana's contention that ARM 17.8.335 will not allow 
violation of ambient standards or Prevention of Significant 
Deterioration Increments. Since ARM 17.8.335(11) contains clear 
language prohibiting violation of ambient standards, Montana stands by 
its contention.''
    Response: First, EPA's interpretation of the CAA, as reflected in 
our guidance, is that excess emissions must be considered violations 
because SIPs must provide for the attainment and maintenance of the 
NAAQS and the achievement of the PSD increments. The commenter 
indicated that the rule meets the guidance because the rule ``does not 
exempt excess emissions from being considered a violation, it merely 
prohibits the Department from initiating an enforcement action for the 
violation.'' Without the threat of an enforcement action, the label of 
``violation'' loses all meaning.
    The state's proposed approach (i.e., prohibiting itself from 
enforcing a violation) is inconsistent with section 110 of the CAA. 
Section 110 requires the SIP to include enforceable emission 
limitations, a program to provide for the enforcement of these emission 
limitations, and assurances that the state has adequate authority under 
state law to carry out the SIP (and is not prohibited by any provision 
of state law from doing so). ARM 17.8.335 prohibits the state from 
enforcing applicable emission limitations during source maintenance; 
absent an adequate demonstration under section 110(l) of the CAA that 
the higher emissions allowed in ARM 17.8.335 will not interfere with 
the CAA requirements, the state must continue to allow for enforcement 
action, but may exercise its enforcement discretion in determining 
whether to pursue any particular violation of the SIP.
    Second, the commenter indicated that the modeling demonstrated the 
exemption would not violate ambient standards. As discussed in the 
proposal we had concerns with the modeling and indicated that the 
approach used would not assure protection of the NAAQS. We stand by 
that statement in our proposal and therefore, do not agree with the 
commenter that the modeling demonstrated that the exemption would not 
violate ambient standards. Below, in comment/response <greek-i>4, is 
further discussion regarding the modeling. Additionally, the state did 
not evaluate the impact of the excess emissions on the PSD increments.
    Third, the commenter indicated that ARM 17.8.335 contains an 
emission limitation as well as work practice standards that protect the 
ambient standards. As indicated above, we do not agree that it has been 
demonstrated that the ambient standards would be protected. Also, EPA 
questions the enforceability of the ``emission limitation'' the 
commenter refers to. Presumably the commenter is referring to ARM 
17.8.335(1)(a)(ii), which indicates that the department may not 
initiate an enforcement action for a violation of various rules, or any 
emission standard, resulting from necessary scheduled maintenance of 
air pollution control equipment at an existing primary aluminum 
reduction plant, if, among other things, the maintenance event meets 
the following conditions: ``the maintenance event will not cause 
uncontrolled PM-10 emissions to exceed normal operating emissions from 
the reduction cells by more than 700 lbs. per 24-hour period as 
estimated using emissions factors.'' The rule does not establish or 
define ``normal operating emissions from the reduction cells.'' Without 
establishing or defining ``normal operating emissions from the 
reduction cells'' we question how the department could ever enforce the 
requirements in ARM 17.8.335(1)(a)(ii). Also, we question if the 
necessary scheduled maintenance could occur at other emission points 
that would not affect the level of emissions from the reduction cells 
but would cause an increase in emissions elsewhere.
    Fourth, the commenter indicated that ``since ARM 17.8.335(11) 
contains clear language prohibiting violation of ambient standards, 
Montana stands by its contention'' that the rule will assure protection 
of the NAAQS or PSD increments. As we indicated in our proposal, we 
believe ambient standards and the PSD increments are protected by 
establishing limits that assure the standards and increments will be 
met. ARM 17.8.335(11) indicates that nothing in the rule shall be 
construed to allow an owner or operator to cause or contribute to 
violations of any federal or state ambient air quality standards.\1\ We 
do not believe such a generic provision ensures protection of the 
NAAQS. At best, it simply means that if the ambient standards are 
violated--jeopardizing the health of the community, the Department 
could then bring an enforcement action. ARM 17.8.335(11) provides no 
clear cut standard the source must meet to protect public health.
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    \1\ We note that while ARM 18.8.335(11) discusses ``ambient 
standards'' it does not specifically mention PSD increments. A 
document in the state's submittal indicates that the reference to 
``ambient standards'' includes both the NAAQS and PSD increments.
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    In lieu of relying on monitors to assure the NAAQS are protected, 
particularly when the monitoring network is sparse, EPA believes 
enforceable emission limits should be established that, through 
modeling, demonstrate that the NAAQS would be protected. As we 
indicated earlier and below, we do not believe the modeling completed 
for this SIP revision was adequate to demonstrate that the NAAQS would 
be protected or that enforceable emission limits were adequately 
established.

[[Page 4825]]

    (4) Comment: Several comments were raised regarding EPA's concerns 
about the rule's impact on the NAAQS. The comments pertained to whether 
or not: (a) The impact of the rule in the nearby Columbia Falls PM-10 
nonattainment area had been addressed adequately, (b) there was an 
adequate demonstration that the NAAQS would be protected, and (c) 
appropriate modeling techniques were used.
    Comment A. Regarding EPA's concerns about the impact of the rule on 
the Columbia Falls PM-10 nonattainment area, the commenter indicated 
that ``EPA approved the Columbia Falls PM-10 control plan on April 14, 
1994, at 59 FR 17700. This action included approval of the technical 
support documents that demonstrate Columbia Falls Aluminum (CFAC) is an 
insignificant source of emissions contributing to the nonattainment 
area. Specifically, on January 27, 1994, at 59 FR 3804, EPA stated the 
control plan demonstration would provide for attainment within the 
prescribed time periods and would further maintain NAAQS compliance in 
future years. Further analysis demonstrating this rule's impact on the 
nonattainment area is unnecessary as a result of EPA's control plan 
approval. Therefore, the burden lies with EPA to demonstrate that a 
rule affecting a source, recognized in an approved control plan as an 
insignificant contributor to the nonattainment area, would otherwise 
interfere with an applicable requirement concerning attainment 42 
U.S.C. 7410(l).''
    Response A. The commenter is correct that EPA approved the Columbia 
Falls PM-10 nonattainment area plan on April 14, 1994 (59 FR 17700). 
The attainment demonstration for the plan was based on receptor 
modeling (chemical mass balance (CMB)) and rollback modeling. However, 
as noted on page 17702, in the middle column,

    ``[t]he State has made a separate commitment to testing and 
further dispersion modeling of emissions from the Columbia Falls 
Aluminum Company (CFAC) facility. This facility is located outside 
the nonattainment area and emissions from CFAC were not identified 
on the Chemical Mass Balance analysis of filters collected from the 
monitor in the Columbia Falls nonattainment area. Emissions from 
CFAC are a potential concern, however, since this source accounts 
for 20 percent of the emission inventory (at permitted allowable 
emissions). EPA will continue to monitor the testing and assist the 
State with any action required by the results.''

The state's commitment was made in a May 6, 1992 letter from Governor 
Stan Stephens.
    The state developed a new PM-10 emissions inventory for CFAC but 
did not complete the dispersion modeling. EPA completed the dispersion 
modeling analyses using the new PM-10 emissions inventory for CFAC to 
determine CFAC's impact in the nonattainment area. On September 19, 
1996 the Montana Department of Environmental Quality (MDEQ) sent us the 
actual and allowable PM-10 emissions for CFAC. EPA input this emission 
information into the ISC3/Complex1 models to determine the effect on 
the Columbia Falls PM-10 nonattainment area. The modeled 24-hour impact 
at the Columbia Falls monitor was 24 [mu]g/m\3\ using allowable 
emissions and 8 [mu]g/m\3\ using actual emissions. We also noted that 
the highest modeled 24-hour concentrations of actual emissions at the 
CFAC ambient PM-10 monitor (different from the Columbia Falls monitor) 
was about 30 [mu]g/m\3\. This seemed to compare favorably with 
measurements at that site when background concentrations were also 
considered.
    On July 1, 1997, the State submitted a maintenance plan and 
redesignation request for the Columbia Falls PM-10 nonattainment area. 
The July 1, 1997 submittal was later withdrawn on October 27, 1998. 
However, the July 1, 1997 maintenance plan projected the ambient PM-10 
24-hour concentrations in the Columbia Falls PM-10 nonattainment area 
for the 2009 maintenance year to be 146.2 [mu]g/m\3\. The 24-hour PM-10 
NAAQS is 150 [mu]g/m\3\. The 2009 maintenance year projection, however, 
did not consider any emissions impact from CFAC. If we add the 
dispersion modeled impact from CFAC using either allowable emissions 
(24 [mu]g/m\3\ impact) or actual emissions (8 [mu]g/m\3\ impact) to the 
maintenance year projections then the Columbia Falls PM-10 
nonattainment area would be projected to exceed 150 [mu]g/m\3\ and not 
attain the PM-10 NAAQS (i.e., 24 + 146.2 = 170.2 [mu]g/m\3\ and 8 + 
146.2 = 154.2 [mu]g/m\3\). In addition, we note that the impact of the 
``maintenance'' emissions (i.e., the additional 700 lbs of PM per 24-
hour period expected during maintenance) on the Columbia Falls PM-10 
nonattainment area were not analyzed here.
    The state believes CFAC is in a different airshed from the 
nonattainment area and that emissions from CFAC do not have a 
significant impact on the Columbia Falls PM-10 nonattainment area. CFAC 
is only about one mile from the City of Columbia Falls. Existing 
information (indicated above) supports a conclusion that emissions from 
CFAC do affect the nonattainment area and thus further analyses would 
need to be completed before it could be determined that maintenance 
emissions from CFAC would not impair the ability of the Columbia Falls 
PM-10 nonattainment area to attain and maintain the NAAQS.
    We stand by our proposal that further analysis is needed to show 
that CFAC does not interfere with the ability of the Columbia Falls 
nonattainment area to attain and maintain the NAAQS.
    Additionally, we note that we disagree with the commenter's 
statement that it is EPA's burden to demonstrate that a SIP revision 
would interfere with an applicable requirement concerning attainment. 
In general, we believe the primary burden in supporting a SIP revision 
rests with the state. Here we note that the available information 
(EPA's modeling in conjunction with the state's withdrawn maintenance 
plan) supports a conclusion that the SIP revision would interfere with 
attainment and maintenance of the NAAQS and the state has failed to 
submit any information to counter that conclusion.
    Comment B. Regarding whether or not there was an adequate 
demonstration that the NAAQS would be protected, the commenter 
indicated that ``as stated in EPA's Notice of Proposed Disapproval, a 
State Implementation Plan contains requirements necessary to protect 
ambient air quality standards. The record of adoption of ARM 17.8.335 
clearly demonstrates that ARM 17.8.335 continues to protect those 
standards. Since EPA has not demonstrated that ARM 17.8.335 violates 
any requirement of the Clean Air Act, EPA must approve this SIP 
change.''
    Response B. We do not believe the state's record of adoption 
supports the conclusion that the rule will protect the ambient air 
quality standards. The SIP must provide for attainment and maintenance 
of the NAAQS and the protection of PSD increments. The state must 
demonstrate that this SIP revision will not interfere with the state's 
ability to attain and maintain the NAAQS (sections 110(a)(1) and 110(l) 
of the Act). SIP provisions that allow for an automatic exemption for 
excess emissions from start-up, shut-down, malfunction and maintenance 
activities result in levels of emissions that are difficult to predict 
and thus it is difficult to demonstrate the effect of these activities 
on attainment or maintenance or the protection of the PSD increments. 
Therefore, EPA generally prohibits such rules in SIPs. However, we 
recognize that in limited circumstances a state may be able to

[[Page 4826]]

demonstrate periods of excess emissions will not interfere with these 
requirements by showing that the CAA requirements are met during the 
periods of excess emissions. CFAC conducted modeling to demonstrate 
that excess emissions during the maintenance procedures would not cause 
or contribute to violations of the Montana Ambient Air Quality 
Standards (MAAQS) or NAAQS. We outlined our concerns with the modeling 
in our proposed notice.\2\ The commenter did not present any new 
technical information that has changed our mind regarding the adequacy 
of the state's modeling to demonstrate that the CAA requirements are 
met during periods of excess emissions.
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    \2\ We indicated the state's modeling approach was inconsistent 
with EPA's Guideline on Air Quality Models, 40 CFR part 51, Appendix 
W for several reasons. As discussed in greater detail in the 
proposed notice, allowable emissions, rather than normal operating 
emissions, should be used in the modeling; nearby point sources that 
cause a significant concentration gradient should also be included 
in the modeling; and five years of National Weather Service 
meteorology data is generally recommended to ensure that worst case 
meteorological conditions are considered. Finally we were not 
convinced that the 17 [mu]g/m\3\ value is an appropriate value to be 
used for background concentrations.
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    Comment C. Regarding whether or not appropriate modeling techniques 
were used, the commenter indicated, ``EPA has applied the modeling 
guidance for permit demonstrations to review the analysis conducted for 
this rule adoption. The guidance, as quoted in this instance, is not 
appropriate for use in this very special case. The Department used 
professional judgment and local knowledge to determine the analytical 
procedures and approval criteria for this rule analysis. The analytical 
method used was within the discretion allowed to the State as a `SIP 
Approved' state and EPA does not have the authority to require any 
other, or additional, demonstrations. EPA has not provided any 
additional comments on the modeling and the Department had already 
addressed the previous comments through the notice of adoption of this 
rule (MAR 17-160 pg. 2189-2194).''
    Response C. The modeling guidance we referenced in our proposal is 
contained in the Code of Federal Regulations (CFR) at 40 CFR part 51, 
Appendix W and is titled ``Guideline on Air Quality Models'' 
(hereinafter called ``Guideline''). In our proposal we were pointing 
out that the state had incorporated by reference our modeling guidance 
in its permitting rules. However, just because the state has only 
incorporated our modeling guidance in its permitting rules does not 
mean the modeling guidance should not be used for other purposes. 
Section 1(a) of Appendix W indicates ``[t]he Guideline recommends air 
quality modeling techniques that should be applied to State 
Implementation Plan (SIP) revisions for existing sources and to new 
source reviews (NSR), including prevention of significant deterioration 
(PSD). * * * Applicable only to criteria air pollutants, it is intended 
for use by EPA Regional Offices in judging the adequacy of modeling 
analyses performed by EPA, State and local agencies and by industry. 
The guidance is appropriate for use by other Federal agencies and by 
State agencies with air quality and land management responsibilities. 
The Guideline serves to identify, for all interested parties, those 
techniques and data bases EPA considers acceptable. The Guideline is 
not intended to be a compendium of modeling techniques. Rather, it 
should serve as a common measure of acceptable technical analysis when 
supported by sound scientific judgment.''
    The commenter indicated that the modeling guidance quoted in our 
proposal is not appropriate for use in this very special case. We do 
not agree. Since ARM 17.8.335 is allowing an increase in PM-10 
emissions, and since there is a PM-10 NAAQS and a PM-10 nonattainment 
area near the source, we think the modeling used to show that the NAAQS 
will be protected should be the same level of modeling used to support 
an attainment demonstration.
    The commenter indicated that the Department used its professional 
judgment and local knowledge to determine the analytical procedures and 
approval criteria for this rule analysis and that the analytical method 
used was within the discretion allowed to the state as a ``SIP 
Approved'' state and EPA does not have the authority to require any 
other, or additional, demonstration. We do not agree with this comment. 
We do not know what the commenter is referring to when it indicates 
that they have discretion because they are a ``SIP Approved'' state. 
While we have approved various portions of the SIP for Montana, such 
approval does not give Montana the discretion to ignore the Guidelines 
in 40 CFR part 51, Appendix W in determining the type of modeling that 
would support approval of SIP revisions. The CFR at 40 CFR 51.112(a) 
indicates:

    (a) Each plan must demonstrate that the measures, rules, and 
regulations contained in it are adequate to provide for the timely 
attainment and maintenance of the national standard that it 
implements.
    (1) The adequacy of a control strategy shall be demonstrated by 
means of applicable air quality models, data bases, and other 
requirements specified in appendix W of this part (Guideline on Air 
Quality Models).
    (2) Where an air quality model specified in appendix W of this 
part (Guideline on Air Quality Models) is inappropriate, the model 
may be modified or another model substituted. Such a modification or 
substitution of a model may be made on a case-by-case basis or, 
where appropriate, on a generic basis for a specific State program. 
Written approval of the Administrator must be obtained for any 
modification or substitution. In addition, use of a modified or 
substituted model must be subject to notice and opportunity for 
public comment under procedures set forth in Sec.  51.102.

    Further, EPA has the authority to require other, or additional, 
demonstrations. Section 110(a)(2)(K) of the Act indicates that:

    [e]ach implementation plan submitted by a State under this Act 
shall be adopted by the State after reasonable notice and public 
hearing. Each such plan shall.* * * (K) 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 national ambient air quality 
standard * * *

    Finally, the commenter indicated that EPA had not provided any 
additional comments that the Department has not already responded to in 
its rulemaking. On May 16, 2002 we submitted comments to the Board of 
Environmental Review during the state's rulemaking process to adopt ARM 
17.8.335. In our May 16, 2002 letter we expressed our concerns with the 
modeling and the May 16, 2002 comments are similar to the concerns 
expressed in our proposed rulemaking. The state responded to our 
comments in its notice of adoption. We reviewed the notice of adoption 
before we proposed our action on ARM 17.8.335. We do not believe the 
state's response, in its notice of adoption, adequately addressed our 
concerns and that is why the same concerns with the modeling were 
detailed in the proposal notice. We continue to believe our concerns 
with the modeling are valid.
    Because of our concerns with the modeling and the potential impact 
in the Columbia Falls nonattainment area, we believe the state has not 
demonstrated that ARM 17.8.335, Maintenance of Air Pollution Control 
Equipment for Existing Aluminum Plants will not interfere with any 
applicable requirement concerning attainment and reasonable progress or 
any other applicable requirement of the Act (sections 110(a)(1) and 
110(l) of the Act).

[[Page 4827]]

    5. Comment: The commenter indicated that ``EPA also states they do 
not find the aluminum smelting process sufficiently unique to warrant 
unique maintenance procedures. Montana's SIP submittal contained 
testimony that aluminum smelters do not undergo regular plant-wide 
maintenance shutdowns like other industries and that the emissions from 
startup and shutdown would be significantly greater than that emitted 
under the maintenance procedure allowed in ARM 17.8.335.''
    Response: We agree that the SIP submittal did contain such 
statements. The point in our proposal was that we spoke to the EPA 
Region 10 office and found that the emission control system for most 
primary aluminum plants in that Region have been designed in a modular 
manner so that one or more components can be taken off-line for 
maintenance without shutting down the whole system. Two vertical 
Soderberg plants (similar in design to CFAC) in Region 10 have not 
requested the type of exemption for maintenance provided for CFAC in 
the SIP submission. Thus we are not convinced that the CFAC aluminum 
process is so unique, or that control technology could not be modified 
or added, to address scheduled maintenance.
    6. Comment: Another commenter indicated that ``the rule was 
developed to allow maintenance activities on the facility's air 
pollution control system to occur in a manner that is most protective 
of the environment * * * This rule is necessary and needed by CFAC in 
order to perform maintenance activities that minimize malfunctions and 
the resulting uncontrolled release of pollutants into the atmosphere. 
This rule allows CFAC to reduce emissions through the performance of 
maintenance activities that prevent unplanned air pollution control 
system downtime that result in excess emissions.''
    Response: Although EPA supports pollution control maintenance, for 
the reasons discussed earlier, we cannot approve a rule that allows 
increased emissions during maintenance activities unless it can be 
adequately demonstrated that the rule will not interfere with the 
state's ability to attain and maintain the NAAQS (section 110(a)(1) of 
the Act) or any applicable requirement concerning attainment and 
reasonable progress or any other applicable requirement of the Act 
(section 110(l) of the Act). Rather than trying to balance which excess 
emissions would be worse, malfunction or maintenance, perhaps the 
facility could be redesigned so that maintenance could be completed on 
portions of the control equipment without having to shut down the 
control equipment. As we indicate in our response to comment (5) above, 
we spoke to another EPA Regional office and found that the emission 
control system for most primary aluminum plants in that Region have 
been designed in a modular manner so that one or more components can be 
taken off-line for maintenance without shutting down the whole system.

III. Final Action

    We have carefully considered the comments received and still 
believe we should disapprove the SIP revision. EPA is disapproving the 
SIP revision submitted by the State of Montana on January 16, 2003, 
which requested that ARM 17.8.335, Maintenance of Air Pollution Control 
Equipment For Existing Aluminum Plants, be added to the SIP.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must 
approve all ``collections of information'' by EPA. The Act defines 
``collection of information'' as a requirement for ``answers to * * * 
identical reporting or recordkeeping requirements imposed on ten or 
more persons * * *'' 44 U.S.C. 3502(3)(A). Because this final rule does 
not impose an information collection burden, the Paperwork Reduction 
Act does not apply.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because EPA's final disapproval action only 
affects one industrial source of air pollution; Columbia Falls Aluminum 
Company. Only one source is impacted by this action. Furthermore, as 
explained in this action, the submission does not meet the requirements 
of the Clean Air Act and EPA cannot approve the submission. The final 
disapproval will not affect any existing State requirements applicable 
to the entity. Federal disapproval of a State submittal does not affect 
its State enforceability. Therefore, because the Federal SIP 
disapproval does not create any new requirements nor impact a 
substantial number of small entities, I certify that this action will 
not have a significant economic impact on a substantial number of small 
entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the disapproval action does not include a 
Federal mandate that may result in estimated costs of $100 million or 
more to either State, local, or tribal governments in the aggregate, or 
to the private sector. This Federal action determines that pre-existing 
requirements under State or local law should not be approved as part of 
the federally-approved SIP. It imposes no new requirements. 
Accordingly, no additional costs to State, local, or tribal 
governments, or to the private sector, result from this action.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental

[[Page 4828]]

Partnership). Executive Order 13132 requires EPA to develop an 
accountable process to ensure ``meaningful and timely input by State 
and local officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely disapproves a state rule implementing a federal standard, and 
does not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. This action does not involve or impose 
any requirements that affect Indian Tribes. Thus, Executive Order 13175 
does not apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it is not 
economically significant as defined in Executive Order 12866.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 804, however, exempts from section 801 the 
following types of rules: rules of particular applicability; rules 
relating to agency management or personnel; and rules of agency 
organization, procedure, or practice that do not substantially affect 
the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA 
is not required to submit a rule report regarding this action under 
section 801 because this is a rule of particular applicability.

K. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by March 31, 2006. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: January 19, 2006.
Robert E. Roberts,
Regional Administrator, Region 8.

0
40 CFR part 52 is amended to read as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart BB--Montana

0
2. In Section 52.1384, add paragraph (f) to read as follows:


Sec.  52.1384  Emission control regulations.

* * * * *
    (f) Administrative Rules of Montana 17.8.335 of the State's rule 
entitled ``Maintenance of Air Pollution Control Equipment for Existing 
Aluminum Plants,'' submitted by the Governor on January 16, 2003, is 
disapproved. We cannot approve this rule into the SIP

[[Page 4829]]

because it is inconsistent with the Act (e.g., sections 110(a) and 
110(l)), prior rulemakings and our guidance.

[FR Doc. 06-789 Filed 1-27-06; 8:45 am]
BILLING CODE 6560-50-P


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