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[Federal Register Volume 81, Number 76 (Wednesday, April 20, 2016)]
[Rules and Regulations]
[Pages 23180-23187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08916]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2013-0556, FRL-9945-14-Region 8]

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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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

DATES: This rule is effective on May 20, 2016.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R08-OAR-2013-0556. 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., 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 Program, 
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129. The 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, 8:00 a.m. to 4:00 p.m., 
excluding federal holidays.

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

SUPPLEMENTARY INFORMATION:

I. Background

    Infrastructure requirements for SIPs are provided in section 
110(a)(1) and (2) of the CAA. Section 110(a)(2) lists the specific 
infrastructure elements that a SIP must contain or satisfy. The 
elements that are the subject of this action are described in detail in 
our proposed rulemaking (NPR) published on January 26, 2016 (81 FR 
4225).
    In our NPR, the EPA proposed to approve, conditionally approve, 
take no action on, and disapprove infrastructure elements for the 2008 
Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 1997, 2006 
and 2012 PM2.5 NAAQS from the State's certifications. In 
this rulemaking, we are taking final action to approve infrastructure 
elements from the State's certifications. We are also conditionally 
approving elements (C), D(i)(II) element 3 and (J) with respect to the 
requirement to have a PSD program that meets the requirements of part C 
of Title 1 of the Act. The EPA is taking final action to disapprove 
(D)(i)(II) element 4 for the 2006 PM2.5, 2008 ozone, 2010 
NO2, 2010 SO2, and 2012 PM2.5 NAAQS. 
We are also taking final action to approve revisions to the 
Administrative Rules of Montana (ARM) from the August 21, 2012 
submittal and conditionally approve a revision from the March 24, 2015 
submittal to bring Montana's PSD program up to date with respect to 
current requirements for PM2.5. In this action, we are 
taking final action to approve new ARM and sections of the Montana Code 
Annotated submitted on December 17, 2015 to satisfy requirements of 
element (E)(ii), state boards.

II. Response to Comments

    We received two comment letters during the public comment period. 
One comment letter was submitted anonymously and the other by Andrea 
Issod from the Sierra Club Environmental Law Program (Sierra

[[Page 23181]]

Club) and Anne Hedges from the Montana Environmental Information Center 
(MEIC). We also received a request for comment period extension from 
Andrea Issod from the Sierra Club. The EPA contacted the commenter and 
after a short discussion, the commenter decided not to follow through 
with their extension request.
    Comment 1: The EPA cannot approve the PSD portions of all these 
Infrastructure SIPs until EPA has finally approved the Class I and 
Class II PM2.5 increments into the Montana SIP. I appreciate 
EPA's efforts to address this issue.
    Response: We agree with the commenter that adoption of 
PM2.5 increments is a necessary requirement when assessing a 
state's PSD program for the purposes of CAA Section 110(a)(2)(C), 
(D)(i)(II) element 3, and (J). In this action, we are approving the 
necessary portions of Montana's August 21, 2012 submission to satisfy 
the requirements of the October 20, 2010 rule, ``Prevention of 
Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 
Micrometers (PM2.5)--Increments, Significant Impact Levels 
(SILs) and Significant Monitoring Concentration (SMC)'' (75 FR 64864). 
Montana adopted 40 CFR 51.166(c)(1), which includes Class I and Class 
II increments, into ARM 17.8.804(1). By meeting this structural 
requirement for the PSD program in its SIP, the State has also met the 
relevant Infrastructure SIP elements relevant to the PSD program. 
Accordingly, the EPA concludes that the issue identified by the 
commenter has been properly addressed.
    Comment 2: The Sierra Club and Montana Environmental Information 
Center (MEIC) Comment Letter states the following on pages 2, 3, 26 and 
27:

    Sierra Club and Montana Environmental Information Center (MEIC) 
submit to EPA that the Montana PSD program as implemented by MTDEQ 
fails to require PSD permits for all modified major sources that are 
required to be covered under the SIP PSD permitting program pursuant 
to 40 CFR 51.166, due to MTDEQ's policy interpretations of its PSD 
program that result in rules that are less stringent and thus less 
inclusive than the federal PSD program. Further, because the MTDEQ's 
implementation of the Montana PSD program does not cover all PSD-
subject modified major sources, MTDEQ's implementation of its PSD 
program also fails to cover all regulated [New Source Review] NSR 
pollutants including GHG pollutants for which the PSD permitting 
requirements only apply to ``anyway sources,'' i.e., sources that 
would otherwise be subject to PSD permitting for other pollutants.
    MTDEQ is following policy interpretations that differ from its 
EPA-approved PSD rule incorporated into the Montana SIP (which 
tracks EPA's 1980 PSD regulations) and as a result, Montana's 
implementation of the PSD program is less inclusive and less 
stringent than the 1980 federal PSD rules because it fails to 
include all physical or operational changes that would be major 
modifications under the federal PSD requirements. Further, MTDEQ's 
policy interpretations mean that its implementation of the PSD 
program is less stringent than the 2002 NSR Reform Rules promulgated 
by EPA on December 31, 2002 (67 Fed. Reg. 80186), as amended by EPA 
on June 13, 2007 (72 Fed. Reg. 32526) for physical or operational 
changes at existing major sources.
    Although EPA has stated in the proposed approval of the Montana 
infrastructure SIP approval that it ``does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies 
in a state's existing SIP'' including existing provisions of the 
state's PSD program that may be inconsistent with the current 
federal PSD rules reflecting NSR Reform, EPA has no basis for 
attempting to limit public comment and EPA review of this issue when 
a state's policy interpretations of its PSD program result in a 
program that is less inclusive and less stringent than the current 
federal PSD program, and is therefore contrary to law.
* * * * *
    EPA cannot assume that Montana's minor source permitting program 
will ensure protection of these NAAQS for those modified sources 
that, pursuant to MTDEQ's policy interpretations, do not trigger 
applicability under the Montana PSD program as major modifications. 
The Montana SIP includes an exemption from the requirement to obtain 
a Montana Air Quality Permit for ``construction or changed 
conditions of operation'' at a facility that does not increase the 
facility's potential to emit by more than 5 tons per year. ARM 
17.8.743(1), ARM 17.8.745 ``Exclusion for De Minimis Changes.'' This 
rule allows a source to apply an emissions test comparing potential 
to emit pre- and post-change, and if the increase in potential to 
emit is less than 5 tons per year, no Montana Air Quality Permit is 
required for the construction or changed operation. For those 
modifications to existing major sources that do not trigger PSD 
based on MTDEQ's policy interpretations allowing the source to use 
an actual emissions to [an] estimated future actual emissions test, 
it is likely that such a modified source could avoid the requirement 
to obtain a Montana Air Quality permit under the potential-to[-
]potential comparison of the de minimis exemption in Montana's SIP. 
Even if a modified major source could not initially be exempt under 
the potential-to-potential test of the Montana de minimis rule, the 
Montana rule also allows an existing source to revise the federally 
enforceable emission limitations (thus reducing its potential to 
emit) through an administrative process pursuant to ARM 17.8.764 
(see ARM 17.8.745(1)(a)(5) and (2).
    While the de minimis rule does not allow construction or changed 
conditions that would affect the plume rise or dispersion 
characteristics of emissions in a manner that would cause or 
contribute to a NAAQS violation (see ARM 17.8.745(1)(a)(iii)), this 
provision will not ensure protection of the NAAQS due to emissions 
from the modified major sources that avoid PSD permitting due to 
MTDEQ's policy interpretations. To determine if a modified source 
will cause or contribute to a violation of the NAAQS, the de minimis 
rule requires notification to MTDEQ if the physical or operational 
change will change stack height, stack diameter, stack flow, stack 
gas temperature, or source location, but it does not require ambient 
air modeling. ARM 17.8.745(b). However, given that the majority of 
existing sources have never been modeled for compliance with the 
recent NAAQS for lead, ozone, 1-hour NO2, 1-hour 
SO2, or PM2.5 NAAQS, it will be extremely 
difficult for MTDEQ to determine that a change in stack parameters 
or source location would cause or contribute to a violation of the 
NAAQS. Further, it is not evident that MTDEQ always requires 
submittal of such information to determine if construction or 
changed operating conditions at an existing source would affect the 
plume rise or dispersion characteristics of a modified source, given 
that MTDEQ allows certain emission sources to be excluded from 
notification requirements of the de minimis rule pursuant to ARM 
17.8.745(c).

    Response: The commenters' concerns are directed not to whether the 
existing SIP for Montana meets the relevant structural requirements for 
PSD programs, but rather to whether Montana is in fact faithfully 
implementing the existing provisions of its EPA-approved SIP. As the 
EPA has explained in other contexts, comments like these highlight an 
important distinction between whether an infrastructure SIP submission 
meets the applicable requirements of the CAA on its face (i.e., pertain 
to the facial sufficiency of the state's SIP), and whether a state is 
actually complying with the requirements of that SIP (i.e., pertain to 
adequacy of the state's implementation of the SIP).\1\ These comments 
implicate the question of the degree to which implementation concerns 
are relevant in the context of acting on a state's infrastructure SIP. 
In the context of an infrastructure SIP submission, the EPA interprets 
the requirements of section 110(a)(1) and (2) to require the Agency to 
focus on whether the state has a SIP that provides the requisite legal 
framework for implementation, maintenance and enforcement of the NAAQS. 
Generally speaking, the EPA's review of infrastructure SIP submissions 
is limited to whether, pursuant to CAA section 110(a)(2), the 
submission

[[Page 23182]]

facially meets the requirements of the statutory criteria outlined 
therein, as applicable. In the case of section 110(a)(2)(C), for 
example, the statute requires a state to have a SIP that ``include[s] a 
program to provide for . . . regulation of the modification and 
construction of any stationary sources . . . including a permit program 
as required in parts C and D of this subchapter.'' Thus, the EPA 
reviews a state's infrastructure SIP submission to assure that the 
structural elements of the state's PSD permitting program meets current 
CAA requirements for such programs, e.g., that it addresses GHG 
emissions.
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    \1\ See ``Approval and Disapproval and Promulgation of 
Implementation Plans; Texas; Infrastructure and Interstate Transport 
Requirements of the 1997 Ozone and the 1997 and 2006 
PM2.5 NAAQS,'' 76 FR 81371 (Dec. 28, 2011).
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    This is not to say that the EPA has no role in reviewing whether a 
state is faithfully implementing its approved SIP, or otherwise 
complying with the CAA and its implementing regulations. To the 
contrary, there are multiple statutory tools that the EPA can use to 
rectify problems with state implementation of its SIP, and the 
existence of these tools is consistent with the EPA's interpretation of 
section 110(a)(2) with respect to the Agency's role in reviewing 
infrastructure SIP submissions. For example, the CAA provides the EPA 
the authority to issue a SIP call, 42 U.S.C. 7410(k)(5); make a finding 
of failure to implement, id. Sec. Sec.  7410(m), 7509(a)(4); and take 
measures to address specific permits pursuant to the EPA's case-by-case 
permitting oversight. See, e.g., Sec.  7661d(b). The appropriateness of 
employing these authorities depends on the nature and extent of the 
particular implementation problems at issue.
    With respect to Montana's infrastructure SIP submission, the EPA 
analyzed the submission itself, and evaluated the text of its 
provisions for compliance with the relevant elements of section 
110(a)(2). In the proposal, the EPA explicitly evaluated the State's 
submission on a requirement-by-requirement basis and explained its 
views on the adequacy of the State's SIP for purposes of meeting the 
infrastructure SIP requirements.
    The EPA appreciates and takes seriously the commenters' assertions 
that Montana has adopted ``policy interpretations'' outside the context 
of the SIP that may undermine the State's implementation of the SIP as 
approved by the EPA. However, because this action involves a review of 
the SIP itself, the EPA is not evaluating the merits of these 
assertions concerning implementation of the SIP in the context of this 
action. Instead, the EPA intends to evaluate the merits of these 
assertions, separate from this action, at a future time. In the 
meantime, the EPA is finalizing its proposed approval of the 
infrastructure SIP submission that is currently before the Agency. If 
the EPA later determines that there are indeed concerns with respect to 
the implementation of the PSD program in Montana, the Agency intends to 
take appropriate action to ensure those problems are rectified using 
whatever statutory tools are appropriate to the implementation problem 
identified.
    With respect to the requirements related to PSD relevant to this 
approval of the infrastructure SIP submission, the EPA has determined 
that the State's SIP as previously approved, and as revised in this 
action, meets the relevant structural requirements for purposes of PSD 
in section 110(a)(2)(C), (D)(i)(II) element 3, and (J). Some examples 
of these basic structural SIP requirements include having state law 
authority to carry out the SIP, an overarching permitting program in 
place, and a properly deployed monitoring network. As to the PSD 
program in particular, these basic structural requirements include 
those provisions necessary for the permitting program to address all 
federally regulated pollutants and the proper sources. The EPA 
considers action on the infrastructure SIP submissions required by 
section 110(a)(1) and (2) to be an evaluation of a state's SIP to 
assure that it meets the basic structural requirements for the new or 
revised NAAQS, not a time to address all potential substantive defects 
in existing SIP provisions, or alleged defects in implementation of the 
SIP. [Therefore, EPA generally considers evaluations of a state's 
implementation of its NSR program to be outside the scope of an 
infrastructure SIP review, rather than an unambiguous requirement of 
the EPA's action on an infrastructure SIP with regard to section 
110(a)(2)(C).]
    Comment 3: The Sierra Club and MEIC comment letter gives a history 
of the Montana PSD program as well as a history of the corresponding 
federal PSD program with respect to how it is determined whether a 
physical or operational change at an existing major stationary source 
is subject to PSD permitting requirements. The comment discusses 
MTDEQ's policy interpretations recently set forth in a citizen suit 
enforcement proceeding, stating that these interpretations ``make 
Montana's implementation of the PSD program less stringent''. The 
Sierra Club and MEIC Comment Letter states the following on pages 4 and 
5:

    The basic structure of Montana's PSD permitting rules has been 
the same since the EPA's initial SIP approval of Montana's PSD 
rules. Specifically, Montana's PSD rules define the applicability to 
PSD for physical or operational changes at an existing source based 
on the same regulatory language in EPA's PSD regulations as of 1980. 
That is, to determine if a physical change or change in the method 
of operation at an existing major source is subject to PSD as a 
major modification, one evaluates changes in `actual emissions [.]

The comment evaluates the definition of ``actual emissions'' and how 
Montana's SIP has defined this term over the years, and notes two 
substantive revisions to the definition of ``actual emissions'' since 
1980, stating on pages 6, 7, and 8:

    The first revision was made in 1992, where EPA modified the 
definition of ``actual emissions'' to allow electric utility steam 
generating units (EGUs) to use the ``representative actual annual 
emissions,'' and adopted associated definitions including of 
``representative actual annual emissions'' and emissions reporting 
provisions for EGUs. 57 Fed. Reg. 32314 at 32335-6 (July 21, 1992); 
40 CFR 51.166(b)(21)(iv) and (v), (b)(30), and (b)(32). In addition, 
although EPA did not adopt any regulatory revisions regarding the 
actual emissions baseline before a physical or operational change, 
EPA set forth a presumption that it considers any 2 year period in 
the 5 years immediately preceding the physical or operational change 
at an EGU to be representative of normal source operations for the 
EGU. 57 Fed. Reg. 32325. The 1992 rulemaking is referred to as the 
``WEPCO Rule'' because the rule changes came about as a result of 
the 7th Circuit Court decision in Wisconsin Electric Power Co. v. 
Reilly, 893 F.2d 901 (7th Cir. 1990) (``WEPCO Decision'').
    A review of the current SIP-approved Montana rules show that 
Montana did not revise its PSD regulations to incorporate any of the 
regulatory changes of the 1992 WEPCO rulemaking.
    In 2002, EPA again revised the definition of ``actual 
emissions'' and adopted new terms and definitions of ``projected 
actual emissions'' and ``baseline actual emissions'' along with 
numerous other revisions to its PSD regulations. 67 Fed. Reg. 80186-
80289 (Dec 31, 2002, also known as ``NSR Reform'' Rule). EPA adopted 
a two-step process for determining PSD applicability for physical or 
operational changes. First, it must be determined if a project will 
result in a significant emission increase of any regulated NSR 
pollutant and, if so, then second, it must be determined if the 
project will result in a significant net emissions increase of any 
regulated NSR pollutant. 67 Fed. Reg. 80260; 40 CFR 
51.166(a)(7)(iv)(a)-(f). EPA essentially allowed all sources (not 
just EGUs as allowed in 1992) to use an actual-to-projected actual 
emissions increase test to determine whether a physical or 
operational change was a major modification, except in certain 
circumstances such as when a new emissions unit is added. 67 Fed. 
Reg. 80260-2; 40 CFR 51.166(a)(7)(iv)(a)-(f), (b)(40) and (b)(47).
    In the NSR Reform rules, EPA adopted several new rules. EPA 
adopted a new definition of ``baseline actual emissions'' which 
codified the 2-in-5 year presumptive baseline that EPA announced in 
the 1992

[[Page 23183]]

WEPCO rule for EGUs, and also promulgated a provision for non-EGUs 
allowing them to look back ten years before a physical or 
operational change in determining baseline emissions. 67 Fed. Reg. 
80263-4; 40 CFR 51.166(b)(47). EPA also adopted a new definition of 
``projected actual emissions'' which defines how modified sources 
are to project actual emissions when such modifications are not 
subject to the actual-to-potential to emit test pursuant to the 
procedures identified in 40 CFR 51.166(a)(7)(iv)(a)-(f). 67 Fed. 
Reg. 80262-3; 40 CFR 51.166(b)(40). In addition, EPA adopted 
provisions for reporting to permitting authorities pre- and post-
project when there is a reasonable possibility that a project that 
is not considered a major modification may result in a significant 
emissions increase. 67 Fed. Reg. 80264; 40 CFR 51.166(r)(6) and 
(r)(7). There were numerous other revisions to the federal 
permitting rules adopted in the December 31, 2002 rulemaking, such 
as requirements to establish PALs. Two other new provisions of the 
2002 NSR Reform rule regarding pollutant control projects and clean 
units were later eliminated from the PSD regulations, after being 
vacated by the U.S. Court of Appeals for the D.C. Circuit in New 
York v. EPA, 413 F. 3d 3 (D.C. Cir. 2005). 72 Fed. Reg. 32526-9 
(June 13, 2007). A review of the EPA-approved SIP for Montana shows 
that Montana did not adopt any of the 2002 New Source Review Reform 
revisions as revisions to its PSD regulations.
    Although EPA has made some revisions to its rules regarding 
baseline emissions and how to project future emissions for physical 
or operational changes at existing sources, it is clear that, since 
1986, the Montana SIP has continued to have the same definition of 
``actual emissions'' and the same applicability approach as applied 
under EPA's 1980 PSD rules. On its face, Montana's PSD rules track 
EPA's PSD rules as they existed in 1980, and Montana's rules do not 
implement the 1992 or 2002 federal rule revisions. Given that the 
1992 and 2002 federal rule revisions were intended to be less 
inclusive than the 1980 PSD rule, allowing for more modifications to 
not be considered as major modifications subject to PSD review, 
would be less stringent than the current federal PSD rules.
    Montana is implementing policy interpretations regarding the 
definition of ``actual emissions,'' which pertain to both the 
determination of actual emissions before a physical or operational 
change and the determination of the future emissions expected after 
a physical or operational change, which are less stringent than 
EPA's interpretation of the same language of its 1980 PSD rules, 
resulting in Montana's program as implemented being less stringent 
than EPA's 1980 PSD requirements. In addition, those policy 
interpretations of Montana's PSD program are less stringent than 
EPA's current PSD requirements reflective of NSR Reform.''

    Response: The commenter's assertion that Montana is, through policy 
interpretations, implementing its PSD program in a less-stringent 
manner than required by PSD rules is addressed in our response to 
comment 2. We note that, while Montana's alleged ``policy 
interpretations'' of its SIP are outside the scope of the EPA's review 
in the context of an infrastructure SIP submission, we evaluated the 
``structural'' requirements for a PSD program to fulfill the NAAQS 
infrastructure requirements as required in 110(a)(2)(C), (D)(i)(II) 
element 3, and (J). In the context of the specific applicability issues 
raised by the commenter, we have determined that Montana's PSD program 
provides for the implementation, maintenance, and enforcement of the 
NAAQS requirements being approved in this rulemaking by applying the 
EPA's 1980 PSD rules. In addition, EPA has evaluated the State's SIP 
for compliance with other structural elements such as the Phase 2 Ozone 
Implementation Rule, 2008 PM2.5 NSR, and 2010 
PM2.5 Increments (a complete discussion can be found in 
section VI. Program for enforcement of control measures of the proposed 
rule).
    While we agree with the history the commenter has provided with 
regard to what Montana has and has not adopted into the State's EPA-
approved PSD program, we note that Montana was not required to adopt 
any of the provisions of the 1992 WEPCO Rule. For example, the state of 
Utah adopted WEPCO revisions, which we acted on in 69 FR 51368 (Aug. 
19, 2004). In that rulemaking, we explained that states generally: 
``were not required to adopt revisions to implement these changes, 
although these changes are in effect in areas where the Federal PSD 
permitting regulations apply. Utah has opted to revise its NSR program 
to incorporate the changes to the EPA's NSR rules promulgated on July 
21, 1992.''
    We note that the commenter agrees with this premise. See, e.g., 
Sierra Club and MEIC Comment Letter at page 16 (stating that ``states 
were not required to adopt that new rule language'' in reference to the 
1992 WEPCO Rule). Because Montana was not required to adopt the 1992 
WEPCO Rule, or to revise its SIP in response to that EPA action, the 
EPA need not review the state's infrastructure SIP submission for 
consistency with the requirements of the 1992 WEPCO Rule. In the 
context of evaluating a state's infrastructure SIP submission with 
respect to PSD permitting program requirements, the EPA evaluates only 
whether the SIP meets structural requirements (e.g., having authority 
to address GHG emissions in such permits). Thus, the State's decision 
whether or not to revise its PSD permitting program to incorporate the 
changes contemplated in the 1992 WEPCO Rule does not preclude the EPA 
from approving Montana's infrastructure SIP in this action.
    This is consistent with the EPA's September 13, 2013, ``Guidance on 
Infrastructure State Implementation Plan (SIP) Elements Under Clean Air 
Act Sections 110(a)(1) and 110(a)(2),'' \2\ (2013 Guidance, contained 
within this docket), wherein we explain that: ``Structural PSD program 
provisions include provisions necessary for the PSD program to address 
all regulated sources and NSR pollutants, including GHG. Structural PSD 
provisions do not include provisions which under 40 CFR 51.166 are at 
the option of the air agency.''
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    \2\ Memorandum from Stephen D. Page, Director, Office of Air 
Quality Planning and Standards, Guidance on Infrastructure State 
Implementation Plan (SIP) Elements Under the Clean Air Act Sections 
110(a)(1) and 110(a)(2) (Sept. 13, 2013).
---------------------------------------------------------------------------

    In the EPA's 2013 Guidance and in several EPA rulemakings, the 
Agency discussed the issue of addressing the 2002 NSR Reform Rule, 
which followed the 1992 WEPCO Rule, within the context of 
infrastructure SIPs. Specifically, the EPA explained in the 2013 
Guidance that the issue of ``existing SIP provisions for PSD programs 
that have not addressed the NSR Reform Rules may be dealt with 
separately, outside of the context of acting on a state's 
infrastructure SIP.'' \3\ The EPA explained its reasoning for this 
approach to the NSR Reform Rules in a 2007 guidance document,\4\ which 
we further explained in our July 13, 2011 rulemaking (76 FR 41078. See 
page 41078, column three, first full paragraph through page 41079, 
first column).
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    \3\ 2013 Guidance at p. 28.
    \4\ ``Guidance on SIP Elements Required Under Section 110(a)(1) 
and (2) for the 1997 8-hour Ozone and PM2.5 National 
Ambient Air Quality Standards,'' from William T. Harnett, Director 
Air Quality Policy Division, to Air Division Directors, Regions I-X 
(October 2, 2007).
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Comment 4 Sierra Club and MEIC Comment Letter

    The comment asserts that Montana's ``policy interpretations'' of 
the term ``actual emissions'' as set forth in amicus briefs and 
appearances in a citizen suit PSD enforcement action against the 
Colstrip Power Plant are inconsistent and less stringent than the EPA's 
interpretation of the same language in the 1980 federal PSD regulations 
and are less stringent than the current federal PSD regulations. The 
comment also states that MTDEQ's interpretation of how to determine 
baseline emissions is inconsistent with and less stringent than the 
EPA's

[[Page 23184]]

historical and current PSD regulations. The comment states that the 
MTDEQ never informed the public of its policy interpretations set forth 
in the amicus briefs, and Montana does not have authority to implement 
policy without going through rulemaking.
    Response: In our response to comment 2, we discussed the difference 
between the legal sufficiency and the structural requirements of a PSD 
program within the context of evaluation of the infrastructure SIP 
submission and the implementation of the EPA approved SIP. The 
commenter's assertion that Montana's PSD regulations are less stringent 
than the 1980 federal PSD regulations and the current federal PSD 
regulations is based upon allegations concerning how Montana interprets 
federal PSD regulations and the State's own ``policy interpretations.'' 
As mentioned in our response to comment 2, these implementation 
concerns fall outside the scope of this action because the EPA is not 
evaluating the issue of how the state implements its PSD program in 
this context. In that same vein, the EPA does not consider this the 
appropriate context in which to evaluate whether MT DEQ's 
interpretations of PSD applicability tests, or how the State defines 
``actual emissions'' or ``like-kind replacements,'' etc., and whether 
these interpretations make Montana's PSD program less stringent than 
the 1980 federal PSD regulations and the current federal PSD 
regulations. As noted in our response above, the EPA has other 
authorities to take appropriate action to address alleged SIP 
implementation deficiencies.

III. Final Action

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

 Table 1--List of Montana Infrastructure Elements and Revisions That the
                            EPA Is Approving
------------------------------------------------------------------------
                                Approval
-------------------------------------------------------------------------
February 10, 2010 submittal--1997 and 2006 PM2.5 NAAQS:
    (D)(ii) for both the 1997 and 2006 PM2.5 NAAQS.
December 19, 2011 submittal--2008 Pb NAAQS:
    (A), (B), (C) with respect to minor NSR requirements, (D)(i)(I)
     elements 1 and 2, (D)(i)(II) element 4, (D)(ii), (E), (F), (G),
     (H), (J) with respect to requirements of sections 121 and 127, (K),
     (L) and (M).
January 3, 2013 submittal--2008 Ozone NAAQS:
    (A), (B), (C) with respect to minor NSR requirements, (D)(ii), (E),
     (F), (G), (H), (J) with respect to requirements of sections 121 and
     127, (K), (L) and (M).
June 4, 2013 submittal--2010 NO2 NAAQS:
    (A), (B), (C) with respect to minor NSR requirements, (D)(i)(I)
     elements 1 and 2, (D)(ii), (F), (G), (H), (J) with respect to
     requirements of sections 121 and 127, (K), (L) and (M).
July 15, 2013 submittal--2010 SO2 NAAQS:
    (A), (B), (C) with respect to minor NSR requirements, (D)(ii), (F),
     (G), (H), (J) with respect to requirements of sections 121 and 127,
     (K), (L) and (M).
December 17, 2015 submittal--2012 PM2.5 NAAQS:
    (A), (B), (C) with respect to minor NSR requirements, (D)(ii), (F),
     (G), (H), (J) with respect to requirements of sections 121 and 127,
     (K), (L) and (M).
August 21, 2012 submittal--Revisions to ARM, Prevention of Significant
 Deterioration:
    ARM 17.8.801(3), 17.8.801(21), 17.8.801(27), 17.8.804(1),
     17.8.818(7)(a)(iv)-(xi), 17.8.822(9), 17.8.822(10), 17.8.822(11),
     17.8.822(12) and 17.8.825(4).
December 17, 2015 submittal--New Rules to ARM, CAA Section 128
    New Rule I (ARM 17.8.150), II (ARM 17.8.151), III (ARM 17.8.152),
     and Montana Code Annotated 2-2-121(2)(e) and 2-2-121(8).
------------------------------------------------------------------------

 Table 2--List of Montana Infrastructure Elements and Revisions That the
                     EPA Is Conditionally Approving
------------------------------------------------------------------------
                          Conditional approval
-------------------------------------------------------------------------
February 10, 2010 submittal--1997 and 2006 PM2.5 NAAQS:
    (D)(i)(II) element 3 for the 2006 PM2.5 NAAQS.
December 19, 2011 submittal--2008 Pb NAAQS:
    (C) and (J) with respect to PSD, and (D)(i)(II) element 3.
January 3, 2013 submittal--2008 Ozone NAAQS:
    (C) and (J) with respect to PSD, and (D)(i)(II) element 3.
June 4, 2013 submittal--2010 NO2 NAAQS:
    (C) and (J) with respect to PSD, and (D)(i)(II) element 3.
July 15, 2013 submittal--2010 SO2 NAAQS:
    (C) and (J) with respect to PSD, and (D)(i)(II) element 3.

[[Page 23185]]

 
December 17, 2015 submittal--2012 PM2.5 NAAQS:
    (C) and (J) with respect to PSD, and (D)(i)(II) element 3.
March 24, 2015 submittal--Revisions to ARM, Prevention of Significant
 Deterioration:
    ARM 17.8.818(7)(a)(iii).
------------------------------------------------------------------------

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

       Table 4--List of Montana Infrastructure Elements and Revisions That the EPA Is Taking No Action On
----------------------------------------------------------------------------------------------------------------
                                                    No action
-----------------------------------------------------------------------------------------------------------------
                                                                           Reason ``No Action''
                                                         -------------------------------------------------------
                                                                                        Revision
                                                                          Revision       deletes      Revision
                                                           Revision to    made in a    section of    superseded
                     Revised section                       be made in     separate       the ARM     by revision
                                                             future      rulemaking       never     in March 24,
                                                           rulemaking    action (80     approved     2015 State
                                                             action       FR 72937)   into State's    submittal
                                                                                           SIP
----------------------------------------------------------------------------------------------------------------
January 3, 2013 submittal--2008 Ozone NAAQS:
    (D)(i)(I) elements 1 and 2..........................  ............            x   ............  ............
July 15, 2013 submittal--2010 SO2 NAAQS:
    (D)(i)(I) elements 1 and 2..........................            x   ............  ............  ............
December 17, 2015 submittal--2012 PM2.5 NAAQS:
    (D)(i)(I) elements 1 and 2..........................            x   ............  ............  ............
August 21, 2012 submittal--Revisions to ARM, Prevention
 of Significant Deterioration:
    ARM 17.8.818(7)(a)(iii).............................  ............  ............  ............            x
    ARM 17.8.820(2).....................................  ............  ............  ............            x
March 24, 2015 submittal--Revisions to ARM, Prevention
 of Significant Deterioration:
    ARM 17.8.820(2).....................................  ............  ............            x   ............
----------------------------------------------------------------------------------------------------------------

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference of the ARM 
and Montana Code Annotated discussed in section III, Final Action of 
this preamble. The EPA has made, and will continue to make, these 
documents generally available electronically through 
www.regulations.gov and/or in hard copy at the appropriate EPA office 
(see the ADDRESSES section of this preamble for more information).

V. Statutory and Executive Orders Review

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
final action merely approves some state law as meeting federal 
requirements; this final action does not impose additional requirements 
beyond those imposed by state law. For that reason, this final action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, Oct. 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive

[[Page 23186]]

Order 13132 (64 FR 43255, Aug. 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and,
     Does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898 (59 FR 7629, Feb. 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where the EPA or an Indian tribe has demonstrated 
that a tribe has jurisdiction. In those areas of Indian country, the 
rule does not have tribal implications and will not impose substantial 
direct costs on tribal governments or preempt tribal law as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000).
    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. The EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by June 20, 2016. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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 CAA section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

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

    Dated: March 30, 2016.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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. Section 52.1370 is amended by:
0
a. In paragraph (c) adding in numerical order, the table entries for 
``17.8.150'', ``17.8.151'', and ``17.8.152''; and revising the table 
entries for ``17.8.801'', ``17.8.804'', ``17.8.818'', ``17.8.822'', and 
``17.8.825''; and
0
b. In paragraph (e), under ``(1) Statewide'' adding three entries at 
the end of the table.
    The revisions and additions read as follows:

Sec.  52.1370  Identification of plan.

* * * * *
    (c) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           State      EPA final rule
            State citation                       Rule title           effective date       date         Final rule citation             Comments
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      (1) Statewide
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                         (i) Administrative Rules of Montana, Subchapter 01, General Provisions
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
17.8.150.............................  Definitions..................      10/30/2015       4/20/2016  [Insert Federal          .........................
                                                                                                       Register citation].
17.8.151.............................  Board Action.................      10/30/2015       4/20/2016  [Insert Federal          .........................
                                                                                                       Register citation].
17.8.152.............................  Reporting....................      10/30/2015       4/20/2016  [Insert Federal          .........................
                                                                                                       Register citation].
--------------------------------------------------------------------------------------------------------------------------------------------------------
                       (vi) Administrative Rules of Montana, Subchapter 08, Prevention of Significant Deterioration of Air Quality
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
17.8.801.............................  Definitions..................      10/14/2011       4/20/2016  [Insert Federal          .........................
                                                                                                       Register citation].
17.8.804.............................  Ambient Air Increments.......      10/14/2011       4/20/2016  [Insert Federal          .........................
                                                                                                       Register citation].
17.8.818.............................  Review of Major Stationary         10/10/2014      4/20/2016.  [Insert Federal          .........................
                                        Source and Major                                               Register citation].
                                        Modifications--Source
                                        Applicability and Exemptions.
17.8.822.............................  Air Quality Analysis.........      10/14/2011       4/20/2016  [Insert Federal          .........................
                                                                                                       Register citation].
17.8.825.............................  Sources Impacting Federal          10/14/2011       4/20/2016  [Insert Federal          .........................
                                        Class I Areas--Additional                                      Register citation].
                                        Requirements.
 
 

[[Page 23187]]

 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                                                                   Notice of
                 Title/subject                       State        final rule              NFR citation
                                                effective date       date
----------------------------------------------------------------------------------------------------------------
                                                  (1) Statewide
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Infrastructure Requirements for the 2008 Lead,             N/A       4/20/2016  [Insert Federal Register
 2008 8-hour Ozone, 2010 NO2, 2010 SO2, and                                      citation].
 2012 PM2.5 National Ambient Air Quality
 Standards.
Infrastructure Requirements, Interstate                    N/A       4/20/2016  [Insert Federal Register
 Transport of Pollution 110(a)(2)(D)(ii) for                                     citation].
 the 1997 and 2006 PM2.5 NAAQS.
Montana Code Annotated 2-2-121(2)(e) and 2-2-              N/A       4/20/2016  [Insert Federal Register
 121(8).                                                                         citation].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2016-08916 Filed 4-19-16; 8:45 am]
 BILLING CODE 6560-50-P
```