Montana Department of 

ENVIRONMENTAL QuALITY 

P.O. Box 200901 • Helena, MT 59620-0901 • (406) 444-2544 • 

Richard R. Long, Director 

Air & Radiation Program 

EPA Region 8 - Mailcode 8P-AR 

999 18th Street - Suite 300 

Denver, CO 80202-2466 

August 19, 2004 

Re: Comments on Open Burning Rules- 69 FR 43371 - July 20, 2004 

Docket ID No. R08-0AR-2004-MT-0001 

Dear Mr. Long: 

Judy Martz, Governor 

www.deq.state.mt.us 

EPA proposes to disapprove a provision (Administrative Rules of Montana [ARM] 

17.8.604[l][a]) allowing the Montana Department of Environmental Quality (Department), on a 

case-by-case basis, to approve open burning of material moved from the premises at which it was 

generated. The Department disagrees with this proposed action. 

Department Discretion and Administrative Authority 

States implement regulatory authority in a manner necessary to attain and maintain air 

quality standards. This implementation generally takes the form of interpreting and 

administering rules. Not every rule interpretation resulting in regulatory action should be 

construed as deviating from the federally enforceable State Implementation Plan (SIP) and or be 

mischaracterized as an ad hoc SIP revision. 

Congress invests the primary responsibility to protect air quality with states. Pursuant to 

42 USC §7410, states shall adopt a plan providing for the implementation, maintenance, and 

enforcement of the National Ambient Air Quality Standards (NAAQS). In Whitman v. American 

Trucking Associations, 121 S.Ct. 903 (2001), the court affirmed that states are the primary 

implementers of the rules protecting NAAQS. "It is to the States that the Act assigns initial and 

primary responsibility for deciding what emissions reductions will be required from which 

sources." 

The court determined in Train v. Natural Resources Defense Council, Inc., 95 S.Ct. 1470 

(1975) that states may use discretion when implementing regulations as long as the action 

operates under a protective regulatory umbrella ensuring the attainment and maintenance of 

NAAQS. "Thus, so long as the ultimate effect of a State's choice of emission limitations is 

Centralized Services Division • Enforcement Division • Permitting & Compliance Division • Planning, Prevention & Assistance Division • Remediation Division 
Mr. Richard R. Long 

August 19, 2004 

Page 2 of 5 

compliance with the national standards for ambient air, the State is at liberty to adopt whatever 

mix of emission limitations it deems best suited to its particular situation." · 

Regarding the proposed disapproval of ARM l 7.8.604(l)(a), the "mix of emission 

limitations" includes the ability to exercise Department discretion to allow open burning of 

material moved to an alternative site for purposes of better attaining and maintaining the 

NAAQS. 

The intent of ARM l 7.8.604(1)(a) is to allow movement of material for open burning to 

locations that minimize adverse health effects caused by exposure to smoke emissions. For 

example, when municipalities experience massive tree damage, disposal of material by open 

burning within city limits would expose populations to smoke emissions. However, if material is 

relocated to an alternate site, populations are better protected from adverse health effects caused 

by exposure to smoke emissions. 

By their very nature, administrative agencies are frequently required to exercise 

discretion. Several instances of Department discretion appear in the Montana air quality rules 

that EPA has approved into the SIP and the Federal Clean Air Act (FCAA) and EPA's own 

regulations similarly provide for exercise of EPA' s agency discretion. The following are 

examples of provisions of FCAA in which Congress delegated authority to EPA to make 

discretionary decisions. 

• Section 108(a)(l )(A): the Administrator of EPA has discretion to establish and revise the 

list of air pollutants that may reasonably be anticipated to endanger public health or 

welfare. 

• Section 108( c ): the Administrator has discretion to modify criteria concerning control 

techniques. 

• Section 11 O(b ): the Administrator has discretion to extend the period for submission of 

any SIP that implements a national secondary ambient air quality standard. 

• Section l 12(c)(4): the Administrator has discretion to list categories or subcategories of 

sources previously regulated before the Clean Air Act Amendments of 1990. 

• Section l 12(g)(2)(B) and 0)(5): the Administrator or the state have discretion to set caseby-case maximum achievable control technology emission limits. 

• Section l 13(d)(2)(B): the Administrator has discretion to "compromise, modify, or 

remit, with or without conditions, any administrative penalty ... " 

• Section 169(3): the permitting authority has discretion, on a case-by-case basis, to 

determine the maximum degree of pollutant reduction achievable. (Montana's definition 

of best available control technology (BACT) is based on the definition of BACT in 

Section 169(3) ). 
Mr. Richard R. Long 

August 19, 2004 

Page 3of5 

• Section 182(a)(4): the Administrator "may, in the Administrator's discretion, require 

States to submit a schedule for submitting any of the revisions or other items required 

under this subsection." 

• Section 202(m)(l): the Administrator "may, in the Administrator's discretion, 

promulgate regulations requiring manufacturers to install such onboard diagnostic 

systems on heavy-duty vehicles and engines." 

Department discretion under the rule change is not without restriction. Courts have 

firmly established that an agency may not abuse its discretion. Abuse of discretion occurs if an 

action is taken arbitrarily without conscientious judgment or exceeds the bounds of reason. 

Simmons Oil Corp. v. Wells Fargo Bank, 1998 MT 119, ii 17, 289 Mont. 119, ii 17, 960 P.2d 

291, ii 1 7. In exercising discretion under the rule change, the Department may not act arbitrarily 

or umeasonably, and any decision to approve open burning of waste moved from the premises 

where it was generated would need to be consistent with the intent of the open burning rules. If 

not, the decision would be subject to challenge and reversal by the courts. 

BACT and Department Discretion 

42 USC§§ 7410(1), 7410(a)(2)(A) and (D) of FCAA require that each SIP include 

measures "necessary or appropriate to meet the applicable requirements of this Act." The SIP 

includes such measures, including, among many other requirements, incorporation ofNAAQS in 

ARM 17.8.202(1)(d) and the requirement in the State's open burning rules that all open burning 

sources are subject to BACT, ARM 17.8.601(1). 

ARM 17.8.601(1)(x), definition of BACT, already provides Department discretion in the 

selection of sites to minimize smoke impacts. Allowing the movement of materials to minimize 

smoke impacts includes consideration of conditions such as population exposure, dispersion, 

scheduling, ignition and burning techniques, etc. The state has other examples of open burning 

rules, including the definition of BACT itself, that provide for Department discretion. These 

include the following: 

• BACT. ARM 17.8.601(1). The Department determines, on a case-by-case basis, the 

most optimal conditions and techniques for open burning. 

• Winter open burning. ARM 17.8.601(1)(c). The Department determines, on a case-bycase basis, whether the meteorology in winter is conducive to open burning. 

• Emergency open burning. ARM 17.8.611. The Department determines if an emergency 

situation is sufficiently critical to allow open burning. This material may be moved from 

the premises from where it was generated prior to burning. 

• Conditional. open burning. ARM 17.8.612. The Department determines whether or not 

one-time burning may occur and may place other restrictions on the conditional permit 
Mr. Richard R. Long 

August 19, 2004 

Page 4of5 

burner as it sees fit. This material may be moved from the premises from where it was 

generated prior to burning. 

Open Burning Programs and NAAQS Protection 

Unlike certain stationary source programs required under FCAA, 42 USC 7401, et seq., 

to attain and maintain compliance with NAAQS, FCAA does not require states to operate open 

burning programs. The State of Montana has determined that it is appropriate to regulate open 

burning to maintain compliance with state and federal ambient air quality standards and to 

provide further protection of air quality in the state and has submitted its open burning rules to 

EPA for approval into the SIP. However, this submission is not required by FCAA or EPA. 

EPA has not asserted the present minor rule change poses a threat to protection of NAAQS. 

Section llO(i) Applicability 

EPA alleges a provision for Department discretion is inconsistent with FCAA Section 

1 lO(i) that requires a formal SIP revision any time a rule modification occurs. 42 USC §7410(i) 

prohibits administrative action that amounts to an ad hoc revision of a SIP rule when taken with 

respect to any stationary source. The Department is not modifying the SIP each time it approves 

movement of material for purposes of conducting open burning in compliance with ARM 

17.8.601(1) BACT. 

42 USC§ 7410(i), states in relevant part that "no order, suspension, plan revision, or 

other action modifying any requirement of an applicable implementation plan may be taken with 

respect to any stationary source by the State or the Administrator." If 42 USC § 7410 (i) applies 

to the proposed SIP revision, exercising Department discretion under ARM l 7.8.604(l)(a) to 

allow open burning of material moved from the premises where it was generated would not 

constitute an action modifying the SIP. 

Upon approval of the proposed SIP revision by EPA, the SIP would include the rule 

provision allowing Department discretion to approve open burning and, in exercising this 

discretion, the Department would be implementing the rule rather than modifying the SIP. The 

Department is unaware of any authority for EPA' s position that exercising discretion under a rule 

in the SIP constitutes a modification of the SIP. 

42 USC§ 7410(1) ofFCAA, "Plan Revisions," which provides the controlling criteria for 

EPA approval of a SIP revision, states that: "The Administrator shall not approve a revision of a 

plan if the revision would interfere with any applicable requirement concerning attainment and 

reasonable further progress (as defined in 42 USC§ 7501), or any other applicable requirement 
• 

Mr. Richard R. Long 

August 19, 2004 

Page 5 of 5 

of this Act." EPA has not asserted the Department's open burning rule change would interfere 

with any applicable requirement concerning attainment and reasonable further progress. EPA 

has merely asserted, apparently based on EPA policy, that the rule change would be inconsistent 

with 42 USC § 741 O(i). However, as discussed above, there is no present issue of the 

Department revising the SIP without completing the formal SIP revision process, and 42 USC § 

7410(i) does not apply. 

In the past, EPA has recognized 42 USC§ 7410(1) as providing the appropriate standard 

for EPA review of a proposed SIP revision. On August 13, 2001, in 66 Federal Register 42427, 

at page 42430, EPA approved changes to the state's open burning rules as a revision to the SIP, 

stating that: "we believe these rule changes will not interfere with attainment and maintenance 

of the PM-10 NAAQS or increment in Montana." On November 15, 2001, in 66 Federal 

Register 57391, at page 57393, EPA approved revisions to the SIP based on changes to the 

Missoula air pollution control rules, including changes to the outdoor burning rules, expressly 

noting 42 USC§ 7410(1) as providing the controlling criteria and stating that: "EPA has 

determined that the revisions ... do not interfere with the federally approved attainment 

demonstrations for the area ... Therefore, 42 USC § 7410(1) requirements are satisfied." On 

August 28, 2002, in 67 Federal Register 55125, at page 55128, EPA approved additional changes 

to the state's air quality rules as revisions to the SIP, again expressly acknowledging 42 USC § 

7410(1) as providing the controlling criteria and stating that: "The Montana SIP revisions that 

are the subject of this document do not interfere with the maintenance of the NAAQS or any 

other applicable requirement of the Act ... Therefore, section 110(1) requirements are satisfied." 

This history of EPA recognizing 42 USC § 7410(1) as providing the controlling criteria 

for approval of a proposed SIP revision contrasts with the present proposed disapproval, in 

which EPA does not even cite 42 USC§ 7410(1), does not assert that the proposed rule change 

would interfere with maintenance ofNAAQS, and does not provide any basis for a conclusion 

that the rule changes would interfere with maintenance of NAAQS. EPA has merely asserted 

that the rule change "is considered" by EPA to be Department discretion. As discussed above, 

EPA has not provided any authority for a conclusion that this Department discretion would 

interfere with maintenance ofNAAQS or violate any other applicable requirement ofFCAA. 

Questions regarding these comments may be directed to Bob Habeck at ( 406) 444-7305. 

Sincerely, 

~.JI'~~ Jan P. Sensibaugh 

Director