### 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 FR43371

- July 20, 2004 Docket ID No. R08-0AR-2004-MT-0001 DearMr. Long: Judy Martz, Governor www.deq.state.mt.us

EPA proposes to disapprove a provision (Administrative Rules ofMontana [ARM] 17.8.604[l][a]) allowing the Montana Department ofEnvironmental Quality (Department), on a case-by-case basis, to approve open burning ofmaterial moved from the premises at which it was generated. The Department disagrees withthis proposed action.
Department Discretion and Administrative Authority States implementregulatory authority in a manner necessaryto attain and maintain air quality standards. This implementation generally takes the form ofinterpreting and administering rules. Notevery rule interpretationresulting 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. Pursuantto 42 USC §7410, states shall adopt a planproviding for the implementation, maintenance, and enforcement ofthe National Ambient Air Quality Standards (NAAQS). In Whitman v. American TruckingAssociations, 121 S.Ct. 903 (2001), the court affirmed that states are the primary implementers ofthe 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 ResourcesDefense Council, Inc., 95 S.Ct. 1470 (1975) that states mayuse 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 ofa State's choice ofemission limitations is

Centralized Services Division • Enforcement Division • Permitting & Compliance Division • Planning, Prevention & Assistance Division • Remediation DivisionMr. Richard R. Long August 19, 2004 Page 2 of5
compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix ofemission limitations it deems best suitedto its particular situation." · Regarding the proposed disapproval ofARM l7.8.604(l)(a), the "mix ofemission limitations" includes the ability to exercise Department discretion to allow open burning of material moved to an alternative site for purposes ofbetter attaining and maintaining the NAAQS. The intent ofARM l7.8.604(1)(a) is to allow movement ofmaterial for openburning to locations that minimize adverse health effects causedby exposure to smoke emissions. For example, whenmunicipalities experience massive tree damage, disposal ofmaterial by open burning within city limits would expose populations to smoke emissions. However, ifmaterial is relocatedto an alternate site, populations are betterprotected from adverse health effects caused by exposure to smoke emissions. Bytheir very nature, administrative agencies are frequently required to exercise discretion. Several instances ofDepartment discretion appear in the Montana air quality rules that EPAhas approved into the SIP and the Federal Clean AirAct (FCAA) and EPA's own regulations similarly provide for exercise ofEPA's agency discretion. The following are examples ofprovisions ofFCAA in which Congress delegated authority to EPA to make discretionary decisions.

• Section 108(a)(l)(A): the Administrator ofEPA has discretionto establish and revise the list ofair pollutants that mayreasonably be anticipated to endangerpublic health or welfare. • Section 108( c): the Administratorhas discretionto modify criteria concerning control techniques. • Section 11O(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 previouslyregulated before the Clean AirActAmendments of 1990. • Section l 12(g)(2)(B) and 0)(5): the Administrator orthe state have discretionto 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 ofpollutant reduction achievable. (Montana's definition ofbest available control technology (BACT) is based onthe definition ofBACT 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 ofthe revisions or otheritems required under this subsection." • Section 202(m)(l): the Administrator "may, inthe Administrator's discretion, promulgate regulations requiring manufacturers to install such onboard diagnostic systems onheavy-duty vehicles and engines." Department discretion under the rule change is not withoutrestriction. Courts have firmly established that an agency may not abuse its discretion. Abuse ofdiscretion occurs ifan action is taken arbitrarily without conscientiousjudgment or exceeds the bounds ofreason. Simmons Oil Corp. v. Wells Fargo Bank, 1998 MT 119, 

## ii 17, 289 Mont. 119, 

## ii 17, 960 P.2d 291, 

## ii 1 7. Inexercising discretion underthe rule change, the Departmentmay not act arbitrarily or umeasonably, and any decision to approve openburning ofwaste moved from the premises where it was generated would need to be consistent with the intent ofthe openburning rules. If not, the decision would be subjectto challenge and reversal by the courts.


### BACT and Department Discretion 42 USC§§ 7410(1), 7410(a)(2)(A) and (D) ofFCAA require that each SIP include measures "necessary or appropriate to meet the applicable requirements ofthis Act." The SIP includes such measures, including, amongmany other requirements, incorporation ofNAAQS in ARM 17.8.202(1)(d) and the requirement in the State's open burning rules that all openburning sources are subject to BACT, ARM 17.8.601(1). ARM 17.8.601(1)(x), definition ofBACT, already provides Department discretion in the selection ofsites to minimize smoke impacts. Allowing the movement ofmaterials to minimize smoke impacts includes consideration ofconditions such as population exposure, dispersion, scheduling, ignition and burning techniques, etc. The state has other examples ofopenburning rules, including the definition ofBACT 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 openburning. ARM 17.8.601(1)(c). The Department determines, ona case-bycase basis, whether the meteorology in winter is conducive to openburning. • Emergency open burning. ARM 17.8.611. The Department determines ifan emergency situation is sufficiently critical to allow open burning. This material maybe moved from the premises from where it was generated prior to burning. • Conditional.open burning. ARM 17.8.612. The Department determines whether ornot one-time burning may occur and may place other restrictions onthe conditional permitMr. Richard R. Long August 19, 2004 Page 4of5

burner as it sees fit. This material maybe 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 withNAAQS, FCAA does not require states to operate open burning programs. The State ofMontana 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 ofair quality in the state and has submitted its openburning rules to EPA for approval into the SIP. However, this submission is notrequired by FCAA or EPA. EPA has not asserted the present minorrule change poses a threatto protection ofNAAQS.


### Section llO(i) Applicability EPA alleges a provision for Department discretion is inconsistent with FCAA Section 1lO(i) that requires a formal SIP revision any time a rule modification occurs. 42 USC §7410(i) prohibits administrative actionthat amounts to an ad hoc revision ofa SIP rule whentaken with respect to any stationary source. The Department is not modifying the SIP eachtime it approves movement ofmaterial for purposes ofconducting openburning in compliance withARM 17.8.601(1) BACT. 42 USC§ 7410(i), states in relevantpartthat "no order, suspension, planrevision, or other action modifying anyrequirement ofan applicable implementationplanmay be taken with respect to any stationary source by the State orthe Administrator." 

### If42 USC § 7410 (i) applies to the proposed SIP revision, exercising Department discretion underARM l7.8.604(l)(a) to allow open burning ofmaterial moved from the premises where it was generated would not constitute an action modifying the SIP. Upon approval ofthe proposed SIP revision byEPA, 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 ratherthanmodifying the SIP. The Department is unaware ofany authority for EPA's position that exercising discretion under a rule in the SIP constitutes a modification ofthe SIP. 42 USC§ 7410(1) ofFCAA, "PlanRevisions," which provides the controlling criteria for EPA approval ofa SIP revision, states that: "The Administrator shall not approve a revision ofa plan ifthe revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in42 USC§ 7501), or any other applicable requirement•

Mr. Richard R. Long August 19, 2004 Page 5 of5

ofthis 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 onEPA policy, thatthe rule change would be inconsistent with 42 USC § 741 O(i). However, as discussed above, there is no present issue ofthe Departmentrevising the SIP without completing the formal SIP revisionprocess, and 42 USC § 7410(i) does not apply. Inthe past, EPA has recognized 42 USC§ 7410(1) as providing the appropriate standard for EPA review ofa 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: "webelieve these rule changes will not interfere with attainment and maintenance ofthe PM-10 NAAQS or increment inMontana." OnNovember 15, 2001, in 66 Federal Register 57391, atpage 57393, EPA approved revisions to the SIP based on changes to the Missoula air pollution control rules, including changes to the outdoor burningrules, expressly noting 42 USC§ 7410(1) as providing the controlling criteria and stating that: "EPAhas determined thatthe 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 statingthat: "The Montana SIP revisions that are the subject ofthis document do not interfere withthe maintenance ofthe NAAQS or any other applicable requirement ofthe Act

... Therefore, section 110(1) requirements are satisfied." This history ofEPA recognizing 42 USC § 7410(1) as providing the controlling criteria for approval ofa proposed SIP revision contrasts with the presentproposed disapproval, in which EPA does not even cite 42 USC§ 7410(1), does not assert that the proposedrule change would interfere with maintenance ofNAAQS, and does notprovide any basis for a conclusion that the rule changes would interfere with maintenance ofNAAQS. EPA has merely asserted that the rule change "is considered" by EPA to be Department discretion. As discussed above, EPA has notprovided any authority for a conclusion that this Department discretion would interfere with maintenance ofNAAQS orviolate any other applicable requirement ofFCAA. Questions regarding these comments may be directedto Bob Habeck at (406) 444-7305. Sincerely,

# ~.JI'~~ Jan P. Sensibaugh Director