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[Federal Register Volume 76, Number 4 (Thursday, January 6, 2011)]
[Proposed Rules]
[Pages 758-763]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18]

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 ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2007-0662; FRL-9248-2]

Disapproval and Promulgation of Air Quality Implementation Plans; 
Montana; Revisions to the Administrative Rules of Montana--Air Quality, 
Subchapter 7, Subchapter 16 and Subchapter 17

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to disapprove portions of revisions and new 
rules as submitted by the State of Montana on October 16, 2006 and 
November 1, 2006. Montana adopted these rules on December 2, 2005 and 
March 23, 2006 and these rules became State-effective on January 1, 
2006. These revisions and new rules do not meet the requirements of the 
Clean Air Act and EPA's Minor New Source Review (NSR) regulations. EPA 
has concluded that none of the identified elements for the submitted 
revisions and new rules are

[[Page 759]]

severable from each other. The intended effect of this action is to 
propose to disapprove these rules as they are inconsistent with the 
Clean Air Act. This action is being taken under section 110 of the 
Clean Air Act.

DATES: Comments must be received on or before February 7, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2007-0662, by one of the following methods:
    http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     E-mail: leone.kevin@epa.gov.
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Callie A. Videtich, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129.
     Hand Delivery: Callie A. Videtich, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only 
accepted Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal 
holidays. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2007-0662. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA, without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting 
comments, go to Section I. General Information of the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly-available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Program, 
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129. EPA requests that if at all possible, you 
contact the individual listed in the FOR FURTHER INFORMATION CONTACT 
section to view the hard copy of the docket. You may view the hard copy 
of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air Program, Mailcode 8P-
AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, (303) 312-6227, or leone.kevin@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
II. What is being addressed in this document?
III. EPA Review and Proposed Action on SIP Revisions
IV. Summary of EPA's Proposed Action
V. Statutory and Executive Order Reviews

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) Minor NSR means NSR established under section 110 of the Act 
and 40 CFR 51.160.
    (iv) NSR means new source review, a phrase intended to encompass 
the stationary source regulatory programs that regulate the 
construction and modification of stationary sources as provided under 
CAA section 110(a)(2)(C), CAA Title I, parts C and D, and 40 CFR 51.160 
through 51.166.
    (v) The initials SIP mean or refer to State Implementation Plan.
    (vi) The words State or Montana mean the State of Montana, unless 
the context indicates otherwise.
    (vii) NAAQS means National Ambient Air Quality Standards.

I. General Information

A. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information in a disk 
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM 
as CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.

[[Page 760]]

    h. Make sure to submit your comments by the comment period deadline 
identified.

II. What is being addressed in this document?

    On October 16, 2006, the State of Montana submitted revisions to 
revise the Montana State Implementation Plan (SIP) and rules. This 
submission contained revisions to Administrative Rules of Montana (ARM) 
17.8.743(1), and new rules I-VI, codified as ARM 17.8.1601, 17.8.1602, 
17.8.1603, 17.8.1604, 17.8.1605, and 17.8.1606, pertaining to the 
regulation of oil and gas well facilities, and 17.8.759, pertaining to 
Montana air quality permit applicability. The revisions to ARM 
17.8.743(1), 17.8.1601, 17.8.1602, 17.8.1603, 17.8.1604, 17.8.1605, and 
17.8.1606 provide, generally, that an owner or operator of an oil and 
gas well facility for which a Montana air quality permit is required 
may wait until 60 days after the well completion date before submitting 
an application for a permit. EPA is proposing to act on the revisions 
to these seven regulations in this notice. The Montana Board of 
Environmental Review (Board) adopted these revisions to existing SIP 
revisions and new rules on December 2, 2005. ARM 17.8.759 is being 
addressed in a separate action (see 75 FR 9834-9843). The submission 
also contains revisions to ARM 17.8.1402 pertaining to incorporation by 
reference. This revision was addressed by EPA in a previous action (see 
75 FR 3993-3996). In addition to these revisions, on October 16, 2006, 
Montana is also withdrawing ARM 17.8.743(1)(c) regarding the 
applicability of incinerators in the Montana air pollution program 
rules. ARM 17.8.743(1)(c) was inadvertently included in the submission 
dated May 28, 2003. The Board adopted ARM 17.8.743(1)(c) on December 6, 
2002.
    On November 1, 2006, the State of Montana submitted revisions to 
revise the Montana SIP and rules. This submission contained revisions 
to ARM 17.8.504, 17.8.505, 17.8.744, 17.8.1204 and new rules I-IX, 
codified as ARM 17.8.1701, 17.8.1702, 17.8.1703, 17.8.1704, 
17.8.1705,17.8.1710, 17.8.1711, 17.8.1712 and 17.8.1713 pertaining to 
the regulation of oil and gas well facilities. The revision to ARM 
17.8.504 pertains to air quality permit application fees; ARM 17.8.505 
pertains to air quality operation fees; ARM 17.8.744(l) provides that a 
Montana air quality permit is not required for facilities that register 
with the department in accordance with ARM 17.8.17; and ARM 17.8.1204 
addresses air quality operating permit program applicability. The Board 
adopted these new rules and rule amendments on March 23, 2006. EPA is 
proposing to act on all these rule submissions in this action.
    EPA notes that ARM 17.8.1204 (regarding Air Quality Operating 
Permit Program Applicability) and ARM 17.8.505 (regarding Air Quality 
Operation Fees) are part of the Title V and Part 70 regulations which 
we do not approve into the SIP. Instead, we approve operating permit 
regulations under our operating permit regulations at 40 CFR part 70. 
Thus, we intend to consider approval of Montana's proposed Part C 
revisions pursuant to our part 70 regulations at such time as Montana 
submits an appropriate request under 40 CFR 70.4(i). The revisions are 
meaningless absent their regulatory context, and that regulatory 
context is not part of the EPA-approved SIP and is not incorporated by 
reference into 40 CFR part 52. Instead, the approval status of 
Montana's part 70 Program is reflected in 40 CFR part 70, Appendix A. 
Thus, because we are obligated to act on SIP submissions, we plan to 
disapprove these revisions as a revision to Montana's SIP. If the State 
requests to withdraw part C from the SIP revision prior to the time we 
take final action, we would not be obligated to take final action 
because part C would no longer be pending before the Agency as a SIP 
revision. Additionally, if requested by the State, we will separately 
consider these revisions as a revision to the approved operating permit 
program for the State.
    The November 1, 2006 submission also contains revisions to the 
following rules: ARM 17.8.101, ARM 17.8.102, ARM 17.8.103, ARM 
17.8.302, ARM 17.8.767, ARM 17.8.801, ARM 17.8.802, ARM 17.8.818, ARM 
17.8.902 and ARM 17.8.1002 pertaining to incorporation by reference of 
current federal regulations and other materials into air quality rules. 
EPA is not acting on these rule submissions. These revisions were 
addressed by EPA in a previous action (see 75 FR 3993-3996).
    These proposed amendments to existing new rules and adoption of new 
rules listed above that are the subject of this notice, hereafter 
referred to as ``the Program,'' would establish a registration system 
for certain facilities that presently require a minor NSR air quality 
permit under the SIP regulations. The Program would establish a general 
registration system for oil and gas well facilities. The Program would 
allow the owner or operator of an oil or gas well facility to register 
with the Montana Department of Environmental Quality (MDEQ) in lieu of 
submitting a permit application and obtaining a permit to construct or 
modify the source. Currently, with specific exemptions, the 
administrative rules adopted under the CAA of Montana and approved by 
EPA into the SIP, require the owner or operator of sources of air 
pollution to obtain a permit prior to construction or modification.

III. EPA Review and Proposed Action on SIP Revisions

    EPA is proposing to disapprove the revisions and new rules as 
submitted by Montana on October 16, 2006 and November 1, 2006, as 
identified above.
    Section 110(a)(2)(C) of the Act requires that each implementation 
plan include a program to regulate the construction and modification of 
stationary sources, including a permit program as required by parts C 
and D of title I of the Act, as necessary to assure that the NAAQS are 
achieved. Parts C and D, which pertain to prevention of significant 
deterioration (PSD) and nonattainment, respectively, address major NSR 
programs for stationary sources, and the permitting program for 
``nonmajor'' (or ``minor'') stationary sources is addressed by section 
110(a)(2)(C) of the Act. We generally refer to the latter program as 
the ``minor NSR'' program. A minor stationary source is a source whose 
``potential to emit'' is lower than the major source applicability 
threshold for a particular pollutant defined in the applicable major 
NSR program.
    Therefore, we evaluated the submitted revisions and new rules using 
the federal regulations under CAA section 110(a)(2)(C), which require 
each State to include a minor NSR program in its SIP. EPA regulations 
require that a minor NSR program include:
     A plan that includes ``legally enforceable procedures that 
enable'' the permitting agency to determine whether a minor source will 
cause or contribute to violations of applicable portions of the control 
strategy, 40 CFR 51.160(a)(1).
     A plan that sets forth legally enforceable procedures that 
enable the State to determine whether the minor source will result in 
``interference with a national ambient air quality standard,'' 40 CFR 
51.160(a)(2) and, to prevent the source from doing so, 40 CFR 
51.160(b).
     A plan that includes a discussion of ``the basis for 
determining which facilities will be subject to review,'' 40 CFR 
51.160(e).
     A plan that includes a discussion of ``the air quality 
data and the dispersion or other air quality modeling used'' to

[[Page 761]]

meet the requirements of EPA regulations 40 CFR 51.160(f).
    In addition, we reviewed the State's regulations for compliance 
with the Act. Generally, SIPs must be enforceable (see section 110(a) 
of the Act) and must not relax existing SIP requirements (see section 
110(l) and 193 of the Act).
    EPA has issued several guidance memoranda that explain the Agency's 
requirements for practicable enforceability for purposes of effectively 
limiting a source's potential to emit. See, e.g., June 13, 1989 
Memorandum entitled, ``Guidance on Limiting Potential to Emit in New 
Source Permitting, from Terrell F. Hunt, Associate Enforcement Counsel, 
OECA, and John Seitz, Director, OAQPS, to EPA Regional Offices. Further 
guidance was provided on January 25, 1995 in a memorandum entitled, 
``Options for Limiting the Potential to Emit (PTE) of a Stationary 
Source Under Section 112 and Title V of the Clean Air Act (Act),'' from 
John Seitz, Director, OAQPS and Robert I. Van Heuvelen, Director, ORE 
to Regional Air Directors. Although the latter memo applies to 
stationary sources subject to CAA Section 112 and Title V, we are 
citing this notice for the general practicable enforceability 
principles.
    For example, as presented in the guidance, practicable 
enforceability for a source-specific permit means that the permit's 
provisions must, at a minimum:
    (1) Include technically accurate emission limitations;
    (2) Specify the time period for the limitation (hourly, daily, 
monthly, annually);
    (3) Specify the method for determining compliance including 
appropriate monitoring, recordkeeping and reporting (MRR);
    (4) Identify the category of sources that are covered by the rule;
    (5) Where coverage is optional, provide for notice to the 
permitting authority of the source's election to be covered by the 
rule; and
    (6) Recognize the enforcement consequences relevant to the rule.
    EPA reviewed the proposed new rules against the six criteria 
mentioned above. This review, which is also discussed in a memo from 
Richard R. Long, Director, Region 8 Air and Radiation Program, to the 
Board on January 30, 2006 (Long memo), includes:
    a. Specific applicability. The Rules must clearly identify the 
category of sources that qualify for the rule's coverage.
    b. Reporting or notice to permitting authority. The rule should 
provide that a source notify the permitting authority of its coverage 
by the rule.
    c. Specific technically accurate emission limits. The rule must 
clearly specify the emission limits that apply, and include the 
specific associated compliance monitoring. A rule that allows sources 
to submit the specific parameters and associated emission limits to be 
monitored may not be enforceable because the rule itself does not set 
specific emission limits.
    d. Specific compliance monitoring. The rule must specify the 
methods to determine compliance. Specifically, the rule must state the 
monitoring requirements, recordkeeping requirements, reporting 
requirements and test methods as appropriate.
    e. Practically enforceable averaging times. The averaging time 
period must readily allow for determination of compliance.
    f. Clearly recognized enforcement. Violations of the emission 
thresholds imposed by the rule constitute violations of permitting and 
SIP requirements.
    Section 110(a)(2)(A) of the Act and 40 CFR 51.160(a)(1) requires 
that SIP revision submittals be enforceable. The September 23, 1987, 
Memorandum from J. Craig Potter, Assistant Administrator for Air and 
Radiation, and Thomas L. Adams Jr., Assistant Administrator for 
Enforcement and Compliance Monitoring, entitled ``Review of State 
Implementation Plans and Revisions for Enforceability and Legal 
Sufficiency'' provides EPA's guidance for interpreting this provision 
in the Act. EPA proposes to find that the proposed new and modified 
rules do not meet the requirements of section 110(a)(2), which require 
that SIP revision submittals be enforceable. First, there are no 
specific up-front methodologies in the submitted Program for the State 
to use to be able to determine whether a source covered by these rules 
is in compliance with 40 CFR 51.160. The Program fails to meet the 
enforceability requirements to assure compliance. This is because there 
are no specific limits to limit production, hours of operation, fuel 
consumption, etc. to ensure the facility's potential to emit remains 
below major source thresholds for any particular pollutant. Second, 
while ARM 17.8.1705, codified as New Rule V, requires that the owner or 
operator of a registered facility shall monitor and record annual 
production information for all emission points and maintain onsite 
records showing daily hours of operation and daily production rates, 
17.8.1705 does not have any specific limits that limit the potential to 
emit. Thus, EPA finds that the testing, recordkeeping, reporting, and 
monitoring provisions necessary to establish how compliance will be 
determined and to ensure that the NAAQS are protected are insufficient.
    The rule must clearly specify the emission limits that apply, and 
include the necessary more specialized monitoring, recordkeeping, and 
reporting (MRR) requirements required for an oil and gas registration 
program to ensure accountability and provide a means to determine 
compliance. The submitted Program is generic concerning MRR. For 
example, ARM 17.8.1705 requires that the owner or operator of a 
registered facility shall monitor and record annual production 
information for all emission points, as required by the MDEQ in the 
annual emission inventory request. ARM 17.8.1605 (Recordkeeping 
requirements) only requires that the owner or operator of an oil and 
gas well facility shall record, and maintain onsite or at a central 
field office, a record of each monthly inspection. There are no 
specific limits to limit potential to emit and there are no specific up 
front methodologies specified in this rule to determine compliance.
    The submitted Program is generic concerning the types of monitoring 
that are required, rather than identifying the application of specific 
monitoring approaches, providing the technical specifications for each 
of the specific allowable monitoring systems, and requiring replicable 
procedures for the approval of any alternative monitoring system 
(January 25, 1995 memo from Kathie A. Stein, Director Air Enforcement 
Division entitled ``Guidance on Practicable Enforceability''). The 
Program also lacks the replicable procedures that are necessary to 
ensure that (1) adequate monitoring is required that would accurately 
determine emissions under the Program; (2) the Program is based upon 
sound science and meets generally acceptable scientific procedures for 
data quality and manipulation; and (3) the information generated by 
such system meets minimum legal requirements for admissibility in a 
judicial proceeding to enforce the Program (September 23, 1987, 
Memorandum from J. Craig Potter, Assistant Administrator for Air and 
Radiation, and Thomas L. Adams Jr., Assistant Administrator for 
Enforcement and Compliance Monitoring, entitled ``Review of State 
Implementation Plans and Revisions for Enforceability and Legal 
Sufficiency''). For example: ARM 17.8.1604 and 17.8.1712 require the 
source to inspect monthly all VOC piping components for leaks and 
repair such leaks within a specific period of

[[Page 762]]

time. The rule should specify methods more sophisticated than sight, 
sound and smell to detect leaks; for example, field gas chromatography; 
photo ionization air monitoring; or portable gas detection 
instrumentation. Additionally, ARM 17.8.1713(4) requires the owner or 
operator of a registration oil or gas well facility with a ``detectible 
level of hydrogen sulfide from the well'' to submit an ``air quality 
analysis demonstrating compliance'' with the ambient standards for 
SO2 and hydrogen sulfide. The regulation is ambiguous and 
provides no information regarding what should go in such a 
demonstration. The Program should also ensure consistency and accuracy 
in the calculations that oil and gas well facilities conduct, for 
example by including the calculations in the rule or referencing 
specific AP-42 air pollutant emission factors or American Society for 
Testing Materials (ASTM) methods to determine emissions from the 
various emission units at the oil and gas well facility.
    Because of the reasons stated above, EPA finds the MRR requirements 
in the Program fail to ensure attainment and maintenance of the NAAQS 
are protected. The Program lacks language requiring the owner or 
operator to maintain the proper MRR, which would allow the State to be 
able to determine if there was an adverse impact on air quality.
    Even if the rules were federally enforceable as required by CAA 
section 110(a)(2)(C), the rule must also be enforceable as a practical 
matter. EPA's review of these proposed revisions also focused on 
whether these revisions are enforceable as a practical matter. If 
limitations imposed by SIP rules are incomplete, vague, or nonexistent, 
enforcement by the States, citizens and EPA would not be effective. 
Emission limitations must be of sufficient quality and quantity to 
ensure accountability. EPA has issued several guidance documents 
explaining the requirements of practicable enforceability (e.g., June 
13, 1989 Memorandum entitled, ``Guidance on Limiting Potential to Emit 
in New Source Permitting, from Terrell F. Hunt, Associate Enforcement 
Counsel, OECA, and John Seitz, Director, OAQPS, to EPA Regional 
Offices. Further guidance was provided on January 25, 1995 in a 
memorandum entitled, ``Options for Limiting the Potential to Emit (PTE) 
of a Stationary Source Under Section 112 and Title V of the Clean Air 
Act (Act),'' from John Seitz, Director, OAQPS and Robert I. Van 
Heuvelen, Director, ORE to Regional Air Directors).
    The standard of review in this instance is a determination whether 
the submitted Program has sufficient practically enforceable procedures 
that enable the permitting agency to determine whether a minor source 
will cause or contribute to violations of applicable portions of the 
NAAQS and the control strategy as required in 40 CFR 51.160. In the 
Long memo, EPA expressed concerns that, among other things, the 
submitted Program lacks the appropriate practically enforceable 
averaging times in order to determine compliance. EPA policy expresses 
a preference for short term limits, generally daily, but not to exceed 
one month (January 25, 1995 memo from Kathie A. Stein, Director Air 
Enforcement Division entitled ``Guidance on Practicable 
Enforceability''). ARM17.8.1705 only requires the owner or operator of 
a registered facility to monitor and record annual production 
information, as required by MDEQ in the annual emission inventory 
request. The State only requires that production information be 
gathered on a calendar year basis and submitted to MDEQ by the date 
required in the emission inventory request. This requirement does not 
enable the permitting agency to determine whether a minor source will 
cause or contribute to violations of applicable portions of the NAAQS 
short term limits or PSD increments. If MDEQ envisions that some oil 
and gas well facilities that emit less than 100 tons per year of 
criteria air pollutants may be registration eligible, the rule must 
also include provisions for short term limits to ensure that the short 
term NAAQS limits and increments are met.
    One of the requirements for practical enforceability is for a minor 
source to provide notice to the State before construction begins 
(Stein, Guidance on Enforceability Requirements for Limits Potential to 
Emit through SIP and Sec.  112 Rules and General Permits). The proposed 
Program allows sources to operate and emit criteria pollutants up to 60 
days before submitting a registration or permit application; therefore, 
there is no requirement that the State be notified before construction 
begins. Therefore, neither the public, the State, nor EPA can determine 
if compliance is met before construction; thus, these limitations are 
not practically enforceable.
    As discussed above, any Minor NSR SIP revision submittal must meet 
section 110(l) of the CAA. Section 110(l) of the Act indicates that EPA 
cannot approve a revision of a plan if the revision would interfere 
with any applicable requirement concerning attainment and reasonable 
further progress (as defined in Section 171), or any other applicable 
requirement of the Act. The Long memo stated that MDEQ should provide 
an appropriate analysis showing that the proposed new rule will not 
impact the NAAQS or PSD increments. EPA expressed concerns to MDEQ 
related to the cumulative effect of numerous registration sources. For 
example, the Program could allow hundreds of unrelated emission sources 
to be subject to individual emission limitations, yet the submitted 
Program lacks the appropriate practically enforceable averaging times 
in order to determine compliance with short term NAAQS limits and PSD 
increments. EPA recommended that MDEQ should perform a screening 
cumulative impact analysis showing, under the worst case scenarios, 
what effect oil and gas well facilities would have on the ozone, 
NO2, SO2 and PM NAAQS and increments. Montana has 
not performed such an analysis. Therefore, EPA lacks sufficient 
available information to determine that the proposed SIP relaxation 
would not interfere with any applicable requirement concerning 
attainment and maintenance of the NAAQS, PSD increment, or any other 
requirement of the Act.
    Montana's submittal did not include modeling assumptions that will 
ensure compliance with NAAQS. Examples of assumptions which should be 
discussed include the estimated number of facilities expected to be 
covered under the Program, as well as, their assumed locations (i.e., 
identify potentially high density locations). Montana did not 
demonstrate what the cumulative impacts from numerous oil and gas 
facilities operating under the Program in certain regions and statewide 
would have on the NAAQS.
    EPA notes that in addition to the registration program allowing for 
new sources to escape the SIP permit requirements, ARM 17.8.1703 allows 
an owner or operator of a registration eligible facility for which a 
valid Montana Air Quality Permit (MAQP) has been issued to register 
with the department and request a revocation of the previously issued 
MAQP. This is a relaxation under section 110(l), because it provides an 
exemption from SIP requirements not previously available to sources. 
This SIP relaxation creates a risk of interference with attainment and 
maintenance of the NAAQS and control strategy. EPA lacks sufficient 
information to determine that this SIP relaxation would not interfere 
with attainment and maintenance of the NAAQS, PSD increment, or any 
other requirement of the Act.

[[Page 763]]

IV. Summary of Proposed Actions

    EPA is proposing to disapprove revisions and new rules as 
identified in this action and as submitted by the State of Montana on 
October 16, 2006 and November 1, 2006. EPA is proposing disapproval 
based upon a number of factors, including: (1) The lack of any 
objective, replicable methodology in order to determine compliance, (2) 
the lack of sufficient MRR requirements, and (3) the lack of 
enforceability. Additionally, EPA lacks sufficient information to 
determine that the requested revision to add the new oil and gas 
registration program to the Montana Minor NSR SIP will not interfere 
with any applicable requirement concerning attainment and reasonable 
further progress (RFP) as required by CAA Section 110(l), or any other 
requirement of the Act. Finally, EPA also lacks sufficient information 
to make a finding that the submitted Program will ensure protection of 
the NAAQS, PSD increments, and noninterference with the Montana SIP 
control strategies.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this proposed action merely approves state law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

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

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

    Dated: December 22, 2010.
James B. Martin,
Regional Administrator, Region 8.
[FR Doc. 2011-18 Filed 1-5-11; 8:45 am]
BILLING CODE 6560-50-P
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