32760 Federal Register / Vol. 66, No. 117 / Monday, June 18, 2001 / Rules and Regulations

on the distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

August 10, 1999), because it merely

approves a state request for an

attainment date extension, and does not

alter the relationship or the distribution

of power and responsibilities

established in the Clean Air Act. This

rule also is not subject to Executive

Order 13045 (62 FR 19885, April 23,

1997), because it is not economically

significant.

Because EPA’s role concerning

today’s action is only to approve a state

request for an attainment date

extension, provided that such request

meets the criteria of the Clean Air Act,

and to make determinations required of

EPA by the CAA, the requirements of

section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (15 U.S.C. 272 note),

relating to the use of voluntary

consensus standards, do not apply. As

required by section 3 of Executive Order

12988 (61 FR 4729, February 7, 1996),

in issuing this rule, EPA has taken the

necessary steps to eliminate drafting

errors and ambiguity, minimize

potential litigation, and provide a clear

legal standard for affected conduct. EPA

has complied with Executive Order

12630 (53 FR 8859, March 15, 1988) by

examining the takings implications of

the rule in accordance with the

‘‘Attorney General’s Supplemental

Guidelines for the Evaluation of Risk

and Avoidance of Unanticipated

Takings’ issued under the executive

order. This rule does not impose an

information collection burden under the

provisions of the Paperwork Reduction

Act of 1995 (44 U.S.C. 3501 et seq.).

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. EPA will submit a

report containing this rule 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). This rule

will be effective July 18, 2001.

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 August 17, 2001.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Intergovernmental

relations, Particulate matter, Reporting

and recordkeeping requirements.

Dated: June 6, 2001.

Jack W. McGraw,

Acting Regional Administrator, Region VIII.

40 CFR part 52, of chapter I, title 40

is amended as follows:

PART 52—[AMENDED]

1. The authority citation for Part 52

continues to read as follows:

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

Subpart TT—Utah

2. Section 52.2322 is added to read as

follows:

§ 52.2322 Extensions.

* * * * *

(a) The Administrator, by authority

delegated under section 188(d) of the

Clean Air Act, as amended in 1990,

extends for one year (until December 31,

1995) the attainment date for the Salt

Lake County PM10 nonattainment area.

The Administrator, by authority

delegated under section 188(d) of the

Clean Air Act, as amended in 1990,

extends for two years (until December

31, 1996) the attainment date for the

Utah County PM10 nonattainment area.

(b) [Reserved]

[FR Doc. 01–15031 Filed 6–15–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[MT–001–0024, MT–001–0025, MT–001–

0026; FRL–6986–1]

Clean Air Act Approval and

Promulgation of Air Quality

Implementation Plan; Montana; East

Helena Lead State Implementation Plan

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA is partially

approving and partially disapproving

the East Helena Lead (Pb) State

Implementation Plan (SIP) revisions

submitted by the Governor of Montana

on August 16, 1995, July 2, 1996, and

October 20, 1998. The EPA is partially

approving and partially disapproving

these SIP revisions because, while they

strengthen the SIP, they also do not

fully meet the Act’s provisions

regarding plan requirements for

nonattainment areas. The intended

effect of this action is to make federally

enforceable those provisions that EPA is

partially approving, and not make

federally enforceable those provisions

that EPA is partially disapproving. The

EPA is taking this action under sections

110, 179, and 301 of the Clean Air Act

(Act).

EFFECTIVE DATE: This final rule is

effective July 18, 2001.

ADDRESSES: Copies of the documents

relevant to this action are available for

public inspection during normal

business hours at the Air and Radiation

Program, Environmental Protection

Agency, Region VIII, 999 18th Street,

Suite 300, Denver, Colorado, 80202 and

copies of the Incorporation by Reference

material at the Air and Radiation Docket

and Information Center, Environmental

Protection Agency, 401 M Street, SW.,

Washington, DC 20460. Copies of the

State documents relevant to this action

are available for public inspection at the

Montana Department of Environmental

Quality, Air and Waste Management

Bureau, 1520 E. 6th Avenue, Helena,

Montana 59620.

FOR FURTHER INFORMATION CONTACT:

Kerri Fiedler, EPA, Region VIII, (303)

312–6493 or Laurie Ostrand, EPA,

Region VIII, (303) 312–6437.

SUPPLEMENTARY INFORMATION:

Table of Contents

Definitions

I. Background

II. EPA’s Action on the State of Montana’s

Submittal

A. Why Is EPA Partially Approving Parts

of the State of Montana’s Plan?

B. Why Is EPA Partially Disapproving Parts

of the State of Montana’s Plan?

C. What Happens When EPA Partially

Approves and Partially Disapproves the

State of Montana’s Plan?

D. Miscellaneous

E. Why Is EPA Completing a Separate

Direct Final Rulemaking on the East

Helena Lead SIP?

III. What Comments Were Received on EPA’s

Proposed Action and How Is EPA

Responding to Those Comments?

IV. Summary of EPA’s Final Action.

IV. Administrative Requirements.

Federal Register / Vol. 66, No. 117 / Monday, June 18, 2001 / Rules and Regulations 32761

Definitions

For the purpose of this document, we

are giving meaning to certain words 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) The initials Pb mean or refer to

the element lead.

(iv) The initials MDEQ mean or refer

to the Montana Department of

Environmental Quality.

(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.

I. Background

On November 6, 1991 (56 FR 56694),

we designated the East Helena area as

nonattainment for Pb. This designation

was effective on January 6, 1992 and

required the State to submit a part D SIP

by July 6, 1993. On August 16, 1995,

July 2, 1996 and October 20, 1998 the

Governor of Montana submitted SIP

revisions to meet the part D SIP

requirements. We proposed to partially

approve and partially disapprove the

State’s submittals on October 10, 2000

(65 FR 60144). Refer to the October 10,

2000 proposed rulemaking for a

complete discussion of our review of the

State submittals.

On November 27, 2000, the Governor

of Montana submitted additional

revisions to the East Helena Pb SIP. We

are addressing the November 27, 2000

submittal in a separate action published

today. See discussion below in section

II.E.

II. EPA’s Action on the State of

Montana’s Submittal

A. Why Is EPA Partially Approving Parts

of the State of Montana’s Plan?

In our October 10, 2000 proposed

rulemaking, we proposed to partially

approve the East Helena Pb SIP

revisions. Apart from comments

suggesting we fully approve the plan,

we did not receive any adverse

comments on our proposal to partially

approve the SIP. We still believe it is

appropriate to partially approve the SIP.

See our proposed rulemaking action (65

FR 60144) for a more detailed

discussion of our evaluation of the

State’s submittal.

Apart from those provisions we are

disapproving, we are approving all other

provisions of the SIP. We are approving

the other parts of the SIP because we

believe they meet our SIP approval

criteria and provide enforceable

emission limitations on Pb sources in

East Helena. We caution that if sources

are subject to more stringent

requirements under other provisions of

the Act (e.g., section 111, part C, or SIPapproved permit programs under part

A), our partial approval of the SIP

(including emission limitations and

other requirements), would not excuse

sources from meeting these other, more

stringent requirements. Also, our partial

approval of the SIP is not meant to

imply any sort of applicability

determination under other provisions of

the Act (e.g., section 111, part C, or SIPapproved permit programs under part

A).

B. Why Is EPA Partially Disapproving

Parts of the State of Montana’s Plan?

In our October 10, 2000 proposed

rulemaking, we proposed to partially

disapprove portions of the East Helena

Pb SIP. We have considered the

comments received and still believe we

should partially disapprove the SIP as

proposed. We refer the reader to the

comments received and our responses

in section III, below.

We are partially disapproving the SIP

revisions, because they do not fully

meet the Act’s provisions regarding plan

submissions and requirements for

nonattainment areas. The current

version of East Helena’s Pb SIP does not

entirely conform to the requirement of

section 110(a)(2) of the Act that SIP

limits must be enforceable nor to the

requirement of section 110(i) that the

SIP can be modified only through the

SIP revision process. In a March 24,

1998 letter to MDEQ, we raised

concerns about places in the stipulation

where MDEQ has the discretion to

modify existing provisions or add future

documents or compliance monitoring

methods to the Pb SIP. The stipulations

did not make clear whether any of these

changes would be submitted as SIP

revisions or by any other process for us

to review and approve. We indicated

that, in places where the stipulation

allowed MDEQ to exercise discretion,

the words ‘‘and EPA’’ must be added.

The State did not revise the SIP to

address our concerns and in a

November 16, 1999 letter to us the

MDEQ indicated that the department

discretion issues would be addressed at

a later date. We are partially

disapproving the SIP because of the

provisions that allow department

discretion and two other provisions that

contain enforceability issues related to a

test method.

The conditions allowing department

discretion are discussed in Table 1

below:

TABLE 1.—DEPARTMENT DISCRETION

Provision No. Description

Asarco Stipulation Provision 15 and American Chemet Stipulation Provision 20.Indicates that stipulations may be modified when sufficient grounds exist. For example, if the State

demonstrates through modeling or other means that an alternative plan could still meet the

NAAQS, the plan could be modified. Although our March 24, 1998 letter may have indicated that

these provisions would be acceptable if MDEQ could confirm our interpretations, we now believe

that these provisions need to be revised in the same way that the State revised similar provisions

in stipulations in the Billings SIP.

Asarco Stipulation Provision 16 ................. Indicates that revisions to attachments of the stipulation can be made, once approved by MDEQ.

The stipulation does not make clear whether MDEQ approval means that the revised attachments

will be deemed incorporated in to the SIP. We believe that, since the attachments are a part of

the SIP and pertain mostly to enforceability provisions, any revision to an attachment should be

evaluated for significance 1 and if determined to be significant, the revision must be approved as a

SIP revision or approved through title Title V process.2 We suggested to MDEQ that where the

‘‘Department’’ appears in the stipulations ‘‘and EPA’’ should be added.

Asarco Exhibit A, Section 6 ....................... References Attachment 6, ‘‘Quality Assurance/Quality Control (QA/QC) and Standard Operating

Procedures (SOP) for Continuous Opacity Monitoring Systems.’’ Any revision to an attachment

and provision should be evaluated for significance 3, and if determined to be significant, the revision must be approved as a SIP revision or approved through the Title V process. EPA has suggested to MDEQ that where ‘‘the Department’’ appears in the stipulations ‘‘and EPA’’ should be

added.

32762 Federal Register / Vol. 66, No. 117 / Monday, June 18, 2001 / Rules and Regulations

8 In our October 10, 2000 proposal notice we

identifiefd concerns with only sections 2(A)(22) and

2(A)(28) and not section 5(G). However, since the

proposal notice we have found the same concern in

5(G) as in the other sections.

TABLE 1.—DEPARTMENT DISCRETION—Continued

Provision No. Description

Asarco Exhibit A, Section 7(A)(2) .............. Indicates that certain test methods are to be used, or other methods as approved by MDEQ. Any

revision to a testing method or provision should be evaluated for significance 4, and it determined

to be significant, the revision must be approved as a SIP revision or approved through the Title V

process. EPA has suggested to MDEQ that where ‘‘the Department’’ appears in the stipulations

‘‘and EPA’’ should be added.

Asarco Exhibit A, Section 11(c) ................. Indicates that if the Baghouse Maintenance Plan, (Attachment 7), is revised it needs to be reviewed

and approved by MDEQ. Any revision to an attachment should be evaluated for significance 5,

and if determined to be significant, the revision must be approved as a SIP revision or approved

through the Title V process. EPA has suggested to MDEQ that where ‘‘the Department’’ appears

in the stipulations ‘‘and EPA’’ should be added.

Asarco Exhibit A, Section 12(A)(7) ............ Indicates that the Baghouse Maintenance Plan, (Attachment 7), will need further revisions. Once revised, it will be reviewed and approved by MDEQ. Any revision to an attachment should be evaluated for significance 6, and if determined to be significant, the revision must be approved as a SIP

revision or approved through the Title V process. EPA has suggested to MDEQ that where ‘‘the

Department’’ appears in the stipulations ‘‘and EPA’’ should be added.

Asarco Exhibit A, Section 12(B) ................ Indicates that if attachments are revised they need to be reviewed and approved by MDEQ. Any revision to an attachment should be evaluated for significance 7, and if determined to be significant,

the revision must be approved as a SIP revision or approved through the Title V process. EPA

has suggested to MDEQ that where ‘‘the Department’’ appears in the stipulations ‘‘and EPA’’

should be added.

1 ‘‘Evaluated for significance’’ means that the State must submit to us all modifications to the SIP text (including minor and clerical corrections

or modifications ) and all MDEQ approvals of alternative requirements and methodologies. If the modification to the text or alternative requirement or methodology is proposed as a ‘‘minor modification’’ (or clerical correction) we will inform the State, within 45 days from the date of submittal, of our determination whether the modification or alternative is major or minor, and if it is minor, of our approval of the modification or alternative. (We caution that our failure to make such determination within 45 days does not mean that the modification or alternative is either minor

or approved.) If we do not approve the modification of text, alternative requirement, or alternative methodology as minor, the State must adopt

the modification as a SIP revision in accordance with section 110(a)(2) of the Act and submit it to us for approval. We will then act on the SIP revision in accordance with the provision of Title I of the Act, pursuant to notice and comment rulemaking. 2As indicated in our March 24, 1998 letter, to use the Title V approach, the stipulation or SIP document must contain enabling language that

would allow the SIP to be revised through the Title V permit process. Our March 5, 1996 memorandum, ‘‘White Paper Number 2 for Improved

Implementation of the Part 70 Operating Permits Program,’’ (White Paper) suggests enabling language in Attachment B.II. The White Paper (section II.A and Attachment A) discusses the streamlining process that must be followed in order to revise SIPs through the Title V permit. Note,

however, that until the State is actually issuing Title V permits for these sources, a source-specific SIP revision would be necessary. 3See footnote 1 above.

4See footnote 1 above.

5See footnote 1 above.

6See footnote 1 above.

7See footnote 1 above.

In addition to the department

discretion issues, we believe that

sections 2(A)(22), 2(A)(28), and 5(G)8 of

Asarco Exhibit A, contain enforceability

problems. These sections, which discuss

how moisture content and silt content

will be determined, indicate that

sampling will be performed by specified

methods or ‘‘equivalent’’ methods. The

definition is not clear as to who will

determine that the ‘‘equivalent’’

methods are acceptable. Any revision to

a testing method or provision should be

evaluated for significance and if

determined to be significant, the

revision must be approved as a SIP

revision or approved through the Title

V process. (See footnote 1 above.)

Because these provisions could allow

changes in requirements without EPA

and public review or EPA approval, and

could allow use of test methods not

accepted by us, the East Helena Pb SIP

revisions present Federal enforceability

issues and thus fail to comply with the

general enforceability requirements of

section 172(c)(6) of the Act. Therefore,

we are partially approving and partially

disapproving the Pb SIP revision under

section 110(k)(3) of the Act. With this

partial approval and partial disapproval,

we are incorporating into the federally

approved SIP all provisions of the

stipulation, exhibits, and attachments

except those provisions that allow the

Department or sources to modify the SIP

without seeking SIP approval through

us. (Please see Section IV (‘‘Summary of

EPA’s Final Action’’) below.) We note

that portions of the SIP we are

approving indicate that under certain

circumstances Asarco may need to

revise attachments to Exhibit A. Since

we are not approving the Department’s

discretion to allow these revisions

unilaterally, we interpret these

provisions to mean that revisions of the

attachments for Exhibit A will be

adopted at the State level and submitted

as a SIP revision to us for approval.

Additionally, we do not believe that our

disapproval of the above-mentioned

provisions would render the SIP more

stringent than the State of Montana

intends, since our action does not

change the stringency of any of the

substantive requirements the State of

Montana has imposed and is currently

able to enforce through the SIP.

C. What Happens When EPA Partially

Approves and Partially Disapproves the

State of Montana’s Plan?

By partially approving the SIP, we are

making the approved portions of the

State’s submittal federally enforceable

(and enforceable by citizens under the

Act). Those portions of the SIP that we

disapprove are not made federally

enforceable. We believe that the

approved portions of the East Helena Pb

SIP, except for those provisions that we

are disapproving, satisfy the Act’s

criteria for Pb nonattainment SIPs. Even

though we are disapproving portions of

the SIP, the State is not required to

revise the SIP to fully meet the Act’s Pb

nonattainment requirements. Therefore,

because the State is not required to

complete any further SIP revisions as a

result of the partial disapproval,

sanctions and Federal Implementation

Plan (FIP) clocks under sections 179(a)

Federal Register / Vol. 66, No. 117 / Monday, June 18, 2001 / Rules and Regulations 32763

9See Guidance Memorandum from Sally L.

Shaver, Director, Office of Air Quality Planning and

Standards, OAQPS, to Regional Air Division

Directors, entitled ‘‘Attainment Determination

Policy for Lead Nonattainment Areas,’’ dated June

22, 1995.

and 110(c), respectively, will not be

started by our partial disapproval of the

East Helena Pb SIP.

D. Miscellaneous

Under section 179(c)(1), we have the

responsibility for determining whether a

nonattainment area has attained the Pb

NAAQS. We must make an attainment

determination as expeditiously as

practicable, but no later than 6 months

after the attainment date for the area.

The attainment date for East Helena was

January 6, 1997. We make the

attainment determination for a

nonattainment area based solely on an

area’s air quality data.9 Based on the air

quality data currently in the AIRS

database and pursuant to section

179(c)(1) of the Act, we have

determined that the East Helena Pb

nonattainment area has attained the Pb

NAAQS through calendar year 1999.

While we may determine that an

area’s air quality data indicate that the

area is meeting the Pb NAAQS for a

specified period of time, this does not

eliminate the State’s responsibility

under the Act to continue to implement

the requirements of the approved Pb

SIP. Even if we determine that an area

has attained the standard, the area will

remain designated as nonattainment

until the State has requested, and we

approve the State’s request, for

redesignation to attainment. In order for

an area to be redesignated to attainment,

the State must comply with the

requirements provided in sections

107(d)(3)(E) and 172(a) of the Act.

Finally, in our notice of proposed

rulemaking we proposed certain

regulatory text. We noted an error in our

proposed regulatory text and in this

final action are correcting that error.

Specifically, in the proposed regulatory

text at § 52.1370(c)(51)(i)(A) we

indicated that we were incorporating by

reference the stipulation, exhibit A and

attachments (excluding certain

provisions) adopted by Board order on

August 28, 1998. We believe we should

not have included exhibit A and

attachments, because a closer look at the

August 28, 1998 Board order indicates

that it is incorporating changes made

only in ‘‘the attached stipulation.’’ The

‘‘attached stipulation’’ shows changes in

the 1996 stipulation and does not

include exhibit A or attachments. Also

at § 52.1370(c)(51)(i)(B) we indicated

that we were incorporating by reference

the stipulation, exhibit A and

attachments (excluding certain

provisions) adopted by Board order on

June 21, 1996. The excluded provisions

should have included both those

identified in § 52.1370(c)(51)(i)(B) and

those identified in

§ 52.1370(c)(51)(i)(A). We have

corrected this by moving exclusions

identified in § 52.1370(c)(51)(i)(A) in the

notice of proposed rulemaking to

§ 52.1370(c)(51)(i)(B) in this notice of

final rulemaking. We also have removed

§ 52.1370(c)(51)(ii)(D) and

§ 52.1370(c)(51)(ii)(E) from our notice of

proposed rulemaking in response to

comments. Please see section III, ‘‘What

Comments Were Received on EPA’s

Proposed Action and How Is EPA

Responding to Those Comments?’’ The

final regulatory text at the end of this

notice has been revised to incorporate

the changes mentioned above.

E. Why Is EPA Completing a Separate

Direct Final Rulemaking on the East

Helena Lead SIP?

Subsequent to our October 10, 2000

proposed rulemaking, the State of

Montana submitted another revision to

the East Helena Pb SIP. We believe the

revisions submitted on November 27,

2000 are minor, and we have completed

a direct final rulemaking to approve

them into the SIP (see the separate

direct final rulemaking on the East

Helena Pb SIP also published in today’s

edition of the Federal Register). Since

the State revised portions of the plan on

which we proposed action, we believe

we should act on the new provisions at

the same time we take final action on

our proposed rulemaking so that the end

result will be a federally approved plan

that is consistent with the current State

plan (except for those provisions of the

plan that we are partially disapproving).

III. What Comments Were Received on

EPA’s Proposed Action and How Is EPA

Responding to Those Comments?

We proposed to partially approve and

partially disapprove the SIP due to

concerns about various provisions in the

SIP that allow department discretion to

alter the SIP. We received two

comments opposing our proposed

action to partially approve and partially

disapprove the SIP due to department

discretion. We have considered the

comments received and believe it is still

appropriate to partially disapprove the

SIP as submitted. In addition, we

received two comments pertaining to

the regulatory text we had proposed at

the end of our notice and the

appropriateness of incorporating certain

documents under the ‘‘additional

material’’ section. We have considered

the comments we received and have

revised our proposed regulatory text

somewhat. The following is a summary

of the comments we received and our

response to the comments:

(1) Comment: We received two

comments concerning our position on

department discretion, claiming that

future changes to equipment and

processes will contravene the specific

language of the SIP but will have no

direct effect on the facility’s emissions

or the State’s attainment demonstration.

The commenters believe that the State

should be able to make these changes

without triggering the SIP review

process and that the foundation of the

Act is a partnership between EPA and

the State which assigns primary

responsibility to the State for ensuring

compliance with the National Ambient

Air Quality Standards (NAAQS). In

addition, one of the commenters

believes that the Act allows us to call for

a SIP revision (a ‘‘SIP Call’’ under

section 110(k)(5) of the Act) when the

State’s exercise of that discretion

weakens the SIP.

Response: Section 110(i) of the Act

(42 U.S.C. 7410(i)) prohibits States and

EPA, except in certain limited

circumstances, which do not apply to

the East Helena Pb SIP, from taking any

action to modify a requirement of a SIP

except by SIP revisions. We do not agree

that Montana or EPA should be free to

make changes to SIPs that may

contravene the specific language of the

SIP but have no direct effect on the

facility’s emissions or the State’s

attainment demonstration. Section

110(i) by its terms requires that changes

in SIP requirements must be made by

the SIP revision process. That process

gives the public the opportunity to

review and comment on the

reasonableness and adequacy of the

requirements that are to be imposed,

and gives us an opportunity to review

all changes. Also, we do not find a SIP

Call to be a satisfactory alternative. We

believe we should address the question

of appropriate SIP revisions in advance

rather than waiting to determine that a

State’s exercise of a department

discretion has weakened the SIP.

(2) Comment: We received a comment

in regard to the Montana Board of

Environmental Review approving a new

SIP revision in September 2000, which

had not yet been submitted to EPA for

review and approval. Because the

version of the SIP proposed in our

rulemaking (See 65 FR 60144) is

different than the current SIP enforced

by the State, we were asked to defer our

final approval until the most recent Pb

SIP revision could be included.

Response: Elsewhere in today’s

Federal Register, we are acting on the

32764 Federal Register / Vol. 66, No. 117 / Monday, June 18, 2001 / Rules and Regulations

subsequent SIP revision to approve the

submittal as a direct final rule.

(3) Comment: We received two

comments concerning our proposed

language in 40 CFR 52.1370(c)(51)(ii)

that would include two Montana Air

Quality Permits and two letters from

MDEQ to EPA Region 8. The two

commenters are concerned that, if they

are included as ‘‘additional material’’ in

the regulatory text of the Montana SIP,

any change to the conditions,

provisions, and limitations contained in

the two permits identified in 40 CFR

52.1370(c)(51)(ii), could only be

accomplished via the SIP revision

process.

Response: We agree with the

comments in regard to the proposed

language in 40 CFR 52.1370(c)(51)(ii)

concerning the two Montana Air Quality

Permits. In the final rule we are

removing the Montana Air Quality

Permits from the proposed language in

40 CFR 52.1370(c)(51)(ii). The two

letters from MDEQ to EPA Region 8,

however, should remain a part of the

additional material. These letters were

submitted to us by MDEQ to help us

interpret portions of the East Helena Pb

SIP and are key to our decision to

partially approve and partially

disapprove the East Helena Pb SIP.

(4) Comment: One commenter

questioned whether the existing

language in the Asarco stipulation is

sufficient to enable adopting equivalent

alternative requirements in the Pb SIP

through the Title V process. The

language in the SIP reads:

The requirements of this Stipulation may

also be modified by equivalent alternative

requirements implemented through the state

operating permit program under

authorization of Title V of the Federal Clean

Air Act. The procedures for implementing

equivalent alternative requirements must

meet federal requirements for modifications

of SIPs through the state operating permits.

Equivalent alternative requirements may be

adopted only after a demonstration that their

adoption will assure attainment and

maintenance of the NAAQS.

Response: We do not believe that the

existing enabling language is sufficient

to revise the Pb SIP through the Title V

process. We believe that, at a minimum,

the enabling language should include

procedures to make sure that any SIP

revisions through the Title V process

follow the significant permit revisions

process; satisfy the provisions and terms

of 40 CFR 70.6(a)(1)(iii); and establish

procedures for determining equivalency.

In addition, the enabling language

should indicate which provisions of the

Pb SIP can be revised through the Title

V permit process.

(5) Comment: We received one

comment requesting clarification

regarding the process for obtaining EPA

approval for changes in the department

discretion provisions. The commenter

read the Federal Register notice, in light

of the Technical Support Document, to

provide that: (1) All modifications to

SIP text and MDEQ approval of

alternative requirements and

methodologies must be submitted to

EPA; (2) EPA will determine, for each

submittal, whether the modification is a

minor modification and notify the

MDEQ of its determination within 45

days; (3) if the change is not approved

as minor, it must be approved as a SIP

revision; provided, however, that if the

SIP is amended to allow it, non-minor

changes may be approved, in the

alternative, through the Title V permit

process. The commenter asked that we

confirm whether or not this

understanding is accurate and that we

clarify what standard will be applied to

determine whether a proposed change is

a minor modification.

Response: The commenter’s

understanding is correct and is

consistent with footnotes 1 and 2 of this

document. We intend to use the March

30, 1993 memorandum from Gilbert H.

Wood, Chief, Emissions Measurement

Branch, Office of Air Quality Planning

and Standards, to the Emission

Measurement Branch, entitled

‘‘Handling Requests for Minor/Major

Modifications/Alternative Testing and

Monitoring Methods or Procedures

Approvals and Disapprovals’ (the Gil

Wood memo) for determining whether a

proposed change is a minor

modification, at least until the Gil Wood

memo is superceded by more current

guidance. We will include a copy of the

Gil Wood memo in the docket for this

SIP action.

IV. Summary of EPA’s Final Action

After reviewing the comments

received we still believe it is

appropriate to partially approve and

partially disapprove the East Helena Pb

SIP. Apart from those provisions we are

disapproving, we are approving all other

aspects of the East Helena Pb SIP. The

specific provisions we are disapproving

pertain to department discretion

provisions in the SIP or provisions that

allow sources to modify certain aspects

of the plan.

We are disapproving the following

phrases, words, or section in exhibit A

of the stipulation by the MDEQ and

Asarco adopted by order issued on June

21, 1996, by the Montana Board of

Environmental Review:

(1) The words, ‘‘or an equivalent

procedure’’ in the second and third

sentences in section 2(A)(22) of exhibit

A;

(2) The words, ‘‘or an equivalent

procedure’’ in the second and third

sentences in section 2(A)(28) of exhibit

A;

(3) The words, ‘‘or an equivalent

procedure’’ in the second sentence in

section 5(G) of exhibit A;

(4) The sentence, ‘‘Any revised

documents are subject to review and

approval by the Department as

described in section 12,’’ from section

6(E) of exhibit A;

(5) The words, ‘‘or a method approved

by the Department in accordance with

the Montana Source Testing Protocol

and Procedures Manual shall be used to

measure the volumetric flow rate at each

location identified,’’ in section 7(A)(2)

of exhibit A;

(6) The sentence, ‘‘Such a revised

document shall be subject to review and

approval by the Department as

described in section 12,’’ in section

11(C) of exhibit A;

(7) The sentences, ‘‘This revised

Attachment shall be subject to the

review and approval procedures

outlined in section 12(B). The Baghouse

Maintenance Plan shall be effective only

upon full approval of the plan, as

revised. This approval shall be obtained

from the Department by January 6, 1997.

This deadline shall be extended to the

extent that the Department has exceeded

the time allowed in section 12(B) for its

review and approval of the revised

document,’’ in section 12(A)(7) of

exhibit A;

(8) Section 12(B) of exhibit A.

We are disapproving paragraphs 15

and 16 of the stipulation by the MDEQ

and Asarco adopted by order issued on

June 21, 1996 by the Montana Board of

Environmental Review.

We are disapproving paragraph 20 of

the stipulation by the MDEQ and

American Chemet adopted by order

issued on August 4, 1995 by the

Montana Board of Environmental

Review.

We are also correcting and modifying

the proposed regulatory text as

indicated in sections II.D and II.E above.

Finally, pursuant to section 179(c)(1),

we are determining that the East Helena

nonattainment area has attained the Pb

NAAQS. As indicated above, this does

not eliminate the State’s responsibility

under the Act to continue to implement

the requirements under the approved Pb

SIP. Even if we determine that an area

has attained the standard, the area will

remain designated as nonattainment

until the State has requested, and we

approve the State’s request for,

redesignation to attainment.

Federal Register / Vol. 66, No. 117 / Monday, June 18, 2001 / Rules and Regulations 32765

We caution that if sources are subject

to more stringent requirements under

other provisions of the Act (e.g., section

111, part C, or SIP approved permit

programs under part A), our partial

approval of the SIP (including emission

limitations and other requirements),

would not excuse sources from meeting

those other, more stringent

requirements. Also, our partial approval

of the SIP is not meant to imply any sort

of applicability determination under

other provisions of the Act (e.g., section

111, part C, or SIP approved permit

programs under part A).

V. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget

(OMB) has exempted this regulatory

action from Executive Order 12866,

entitled ‘‘Regulatory Planning and

Review.’’

B. Executive Order 13045

Protection of Children from

Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997),

applies to any rule that: (1) Is

determined to be ‘‘economically

significant’’ as defined under Executive

Order 12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency.

This rule is not subject to Executive

Order 13045 because it does not involve

decisions intended to mitigate

environmental health or safety risks.

C. Executive Order 13132

Federalism (64 FR 43255, August 10,

1999) revokes and replaces Executive

Orders 12612 (Federalism) and 12875

(Enhancing the Intergovernmental

Partnership). Executive Order 13132

requires EPA to develop an accountable

process to ensure ‘‘meaningful and

timely input by State and local officials

in the development of regulatory

policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’ Under

Executive Order 13132, EPA may not

issue a regulation that has federalism

implications, that imposes substantial

direct compliance costs, and that is not

required by statute, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by State and local

governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

This rule will not have substantial

direct effects on the States, on the

relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132, because it

merely approves a state rule

implementing a federal standard, and

does not alter the relationship or the

distribution of power and

responsibilities established in the Clean

Air Act. Thus, the requirements of

section 6 of the Executive Order do not

apply to this rule.

D. Executive Order 13175

Executive Order 13175, entitled

‘‘Consultation and Coordination with

Indian Tribal Governments’’ (65 FR

67249, November 6, 2000), requires EPA

to develop an accountable process to

ensure ‘‘meaningful and timely input by

tribal officials in the development of

regulatory policies that have tribal

implications.’’ ‘‘Policies that have tribal

implications’’ is defined in the

Executive Order to include regulations

that have ‘‘substantial direct effects on

one or more Indian tribes, on the

relationship between the Federal

government and the Indian tribes, or on

the distribution of power and

responsibilities between the Federal

government and Indian tribes.’’

This final rule does not have tribal

implications. It will not have substantial

direct effects on tribal governments, on

the relationship between the Federal

government and Indian tribes, or on the

distribution of power and

responsibilities between the Federal

government and Indian tribes, as

specified in Executive Order 13175.

This action does not involve or impose

any requirements that affect Indian

Tribes. Thus, Executive Order 13175

does not apply to this rule.

E. Regulatory Flexibility

The Regulatory Flexibility Act (RFA)

generally requires an agency to conduct

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements unless the

agency certifies that the rule will not

have a significant economic impact on

a substantial number of small entities.

Small entities include small businesses,

small not-for-profit enterprises, and

small governmental jurisdictions.

This partial approval rule will not

have a significant impact on a

substantial number of small entities

because SIP approvals under section

110 and 301 and subchapter I, part D of

the Clean Air Act do not create any new

requirements but simply approve

requirements that the State is already

imposing. Therefore, because the

Federal SIP approval does not create

any new requirements, I certify that this

action will not have a significant

economic impact on a substantial

number of small entities. Moreover, due

to the nature of the Federal-State

relationship under the Clean Air Act,

preparation of flexibility analysis would

constitute Federal inquiry into the

economic reasonableness of state action.

The Clean Air Act forbids EPA to base

its actions concerning SIPs on such

grounds. Union Electric Co., v. U.S.

EPA, 427 U.S. 246, 255–66 (1976); 42

U.S.C. 7410(a)(2).

Moreover, EPA’s partial disapproval

rule will not have a significant impact

on a substantial number of small entities

because the partial disapproval action

affects only two sources of air pollution

in East Helena, Montana: Asarco and

American Chemet. Only a limited

number of sources are impacted by this

action. Therefore, I certify that this

action will not have a significant

economic impact on a substantial

number of small entities. Furthermore,

as explained in this action, the

submission does not meet the

requirements of the Clean Air Act and

EPA cannot approve the submission.

EPA has no option but to partially

disapprove the submittal. The partial

disapproval will not affect any existing

State requirements applicable to the

entities. Federal disapproval of a State

submittal does not affect its State

enforceability.

F. Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

32766 Federal Register / Vol. 66, No. 117 / Monday, June 18, 2001 / Rules and Regulations

may result in estimated costs to State,

local, or tribal governments in the

aggregate; or to the private sector, of

$100 million or more. Under section

205, EPA must select the most costeffective and least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements. Section 203

requires EPA to establish a plan for

informing and advising any small

governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the partial

approval and partial disapproval actions

promulgated do not include a Federal

mandate that may result in estimated

costs of $100 million or more to either

State, local, or tribal governments in the

aggregate, or to the private sector. This

Federal action partially approves and

partially disapproves pre-existing

requirements under State or local law,

and imposes no new requirements.

Accordingly, no additional costs to

State, local, or tribal governments, or to

the private sector, result from this

action.

G. Submission to Congress and the

Comptroller General

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. Section 804,

however, exempts from section 801 the

following types of rules: Rules of

particular applicability; rules relating to

agency management or personnel; and

rules of agency organization, procedure,

or practice that do not substantially

affect the rights or obligations of nonagency parties. 5 U.S.C. 804(3). EPA is

not required to submit a rule report

regarding this action under section 801

because this is a rule of particular

applicability.

H. National Technology Transfer and

Advancement Act

Section 12 of the National Technology

Transfer and Advancement Act

(NTTAA) of 1995 requires Federal

agencies to evaluate existing technical

standards when developing a new

regulation. To comply with NTTAA,

EPA must consider and use ‘‘voluntary

consensus standards’’ (VCS) if available

and applicable when developing

programs and policies unless doing so

would be inconsistent with applicable

law or otherwise impractical.

The EPA believes that VCS are

inapplicable to this action. Today’s

action does not require the public to

perform activities conducive to the use

of VCS.

I. Petitions for Judicial Review

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by August 17, 2001.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Lead, Reporting and recordkeeping

requirements.

Dated: May 16, 2001.

Jack W. McGraw,

Acting Regional Administrator, Region VIII.

Part 52, Chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for Part 52

continues to read as follows:

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

Subpart BB—Montana

2. Section 52.1370 is amended by

adding paragraph (c)(51) to read as

follows:

§ 52.1370 Identification of plan.

* * * * *

(c) * * *

(51) The Governor of Montana

submitted the East Helena Lead SIP

revisions with letters dated August 16,

1995, July 2, 1996, and October 20,

1998. The revisions address regulating

lead emissions from Asarco, American

Chemet, and re-entrained road dust

from the streets of East Helena.

(i) Incorporation by Reference.

(A) Board order issued on August 28,

1998, by the Montana Board of

Environmental Review adopting and

incorporating the August 13, 1998

stipulation of the Montana Department

of Environmental Quality and Asarco.

(B) Board order issued on June 26,

1996, by the Montana Board of

Environmental Review adopting and

incorporating the June 11, 1996

stipulation of the Montana Department

of Environmental Quality and Asarco

including exhibit A and attachments to

the stipulation, excluding paragraphs 15

and 16 of the stipulation, and excluding

the following:

(1) The words, ‘‘or an equivalent

procedure’’ in the second and third

sentences in section 2(A)(22) of exhibit

A;

(2) The words, ‘‘or an equivalent

procedure’’ in the second and third

sentences in section 2(A)(28) of exhibit

A;

(3) The words, ‘‘or an equivalent

procedure’’ in the second sentence in

section 5(G) of exhibit A;

(4) The sentence, ‘‘Any revised

documents are subject to review and

approval by the Department as

described in section 12,’’ from section

6(E) of exhibit A;

(5) The words, ‘‘or a method approved

by the Department in accordance with

the Montana Source Testing Protocol

and Procedures Manual,’’ shall be used

to measure the volumetric flow rate at

each location identified in section

7(A)(2) of exhibit A;

(6) The sentence, ‘‘Such a revised

document shall be subject to review and

approval by the Department as

described in section 12,’’ in section

11(C) of exhibit A;

(7) The sentences, ‘‘This revised

Attachment shall be subject to the

review and approval procedures

outlined in section 12(B). The Baghouse

Maintenance Plan shall be effective only

upon full approval of the plan, as

revised. This approval shall be obtained

from the Department by January 6, 1997.

This deadline shall be extended to the

extent that the Department has exceeded

the time allowed in section 12(B) for its

review and approval of the revised

document,’’ in section 12(A)(7) of

exhibit A;

(8) Section 12(B) of exhibit A.

(C) Board order issued on August 4,

1995, by the Montana Board of

Environmental Review adopting and

incorporating the June 30, 1995

stipulation of the Montana Department

of Environmental Quality and American

Chemet including exhibit A to the

stipulation, excluding paragraph 20 of

the stipulation.

(ii) Additional material.

(A) All portions of the August 16,

1995 East Helena Pb SIP submitted

other than the orders, stipulations and

exhibit A’s and attachments to the

stipulations.

(B) All portions of the July 2, 1996

East Helena Pb SIP submitted other than

Federal Register / Vol. 66, No. 117 / Monday, June 18, 2001 / Rules and Regulations 32767

the orders, stipulations and exhibit A’s

and attachments to the stipulations.

(C) All portions of the October 20,

1998 East Helena Pb SIP submitted

other than the orders, stipulations and

exhibit A’s and attachments to the

stipulations.

(D) November 16, 1999 letter from Art

Compton, Division Administrator,

Planning, Prevention and Assistance

Division, Montana Department of

Environmental Quality, to Richard R.

Long, Director, Air and Radiation

Program, EPA Region VIII.

(E) September 9, 1998 letter from

Richard A. Southwick, Point Source SIP

Coordinator, Montana Department of

Environmental Quality, to Richard R.

Long, Director, Air and Radiation

Program, EPA Region VIII.

[FR Doc. 01–15142 Filed 6–15–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[SIP NO. MT–001–0030a; FRL–6985–8]

Clean Air Act Approval and

Promulgation of Air Quality

Implementation Plan; Montana; East

Helena Lead State Implementation Plan

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: The EPA is taking direct final

action approving revisions to the East

Helena Lead (Pb) State Implementation

Plan (SIP) submitted by the Government

of Montana on November 27, 2000. The

revisions make minor modifications to

Asarco’s control strategy in the Pb SIP.

The intended effect of this action is to

make the revisions federally

enforceable. The EPA is taking this

action under sections 110 and 301 of the

Clean Air Act (Act).

DATES: This rule is effective on August

17, 2001. without further notice, unless

EPA receives adverse comment by July

18, 2001. If adverse comment is

received, EPA will publish a timely

withdrawal of the direct final rule in the

Federal Register informing the public

that the rule will not take effect.

ADDRESSES: Written comments may be

mailed to Richard R. Long, Director, Air

and Radiation Program, Mailcode 8P–

AR, Environmental Protection Agency

(EPA), Region VIII, 999 18th Street,

Suite 300, Denver, Colorado 80202.

Copies of the documents relevant to this

action are available for public

inspection during normal business

hours at the Air and Radiation Program,

Environmental Protection Agency,

Region VIII, 999 18th Street, Suite 300,

Denver, Colorado, 80202 and copies of

the Incorporation by Reference material

are available at the Air and Radiation

Docket and Information Center,

Environmental Protection Agency, 401

M Street, SW, Washington, DC 20460.

Copies of the State documents relevant

to this action are available for public

inspection at the Montana Department

of Environmental Quality, Air and

Waste Management Bureau, 1520 E. 6th

Avenue, Helena, Montana 59620.

FOR FURTHER INFORMATION CONTACT:

Kerri Fiedler, EPA, Region VIII, (303)

312–6493 or Laurie Ostrand, EPA,

Region VIII, (303) 312–6437.

SUPPLEMENTARY INFORMATION:

Definitions

For the purpose of this document, we

are giving meaning to certain words as

follows:

(i) The words or initials Act of 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) The initials Pb mean or refer to

the element lead.

(iv) The initials MDEQA mean or refer

to the Montana Department of

Environmental Quality.

(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.

Background

On November 6, 1991 (56 FR 56694),

we designated the East Helena area as

nonattainment for Pb. This designation

was effective on January 6, 1992 and

required the State to submit a Part D SIP

by July 6, 1993. On August 16, 1995,

July 2, 1996 and October 20, 1998 the

Governor of Montana submitted SIP

revisions to meet the Part D SIP

requirements. On October 10, 2000 (65

FR 60144) we proposed to partially

approve and partially disapprove these

State submittals. In a separate action

published today we are finalizing our

proposal to partially approve and

partially disapprove the State

submittals.

Subsequent to our October 10, 2000

proposed rulemaking, the State of

Montana submitted another revision to

the East Helena Pb SIP on November 27,

2000. Since the State’s November 27,

2000 submittal revises portions of the

plan on which we proposed action, we

believe we should act on the new

provisions at the same time we take

final action on our proposed

rulemaking, so that the end result will

be a federally approved plan that is

consistent with the current State plan

(except for those provisions of the plan

that we are partially disapproving in a

separate action published today).

Review of State’s November 27, 2000

Submittal

With the November 27, 2000

submittal, the State is revising the

control strategy for the Asarco lead

smelter in East Helena, Montana, by

removing reference to the Pb bullion

granulating process in the Dross

Building from the control plan and by

renaming several emission points and a

process vessel at the Asarco facility. The

revisions were effective at the State

level on September 15, 2000.

Pb Granulating Process Changes

When the State developed the Pb SIP

for East Helena (SIP submitted on

August 16, 1995), at the request of

Asarco, the SIP referenced a new

granulating technology in the Dross

Building. We proposed approval of this

SIP on October 10, 2000 (65 FR 60144).

Subsequently, Asarco found that the

granulating technology did not work

well and discontinued its use, reverting

back to conventional drossing

technology in 1997. The MDEQ has

concluded that discontinuing the

granulating technology and reverting

back to the conventional technology

will not change any of the inputs or

assumptions in the modeling

demonstration used to demonstrate

compliance with the National Ambient

Air Quality Standards (NAAQS) for Pb

in East Helena. Additionally, the MDEQ

has concluded that changing the

drossing process will not have an effect

on actual levels of fugitive Pb emissions

from the Dross Plant building or on

actual levels of Pb emissions from the

Dross Plant baghouse stack. The MDEQ

reached these conclusions based on the

following information:

• The subject drossing activities are

conducted entirely within the Dross

Plan building;

• The Dross Plant building is

completely enclosed and ventilated to

the Dross Plant baghouse;

• There will be no change in the

fugitive emission rate with the

conventional technology; and

• There will be no change in

emissions from the Dross Plant

baghouse stack.

We have reviewed the MDEQ’s

conclusions and supporting

documentation; we agree that there will

be no change in levels of emissions from