Rule2022-02737
Air Plan Approval; Montana; Administrative Rule Revisions: 17.8.334
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 10, 2022
Effective
March 14, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA or Agency) is taking final action to approve a revision to Montana's State Implementation Plan (SIP). On July 6, 2016, the Governor of Montana submitted to EPA a revision to the Montana SIP that removed one section of the Administrative Rules of Montana (ARM) pertaining to aluminum plants. In this document, EPA is finalizing approval of the removal of this section from the SIP. EPA determined the provision was inconsistent with Clean Air Act (CAA) requirements and EPA issued a SIP call for the State to revise the provision on June 12, 2015. Removal of this provision corrects the deficiencies identified in 2015 related to the treatment of excess emissions from aluminum plants and fully satisfies the SIP call issued to Montana.
Full Text
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<title>Federal Register, Volume 87 Issue 28 (Thursday, February 10, 2022)</title>
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[Federal Register Volume 87, Number 28 (Thursday, February 10, 2022)]
[Rules and Regulations]
[Pages 7725-7728]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02737]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2016-0477; FRL-9543-01-R8]
Air Plan Approval; Montana; Administrative Rule Revisions:
17.8.334
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA or Agency) is taking
final action to approve a revision to Montana's State Implementation
Plan (SIP). On July 6, 2016, the Governor of Montana submitted to EPA a
revision to the Montana SIP that removed one section of the
Administrative Rules of Montana (ARM) pertaining to aluminum plants. In
this document, EPA is finalizing approval of the removal of this
section from the SIP. EPA determined the provision was inconsistent
with Clean Air Act (CAA) requirements and EPA issued a SIP call for the
State to revise the provision on June 12, 2015. Removal of this
provision corrects the deficiencies identified in 2015 related to the
treatment of excess emissions from aluminum plants and fully satisfies
the SIP call issued to Montana.
DATES: This rule is effective on March 14, 2022.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2016-0477. All documents in the docket are listed on
the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in the index,
some information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available through
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, or please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, Air and Radiation
Division, EPA, Region 8, Mail Code 8ARD-IO, 1595 Wynkoop Street,
Denver, Colorado 80202-1129, telephone number: (303) 312-6728, email
address: <a href="/cdn-cgi/l/email-protection#2457474c494d50500a414848414a644154450a434b52"><span class="__cf_email__" data-cfemail="3340505b5e5a47471d565f5f565d735643521d545c45">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
On February 22, 2013, EPA issued a Federal Register notice of
proposed rulemaking outlining EPA's policy at the time with respect to
SIP provisions related to periods of startup, shutdown, or malfunction
(SSM). EPA analyzed specific SSM SIP provisions and explained how each
one either did or did not comply with the CAA with regard to excess
emission events.\1\ For each SIP provision that EPA determined to be
inconsistent with the CAA, EPA proposed to find that the existing SIP
provision was substantially inadequate to meet CAA requirements and
thus
[[Page 7726]]
proposed to issue a SIP call under CAA section 110(k)(5).
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\1\ State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls to
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013).
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On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized
``State Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings
of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying
to Excess Emissions During Periods of Startup, Shutdown and
Malfunction'' (80 FR 33839, June 12, 2015), hereafter referred to as
the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action clarified,
restated, and updated EPA's interpretation that SSM exemption and
affirmative defense SIP provisions are inconsistent with CAA
requirements. The 2015 SSM SIP Action found that certain SIP provisions
in 36 states were substantially inadequate to meet CAA requirements and
issued a SIP call to those states to submit SIP revisions to address
the inadequacies. EPA established an 18-month deadline by which the
affected states had to submit such SIP revisions. States were required
to submit corrective revisions to their SIPs in response to the SIP
calls by November 22, 2016. With regard to Montana, in the 2015 SSM
Action EPA issued a SIP call for ARM 17.8.334 because the Agency
determined that it was inconsistent with CAA requirements because it
contained an automatic exemption for emissions during startup and
shutdown events. The detailed rationale for issuing the SIP call to
Montana can be found in the 2015 SSM SIP Action and preceding proposed
action.
On July 6, 2016, the Governor of Montana submitted a SIP revision
to EPA for approval that would remove ARM 17.8.334 from the SIP.\2\ In
a document published on April 6, 2017, EPA proposed to approve
Montana's SIP revision.\3\ As discussed in the proposal, EPA's proposed
approval of the removal of ARM 17.8.334 from the Montana SIP was
consistent with the Agency's 2015 SSM SIP Policy. A more detailed
discussion of EPA's determination that Montana's SIP revision was
adequate to correct the deficiency identified in the 2015 SSM SIP
Action can be found in the proposed rule.
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\2\ The State rulemaking that repealed ARM 17.8.334 also
repealed two other sections of Montana's rules, including ARM
17.8.335, which allowed aluminum plants to exceed applicable
limitations during maintenance periods and ARM 17.8.772, which
pertained to mercury allowance allocations under cap and trade
budgets. Neither ARM 17.8.335 nor ARM 17.8.772 were approved into
the SIP and therefore were not included in Montana's July 6, 2016
SIP submittal to EPA to remove them from the SIP. Therefore, neither
ARM 17.8.335 nor ARM 17.8.772 are not at issue in this action.
\3\ 80 FR 33840.
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EPA issued a Memorandum in October 2020 (2020 Memorandum), which
stated that certain provisions governing SSM periods in SIPs could be
viewed as consistent with CAA requirements.\4\ Importantly, the 2020
Memorandum stated that it ``did not alter in any way the determinations
made in the 2015 SSM SIP Action that identified specific state SIP
provisions that were substantially inadequate to meet the requirements
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on
the SIP call issued to Montana in 2015. It also did not alter EPA's
prior proposal from 2017 to approve the Montana SIP revision at issue
in this action. The 2020 Memorandum did, however, indicate EPA's intent
at the time to review SIP calls that were issued in the 2015 SSM SIP
Action to determine whether EPA should maintain, modify, or withdraw
particular SIP calls through future agency actions.
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\4\ October 9, 2020, memorandum ``Inclusion of Provisions
Governing Periods of Startup, Shutdown, and Malfunctions in State
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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On September 30, 2021, EPA's Deputy Administrator withdrew the 2020
Memorandum and announced EPA's return to the policy articulated in the
2015 SSM SIP Action (2021 Memorandum).\5\ As articulated in the 2021
Memorandum, SIP provisions that contain exemptions or affirmative
defense provisions are not consistent with CAA requirements and,
therefore, generally are not approvable if contained in a SIP
submission. This policy approach is intended to ensure that all
communities and populations, including minority, low-income and
indigenous populations overburdened by air pollution, receive the full
health and environmental protections provided by the CAA.\6\ The 2021
Memorandum also retracted the prior statement from the 2020 Memorandum
of EPA's plans to review and potentially modify or withdraw particular
SIP calls. That statement no longer reflects EPA's intent. EPA intends
to implement the principles laid out in the 2015 SSM SIP Action as the
Agency takes action on SIP submissions, including Montana's SIP
submittal provided in response to the 2015 SIP call for which EPA has
already proposed approval. Consistent with that stated EPA intent and
the return to the policy outlined in the 2015 SSM SIP Action, EPA is
proceeding to take final action on its 2017 proposal to approve the
Montana submittal, as described in the remainder of this document.
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\5\ September 30, 2021, memorandum ``Withdrawal of the October
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions
in State Implementation Plans and Implementation of the Prior
Policy,'' from Janet McCabe, Deputy Administrator.
\6\ 80 FR 33985.
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II. EPA Response to Comments
The comment period for EPA's April 6, 2017 notice of proposed
rulemaking was open for 30 days. Notably, although over four years have
elapsed since the comment period closed, EPA is taking this final
action based on comments received during that comment period. No
additional comment period is needed because nothing in the intervening
time period--including the issuance and subsequent withdrawal of the
2020 Memorandum changed the basis for EPA's proposed action.
Accordingly, the April 6, 2017 document provided the public with a full
opportunity to comment on the issues raised by the proposed action. EPA
received one adverse comment on this proposed action from a group
called ``The SSM Coalition.'' EPA also received a comment from an
anonymous commenter expressing support for approval of the proposed
action.
Comment: The SSM Coalition did not discuss the details of EPA's
proposed action on Montana's SIP, but more generally argued that it
would be inappropriate for EPA to take final action on any SIP revision
driven by the interpretations set forth in the 2015 SSM SIP Action,
including the Montana proposal. The commenter referenced consolidated
challenges to the 2015 SSM SIP Action filed in the D.C. Circuit (Walter
Coke, Inc., et al. v. EPA, D.C. Cir. No. 15-1166), specifically citing
EPA's April 18, 2017 motion asking the court to indefinitely postpone
the oral argument so that new-at-the-time EPA political leadership
would have adequate time to fully review the 2015 SSM SIP Action. The
commenter asserted that EPA should defer action on the Montana SIP
because, at the time of EPA's proposed approval of the Montana
submission, EPA was reviewing the 2015 SSM SIP Action and the D.C.
Circuit had not ruled on the challenges to the rule. The SSM
Coalition's full comment can be found in the docket for this action.
EPA response: The Agency acknowledges that there exist pending
challenges to the 2015 SSM SIP Action in the court. However, there is
no requirement or expectation that EPA must postpone action while
awaiting a court decision. Montana has submitted a SIP revision to the
Agency that is fully approvable for the reasons outlined in
[[Page 7727]]
the proposal document. As a result, EPA has determined that it is
appropriate to take action to approve the State's SIP revision in
accordance with applicable CAA requirements. Under the CAA, the
Administrator is required to approve a SIP submission that complies
with the provisions of the CAA and applicable Federal regulations. 42
U.S.C. 7410(k); 40 CFR 52.02(a). The commenter has pointed to no
alleged deficiency or other aspect that would lead the Agency to
determine that the SIP revision should be disapproved or that full
approval of the SIP revision is not otherwise appropriate.
As outlined in EPA's 2015 SSM SIP Action, and recently reaffirmed
in the 2021 Memorandum, EPA is implementing policy consistent with that
outlined in the 2015 SSM SIP Action. That policy aligns with previous
court decisions, including the U.S. Court of Appeals for the District
of Columbia Circuit-issued ruling in 2008 that found that inclusion of
SSM exemptions in CAA section 112 standards is not allowed under the
CAA due to the generally applicable definition of emission
limitations.\7\ It was in light of the 2008 court case, as well as
concerns about the public health impacts of SSM, that led EPA in its
2015 action to clarify and update its SSM policy (2015 SSM Policy) to
indicate that automatic exemptions like the one at issue in today's
action will generally be viewed as inconsistent with CAA requirements.
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\7\ Sierra Club v. Johnson 551 F.3d 1019 (D.C. Cir.2008).
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As the commenter noted, an April 18, 2017 motion by EPA asked the
court to indefinitely postpone the oral argument so that new-at-the-
time EPA political leadership would have adequate time to fully review
the 2015 SSM SIP Action.
The comments regarding EPA' 2017 motion indicating that it is
reviewing the 2015 SSM action are now moot. The D.C. Circuit lifted the
abeyance on the litigation concerning the 2015 SSM SIP Action on
December 17, 2021. As outlined in EPA's request to lift the abeyance
\8\ and in the 2021 Memorandum, EPA is no longer reviewing the 2015 SSM
Action. Under the 2021 Memorandum, EPA reinstated its prior policy that
SIP provisions that contain exemptions or affirmative defense
provisions are not consistent with CAA requirements and, therefore,
generally would not be approvable if included in a SIP submission. The
2021 Memorandum notes, among other provisions, CAA section 110(l)'s
procedural requirements governing SIP amendments, section 302(k)'s
requirement that all emission limitations apply on a ``continuous''
basis, and the substantive stringency requirements applicable to
emission limitations pursuant to sections 165, 172, and 173.
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\8\ See Declaration of Joseph Goffman, Sierra Club v. EPA, No.
20-1115 (DC Cir. November 3, 2021), included in the docket for this
action.
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III. Final Action
For the reasons explained in the 2017 proposal, EPA is fully
approving Montana's July 6, 2016 SIP submission removing ARM 17.8.334
from the Montana SIP. The Agency's approval of this submission fully
corrects the inadequacies in Montana's SIP that were identified in the
EPA's 2015 SSM SIP Action.
IV. Incorporation by Reference
In this document, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation by reference ARM regarding
the removal of 17.8.334 from Montana's SIP, as discussed in section I
of this preamble. EPA has made, and will continue to make, these
materials generally available through <a href="http://www.regulations.gov">www.regulations.gov</a> and at the
EPA Region 8 Office (please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of this preamble for more
information). Therefore, these materials have been approved by EPA for
inclusion in the State implementation plan, have been incorporated by
reference by EPA into that plan, are fully federally enforceable under
sections 110 and 113 of the CAA as of the effective date of the final
rulemaking of EPA's approval, and will be incorporated by reference in
the next update to the SIP compilation.\9\
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\9\ 62 FR 27968 (May 22, 1997).
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V. Statutory and Executive Orders Review
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
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:
<bullet> Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> Does not contain any unfunded mandate or significantly or
uniquely affect small governments, described in the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4);
<bullet> Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
<bullet> 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, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it
[[Page 7728]]
is published in the Federal Register. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by April 11, 2022. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements.
Dated: February 4, 2022.
KC Becker,
Regional Administrator, Region 8.
For the resons set out in the preamble, 40 CFR part 52 is amended
as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart BB--Montana
Sec. 52.1370 [Amended]
0
2. In Sec. 52.1370, the table in paragraph (c) is amended by removing
the entry ``17.8.334'' under the heading ``(ii) Administrative Rules of
Montana, Subchapter 03, Emission Standards''.
[FR Doc. 2022-02737 Filed 2-9-22; 8:45 am]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on February 10, 2022.
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