Proposed Rule2024-23568
Revisions to the Federal Implementation Plan for the Billings/Laurel, Montana, Sulfur Dioxide Area
Primary source
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Published
October 15, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to revise a Federal Implementation Plan (FIP) applicable to sulfur dioxide (SO<INF>2</INF>) emissions from several sources located in Billings and Laurel, Montana. Specifically, the EPA is proposing to revise a portion of the FIP promulgated by the EPA in 2008 (2008 Billings/Laurel SO<INF>2</INF> FIP) by removing a provision which contained an affirmative defense for exceedances of flare emission limits during malfunctions, startups, and shutdowns. The EPA is proposing this action pursuant to the Clean Air Act (CAA).
Full Text
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<title>Federal Register, Volume 89 Issue 199 (Tuesday, October 15, 2024)</title>
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[Federal Register Volume 89, Number 199 (Tuesday, October 15, 2024)]
[Proposed Rules]
[Pages 82948-82953]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-23568]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2023-0587; FRL-11571-01-R8]
Revisions to the Federal Implementation Plan for the Billings/
Laurel, Montana, Sulfur Dioxide Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
revise a Federal Implementation Plan (FIP) applicable to sulfur dioxide
(SO<INF>2</INF>) emissions from several sources located in Billings and
Laurel, Montana. Specifically, the EPA is proposing to revise a portion
of the FIP promulgated by the EPA in 2008 (2008 Billings/Laurel
SO<INF>2</INF> FIP) by removing a provision which contained an
affirmative defense for exceedances of flare emission limits during
malfunctions, startups, and shutdowns. The EPA is proposing this action
pursuant to the Clean Air Act (CAA).
DATES: Written comments must be received on or before December 16,
2024. Public hearing: If anyone contacts us requesting a public hearing
on or before October 30, 2024, we will hold a hearing. Additional
information about the hearing, if requested, will be published in a
subsequent Federal Register document. Contact Adam Clark at
<a href="/cdn-cgi/l/email-protection#accfc0cddec782cdc8cdc1ecc9dccd82cbc3da"><span class="__cf_email__" data-cfemail="9ffcf3feedf4b1fefbfef2dffaeffeb1f8f0e9">[email protected]</span></a>, to request a hearing or to determine if a hearing
will be held.
[[Page 82949]]
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2023-0587, to the Federal Rulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. The EPA may publish any comment received
to its public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. The EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the FOR FURTHER INFORMATION CONTACT section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit <a href="https://www2.epa.gov/dockets/commenting-epa-dockets">https://www2.epa.gov/dockets/commenting-epa-dockets</a>.
Docket: All documents in the docket are listed in the <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 electronically in
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. Please email or call the person listed in
the FOR FURTHER INFORMATION CONTACT section if you need to make
alternative arrangements for access to the docket.
FOR FURTHER INFORMATION CONTACT: Adam Clark, Air and Radiation
Division, EPA, Region 8, Mail code 8ARD-IO, 1595 Wynkoop Street,
Denver, Colorado 80202-1129, telephone number: (303) 312-7104, email
address: <a href="/cdn-cgi/l/email-protection#f3909f928198dd9297929eb3968392dd949c85"><span class="__cf_email__" data-cfemail="7e1d121f0c15501f1a1f133e1b0e1f50191108">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
Table of Contents
I. What action is the EPA proposing?
II. Background
A. Billings/Laurel SO<INF>2</INF> Area History
B. Billings/Laurel SO<INF>2</INF> FIP
C. Affirmative Defense Provision Policy History
III. The EPA's Proposed Action
IV. Environmental Justice Considerations
V. Statutory and Executive Order Reviews
I. What action is the EPA proposing?
The EPA is proposing to revise the portion of the 2008 Billings/
Laurel SO<INF>2</INF> FIP found at 40 CFR 52.1392(i), titled
``Affirmative defense provisions for exceedances of flare emission
limits during malfunctions, startups, and shutdowns.'' This includes
proposed withdrawal of all of the subsections under 40 CFR 52.1392(i),
including Sec. 52.1392(i)(1) and subsections therein, and Sec.
52.1392(i)(2) and (3). The rationale for this proposed action is
described in the following sections.
II. Background
A. Billings/Laurel SO2 Area History
On March 3, 1978 (43 FR 8962), the Laurel, Montana area was
designated as nonattainment for the 1971 primary SO<INF>2</INF>
national ambient air quality standards (NAAQS). See 40 CFR 81.327. The
nonattainment area consists of an area with a two-kilometer radius
around the CHS Laurel Refinery. This designation was based on monitored
and modeled violations of the NAAQS. The EPA reaffirmed this
nonattainment designation on September 11, 1978 (43 FR 40412). The 1990
CAA Amendments, enacted November 15, 1990, again reaffirmed the
nonattainment designation of Laurel with respect to the 1971 primary
SO<INF>2</INF> NAAQS. Since the Laurel nonattainment area had a fully
approved CAA title I part D plan, the State was not required to submit
a revised plan for the area under the 1990 Amendments (see sections 191
and 192 of the CAA).
On March 3, 1978 (43 FR 8962), those areas in the State that were
meeting the 1971 SO<INF>2</INF> NAAQS were designated as ``Better Than
National Standards.'' The Billings area was in the portion of the State
that was designated as ``Better Than National Standards.''
The CAA requires States to submit to the EPA a plan, termed a State
Implementation Plan (SIP), to assure that the NAAQS are attained and
maintained. Air quality modeling completed in 1991 and 1993 for the
Billings/Laurel area predicted that the SO<INF>2</INF> NAAQS were not
being attained, including outside of the existing nonattainment area
and in Billings.\1\ As a result, the EPA (pursuant to sections
110(a)(2)(H) and 110(k)(5) of the CAA) sent a letter to the Governor of
Montana, dated March 4, 1993,\2\ finding the SIP was substantially
inadequate to attain or maintain the NAAQS (known as a ``SIP Call'')
and requested the State of Montana revise its previously approved SIP
for the Billings/Laurel area. In the request letter, we declared that
the SIP Call would become final agency action when we made a final
determination regarding the State of Montana's response to the SIP
Call. In response, the State submitted revisions to the SIP on
September 6, 1995, August 27, 1996, April 2, 1997, July 29, 1998, and
May 4, 2000. We made a final determination regarding the SIP Call when
we partially and limitedly approved and partially and limitedly
disapproved the Billings/Laurel SO<INF>2</INF> SIP revisions submitted
by the State in response to the request letter (67 FR 22168, 22173, May
2, 2002). On May 22, 2003 (68 FR 27908),\3\ we partially approved and
partially disapproved provisions of the Billings/Laurel SO<INF>2</INF>
SIP. Montana Sulfur and Chemical Company filed a petition for review
challenging the EPA's 2002 partial SIP disapproval. That petition was
held in abeyance pending the EPA's promulgation of a FIP to remedy the
disapproved portions of the Billings/Laurel SO<INF>2</INF> SIP.
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\1\ As stated in the proposed FIP, ``Laurel is located within
the Yellowstone Valley approximately 15 miles southwest of Billings.
. . . Although Laurel and Billings are 15 miles apart, the
industries in Billings have some impact on the air quality in Laurel
and the industry in Laurel has some impact on the air quality in
Billings.'' 79 FR 39260-39261, July 12, 2006.
\2\ EPA published this letter in the Federal Register on August
4, 1993 (58 FR 41430).
\3\ See also June 2, 2003, correction document (68 FR 32799).
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B. Billings/Laurel SO2 FIP
On April 21, 2008, the EPA promulgated a FIP applicable to several
sources located in Billings and Laurel, Montana, hereon referred to as
the ``2008 Billings/Laurel SO<INF>2</INF> FIP'' (73 FR 21418). The EPA
promulgated the 2008 Billings/Laurel SO<INF>2</INF> FIP because of our
previous partial and limited disapprovals of the Billings/Laurel
SO<INF>2</INF> SIP. The intended effect of this action was to assure
attainment of the 1971 SO<INF>2</INF> NAAQS in the Billings/Laurel,
Montana area. The 2008 Billings/Laurel SO<INF>2</INF> FIP did not
replace the SIP entirely, but instead replaced elements of, or filled
gaps in, the disapproved portion of the SIP. Montana Sulfur and
Chemical Company filed a petition for review challenging the EPA's 2008
FIP, at which point the previous litigation challenging the 2002 SIP
disapproval was reactivated. The court ultimately issued a single
ruling affirming the
[[Page 82950]]
EPA's action on the SIP Call, 2002 SIP disapproval, and FIP.\4\
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\4\ See Montana Sulphur and Chemical Co. v. U.S. EPA, 666 F.3d
1174, (9th Cir. 2012).
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The 2008 Billings/Laurel SO<INF>2</INF> FIP, which remains in place
today, contains emission limits and compliance determining methods for
four sources located in Billings and Laurel, Montana. Three of the
sources are petroleum refineries: CHS Inc. Laurel Refinery, Phillips 66
Billings Refinery (including the Jupiter Sulfur facility), and
ExxonMobil Billings Refinery (now the Par Montana Refinery). The fourth
source is Montana Sulphur and Chemical Company, which provides sulfur
recovery for the Par Montana Refinery. Among the major components of
the 2008 Billings/Laurel SO<INF>2</INF> FIP was the establishment of
flare emission limits at all four sources (150 lbs SO<INF>2</INF>/3-
hour period at all but the Jupiter Sulfur flare, 75 lbs SO<INF>2</INF>/
3-hour period shared limit for the Jupiter Sulfur flare and the Jupiter
Sulfur SRU/ATS stack) \5\ and monitoring methods to determine
compliance with those limits. To determine flare emissions, the 2008
Billings/Laurel SO<INF>2</INF> FIP required concentration monitoring
(which can consist of continuous monitoring, grab sampling, or
integrated sampling) and continuous flow monitoring. The 2008 Billings/
Laurel SO<INF>2</INF> FIP also included an affirmative defense to civil
penalties for violations of the flare limits that occur during startup,
shutdown, and malfunction (SSM) periods.
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\5\ SRU stands for sulfur recovery unit, and ATS stands for
Ammonium Thiosulfate.
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These affirmative defense provisions for the flare limits, which
the EPA finalized into the 2008 Billings/Laurel SO<INF>2</INF> FIP at
40 CFR 52.1392(i), are the portions of the 2008 Billings/Laurel
SO<INF>2</INF> FIP we are proposing to remove from the 2008 Billings/
Laurel SO<INF>2</INF> FIP with this action. Below, we provide further
detail on the history of affirmative defense provisions and the
rationale for our removal of these provisions in this proposed action.
C. Affirmative Defense Provision Policy History
On June 12, 2015, the 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,'' hereafter referred to
as the ``2015 SSM SIP Action'' (80 FR 33839). Prior to the 2015 SSM SIP
Action, which is discussed later in this section, the Agency had a
longstanding interpretation of the CAA with respect to the treatment of
excess emissions during periods of SSM in SIPs. This statutory
interpretation had been expressed, reiterated, and elaborated upon in a
series of guidance documents issued in 1982, 1983, and 1999.
In the 1982 SSM Guidance, the EPA recommended the exercise of
enforcement discretion to address periods of excess emissions occurring
during SSM events.\6\ Subsequently, in the 1983 SSM Guidance, the EPA
expanded on this approach by recommending that a State could elect to
adopt SIP provisions providing parameters for the exercise of
enforcement discretion by the State's personnel.\7\ In our 1999 SSM
Guidance, the EPA interpreted that States could elect to create
``affirmative defense'' provisions applicable to SSM events in their
SIPs.\8\ Also in the 1999 Guidance, the EPA established parameters that
should be included as part of such an affirmative defense in order to
ensure that it would be available only in certain narrow
circumstances.\9\ In the 2008 Billings/Laurel SO<INF>2</INF> FIP, the
EPA explained that we were following our national policy with respect
to SSM periods as expressed in the 1999 SSM Guidance by including an
affirmative defense in our 2008 Billings/Laurel SO<INF>2</INF> FIP. 73
FR 21434, April 21, 2008. Specifically, we stated, ``[t]o provide
relief to the sources for truly unavoidable violations, while still
maintaining appropriate incentives for compliance, we are providing an
affirmative defense to penalties for violations of flare limits during
malfunctions, startups, and shutdowns. The elements of the defense,
which a source would have to prove in court or before an administrative
judge, are enumerated in our 2008 final rule and are consistent with
the elements described in our 1999 excess emissions memorandum.'' Id.
at 73 FR 21432.
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\6\ Memorandum to Regional Administrators, Region I-X; From:
Kathleen M. Bennett, Assistant Administrator for Air, Noise and
Radiation; Subject: Policy on Excess Emissions During Startup,
Shutdown, Maintenance, and Malfunctions. September 28, 1982.
\7\ Memorandum to Regional Administrators, Regions I-X; From:
Kathleen M. Bennett, Assistant Administrator for Air, Noise and
Radiation; Subject: Policy on Excess Emissions During Startup,
Shutdown, Maintenance, and Malfunctions. February 15, 1983.
\8\ Memorandum to Regional Administrators, Regions I-X; From:
Steven A. Herman, Assistant Administrator for Enforcement and
Compliance Assurance, and Bob Perciasepe, Assistant Administrator
for Air and Radiation; Subject: Policy on Excess Emissions During
Malfunctions, Startup, and Shutdown. September 20, 1999.
\9\ Id.
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On February 22, 2013, the EPA proposed to take action on a petition
for rulemaking that the Sierra Club filed with the EPA Administrator on
June 30, 2011 (78 FR 12460). In that action, the EPA proposed to grant
the Petitioner's claim with respect to affirmative defenses applicable
to planned events such as startup and shutdown. This was a change from
the EPA's interpretation of the CAA in the 1999 SSM Guidance, in which
the EPA had interpreted that States could elect to create such
affirmative defense provisions for startup and shutdown events, so long
as the provisions were narrowly drawn and consistent with the
established criteria to assure that they meet CAA requirements. The
EPA's evaluation of the petition and the statutory basis for
affirmative defense provisions initiated a review of the
appropriateness of affirmative defense provisions applicable during
startup and shutdown, which are ordinary modes of operation that are
generally predictable and within the control of the source. As
explained in more detail in the February 22, 2013 proposal document,
the EPA's evaluation of the Sierra Club Petition in light of then-
recent case law \10\ caused the EPA to alter its view on the
appropriateness of affirmative defenses applicable to planned events
such as startup and shutdown. Specifically, the EPA stated that
``because these events are modes of normal operation, the EPA believes
that sources should be expected to comply with applicable emission
limitations during such events.'' (Id. at 12480)
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\10\ Court decisions confirmed that this requirement for
continuous compliance prohibits exemptions for excess emissions
during SSM events. See, e.g., Sierra Club v. EPA, 551 F.3d 1019,
1021 (D.C. Cir. 2008); US Magnesium, LLC v. EPA, 690 F.3d 1157, 1170
(10th Cir. 2012).
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The EPA distinguished between affirmative defense provisions for
startup and shutdown and those for malfunctions, stating ``the
distinction that makes affirmative defenses appropriate for
malfunctions is that by definition those events are unforeseen and
could not have been avoided by the owner or operator of the source, and
the owner or operator of the source will have taken steps to prevent
the violation and to minimize the effects of the violation after it
occurs.'' Id.
Subsequent to the EPA's issuance of the February 22, 2013 proposal,
on April 18, 2014, the U.S. Court of Appeals for the District of
Columbia Circuit ruled that CAA sections 113 and 304 preclude the EPA
the authority to create affirmative defense provisions in
[[Page 82951]]
the Agency's own regulations imposing emission limits on sources,
because such provisions purport to alter the jurisdiction of federal
courts to assess liability and impose penalties for violations of those
limits in private civil enforcement cases.\11\ In light of this
decision, on September 17, 2014, the EPA issued a supplemental proposed
rulemaking which outlined our updated policy that affirmative defense
SIP provisions, even if they are narrowly tailored and applicable only
to malfunctions, are not consistent with CAA requirements. Accordingly,
the EPA proposed to grant the portion of Sierra Club's petition with
regard to affirmative defenses in the case of malfunctions that it had
previously proposed to deny.\12\ In that supplemental proposal, the EPA
stated that the reasoning of the court in the NRDC decision indicates
that the States, like the EPA, have no authority in SIP provisions to
alter the statutory jurisdiction of federal courts under CAA section
113 and 304 to assess penalties for violations of CAA requirements
through affirmative defense provisions. We additionally noted that if
States lack authority under the CAA to alter the jurisdiction of the
federal courts through affirmative defense provisions in SIPs, then the
EPA also lacks authority to approve any such provision in a SIP.\13\
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\11\ See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).
\12\ See ``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; Supplemental Proposal To Address
Affirmative Defense Provisions in States Included in the Petition
for Rulemaking and in Additional States.'' 79 FR 55920, September
17, 2014.
\13\ Id. at 79 FR 55929.
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On June 12, 2015, pursuant to CAA section 110(k)(5), the EPA
finalized the 2015 SSM SIP Action. The 2015 SSM SIP Action clarified,
restated, and updated the 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.\14\
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\14\ The 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 call by November 22, 2016.
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The EPA issued a Memorandum in October 2020 (2020 Memorandum),
which stated that certain provisions governing SSM periods in SIPs,
including affirmative defense provisions, could be viewed as consistent
with CAA requirements.\15\ However, on September 30, 2021, the EPA's
Deputy Administrator withdrew the 2020 Memorandum and announced the
EPA's return to the policy articulated in the 2015 SSM SIP Action (2021
Memorandum).\16\ 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.
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\15\ October 9, 2020 memorandum ``Inclusion of Provisions
Governing Periods of Startup, Shutdown, and Malfunctions in State
Implementation Plans,'' from Andrew R. Wheeler, Administrator. 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 in 2015.
\16\ 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.
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On March 1, 2024, the D.C. Circuit Court of Appeals issued a
decision in Environ. Comm. Fl. Elec. Power v. EPA, No. 15-1239. The
case is a consolidated set of petitions for review of the 2015 SSM SIP
Action. The Court granted the petitions in part, vacating the SIP call
with respect to SIP provisions that the EPA identified as automatic
exemptions, director's discretion provisions, and affirmative defenses
that are functionally exemptions; and denied the petitions in part as
to other provisions that the EPA identified as ambiguous provisions,
overbroad enforcement discretion provisions, or affirmative defense
provisions that would preclude or limit a court from imposing relief in
the case of violations, which the Court also refers to as ``specific
relief.'' This is juxtaposed against the Court's granting of the
petition as to affirmative defenses that are functionally exemptions
because they ``create an exemption from the normal emission rule.''
\17\ The EPA finds that the affirmative defense provision in the 2008
Billings/Laurel SO<INF>2</INF> FIP to be ``specific relief'' as
interpreted by the Court, as the provision specifically states that an
owner or operator ``may assert an affirmative defense to a claim for
civil penalties for exceedances of such limits during periods of
malfunction, startup, or shutdown,'' and ``to establish the affirmative
defense and to be relieved of a civil penalty in any action to enforce
such a limit, the owner or operator of the facility must meet the
notification requirements of paragraph (i)(2) of this section in a
timely manner and prove by a preponderance of evidence . . .'' \18\ The
EPA has assessed the impact of the decision with respect to the removal
of the specific affirmative defense provisions at issue in the
Billings/Laurel SO<INF>2</INF> FIP. We have concluded that the
previously stated reasons for the proposed removal of these provisions,
as articulated in the 2015 SSM SIP Action and 2021 Memorandum, are
consistent with the recent D.C. Circuit decision. The Court upheld the
EPA's 2015 SSM SIP Action with regard to affirmative defenses against
specific relief, finding that because CAA 304(a) and 113(b) authorize
citizens and the EPA to seek injunctive relief and monetary penalties
against sources that violate a SIP's emission rules, such an
affirmative defense would ``block that aspect of the Act's enforcement
regime.'' \19\
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\17\ See Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77, 115
(D.C. Cir. 2024).
\18\ See 40 CFR 52.1392(i)(1).
\19\ See Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77,
114-115 (D.C. Cir. 2024).
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To maintain consistency with our SSM policy regarding affirmative
defenses against specific relief, and with the CAA's prohibition
against such affirmative defenses, we are proposing to find that the
affirmative defense provisions currently promulgated in the 2008
Billings/Laurel SO<INF>2</INF> FIP at 40 CFR 52.1392(i) are
substantially inadequate to meet CAA requirements. Therefore, we are
proposing to revise the 2008 Billings/Laurel SO<INF>2</INF> FIP by
removing these provisions.
III. The EPA's Proposed Action
The EPA is proposing to revise the 2008 Billings/Laurel
SO<INF>2</INF> FIP by removing Sec. 52.1392(i) and all of the
provisions therein, including paragraphs Sec. 52.1392 (i)(1)-(3). The
EPA is proposing this action in line with our policy regarding
affirmative defense provisions against specific relief, as described in
our 2015 SSM SIP Action and affirmed by the D.C. Circuit.
IV. Environmental Justice Considerations
The EPA defines environmental justice (EJ) as ``the fair treatment
and meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' \20\ The EPA further defines the term ``fair treatment'' to
mean that ``no group of people should bear a disproportionate burden of
[[Page 82952]]
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.'' \21\ Recognizing the
importance of these considerations to local communities, the EPA
conducted an environmental justice screening analysis around the
location of the facilities associated with this action to evaluate
environmental and demographic indicators for the areas impacted by this
proposed action. However, the EPA is providing the information
associated with this analysis for informational purposes only. The
information provided herein is not a basis of this proposed action.
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\20\ See <a href="https://www.epa.gov/environmentaljustice/learn-about-environmental-justice">https://www.epa.gov/environmentaljustice/learn-about-environmental-justice</a>.
\21\ Id.
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The EPA conducted the screening analyses using EJScreen, an EJ
mapping and screening tool that provides the EPA with a nationally
consistent dataset and approach for combining various environmental and
demographic indicators.\22\ The EJScreen tool presents these indicators
at a census block group (CBG) level or a larger user-specified
``buffer'' area that covers multiple CBGs.\23\ An individual CBG is a
cluster of contiguous blocks within the same census tract and generally
contains between 600 and 3,000 people. EJScreen is not a tool for
performing in-depth risk analysis, but is instead a screening tool that
provides an initial representation of indicators related to EJ and is
subject to uncertainty in some underlying data (e.g., some
environmental indicators are based on monitoring data which are not
uniformly available; others are based on self-reported data).\24\ For
informational purposes, we have summarized EJScreen data within larger
``buffer'' areas covering multiple block groups and representing the
average resident within the buffer areas surrounding the facilities.
EJScreen environmental indicators help screen for locations where
residents may experience a higher overall pollution burden than would
be expected for a block group with the same total population in the
U.S. These indicators of overall pollution burden include estimates of
ambient particulate matter (PM<INF>2.5</INF>) and ozone concentration,
a score for traffic proximity and volume, percentage of pre-1960
housing units (lead paint indicator), and scores for proximity to
Superfund sites, risk management plan (RMP) sites, and hazardous waste
facilities.\25\ EJScreen also provides information on demographic
indicators, including percent of low-income, communities of color,
linguistic isolation, and less than high school education.
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\22\ The EJSCREEN tool is available at <a href="https://www.epa.gov/ejscreen">https://www.epa.gov/ejscreen</a>.
\23\ See <a href="https://www.census.gov/programs-surveys/geography/about/glossary.html">https://www.census.gov/programs-surveys/geography/about/glossary.html</a>.
\24\ In addition, EJSCREEN relies on the five-year block group
estimates from the U.S. Census American Community Survey. The
advantage of using five-year over single-year estimates is increased
statistical reliability of the data (i.e., lower sampling error),
particularly for small geographic areas and population groups. For
more information, see <a href="https://www.census.gov/content/dam/Census/library/publications/2020/acs/acs_general_handbook_2020.pdf">https://www.census.gov/content/dam/Census/library/publications/2020/acs/acs_general_handbook_2020.pdf</a>.
\25\ For additional information on environmental indicators and
proximity scores in EJSCREEN, see ``EJSCREEN Environmental Justice
Mapping and Screening Tool: EJSCREEN Technical Documentation,''
chapter 3 and appendix C (September 2019) at <a href="https://www.epa.gov/sites/default/files/2021-04/documents/ejscreen_technical_document.pdf">https://www.epa.gov/sites/default/files/2021-04/documents/ejscreen_technical_document.pdf</a>.
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The EPA prepared EJScreen reports covering buffer areas of
approximately five kilometers around the four facilities subject to the
2008 Billings/Laurel SO<INF>2</INF> FIP. From those reports, no
facilities showed EJ indices greater than the 80th national
percentiles.\26\ The full, detailed EJScreen reports are provided in
the docket for this rulemaking.
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\26\ For a place at the 80th percentile nationwide, that means
20 percent of the U.S. population has a higher value. The EPA
identified the 80th percentile filter as an initial starting point
for interpreting EJScreen results. The use of an initial filter
promotes consistency for the EPA's programs and regions when
interpreting screening results.
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V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14094: Modernizing Regulatory Review
This action is exempt from review under Executive Order 12866, as
amended by Executive Order 14094, as it is not a rule of general
applicability. This action specifically applies to 4 facilities in the
State of Montana.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act (PRA), because it revises
the reporting requirements for 4 facilities in the State of Montana.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities as no small
entities are subject to the requirements of this rule.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. This action imposes
no enforceable duty on any State, local, or Tribal governments or the
private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It 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.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications, as specified in
Executive Order 13175, because this proposed rule would not apply on
any Indian reservation land or in any other area where the EPA or an
Indian Tribe has demonstrated that the Tribe has jurisdiction, and it
will not impose substantial direct costs on Tribal governments or
preempt Tribal law. Thus, Executive Order 13175 does not apply to this
action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997). The EPA interprets Executive Order 13045 as applying
only to those regulatory actions that concern environmental health or
safety risks that EPA has reason to believe may disproportionately
affect children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it merely removes a provision from the
2008 Billings/Laurel SO<INF>2</INF> FIP that is inconsistent with the
requirements of the CAA.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.
[[Page 82953]]
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All
The EPA believes that it is not practicable to assess whether the
human health or environmental conditions that exist prior to this
action result in disproportionate and adverse effects on communities
with environmental justice concerns. While the EPA has identified the
sources that would be impacted by the finalization of this proposed
action, the EPA cannot quantify the baseline conditions and impacts the
affirmative defense provisions have had on these sources, nor can we
project potential emissions impacts from these sources as a result of
this action. However, the EPA finds that this proposed action is
expected to have a neutral to positive impact on the air quality of the
affected area.
The EPA performed a screening analysis using the EJScreen tool \27\
to evaluate environmental and demographic indicators for the areas
impacted by this proposed action. The results of this assessment are in
the docket for this action. The EPA is providing this information for
public information purposes, and not as a basis of our proposed action.
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\27\ EJSCREEN is an environmental justice mapping and screening
tool that provides the EPA with a nationally consistent dataset and
approach for combining environmental and demographic indicators;
available at <a href="https://www.epa.gov/ejscreen/what-ejscreen">https://www.epa.gov/ejscreen/what-ejscreen</a>.
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List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Greenhouse gases, Incorporation by reference, Intergovernmental
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting
and recordkeeping requirements, Sulfur oxides, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Michael S. Regan,
Administrator.
For the reasons stated in the preamble, the Environmental
Protection Agency proposes to amend 40 CFR part 52 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. 52.1392 [Amended]
0
2. In Sec. 52.1392, remove and reserve paragraph (i).
[FR Doc. 2024-23568 Filed 10-11-24; 8:45 am]
BILLING CODE 6560-50-P
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