[Federal Register: August 24, 2006 (Volume 71, Number 164)]
[Rules and Regulations]
[Page 49999-50001]
[DOCID:fr24au06-11]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Docket No. EPA-R08-OAR-2004-MT-0001, FRL-8202-1]

Approval and Promulgation of Air Quality Implementation Plans;
Montana; Revisions to the Administrative Rules of Montana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving State Implementation Plan (SIP) revisions
submitted by the State of Montana on April 18, 2003. The revisions
modify the open burning rules and references to federal regulations in
the Administrative Rules of Montana. The intended effect of this action
is to make federally enforceable those provisions that EPA is
approving. This action is being taken under section 110 of the Clean
Air Act.

EFFECTIVE DATE: This final rule is effective September 25, 2006.

ADDRESSES: EPA has established a docket for this action under Docket
No. EPA-R08-OAR-2004-MT-0001. All documents in the docket are listed on
the http://www.regulations.gov Web site. 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 either
electronically through http://www.regulations.gov or in hard copy at

the Air and Radiation Program, Environmental Protection Agency (EPA),
Region 8, 999 18th Street, Suite 300, Denver, Colorado 80202-2466. EPA
requests that if at all possible, you contact the individual listed in
the FOR

FURTHER INFORMATION CONTACT section to view the hard copy of the
docket. You may view the hard copy of the docket Monday through Friday,
8 a.m. to 4 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Laurie Ostrand, Air and Radiation
Program, Mailcode 8P-AR, Environmental Protection Agency (EPA), Region
8, 999 18th Street, Suite 200, Denver, Colorado 80202-2466, (303) 312-
6437<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Final Action
III. Statutory and Executive Order Reviews

Definitions

    For the purpose of this document, we are giving meaning to certain
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words State or Montana mean the State of Montana, unless
the context indicates otherwise.

 I. Background

    On July 20, 2004 (69 FR 43371), EPA published a notice of proposed
rulemaking partially approving and partially disapproving SIP revisions
submitted by the State of Montana on April 18, 2003 and August 20,
2003. The April 18, 2003 revisions modify the open burning rules and
references to federal regulations and other materials in the
Administrative Rules of Montana. EPA finalized action on portions of
the August 20, 2003 submittal on January 24, 2006 (71 FR 3776).

A. April 18, 2003 Submittal

    On April 18, 2003, the Governor submitted a SIP revision that
contains amendments to open burning rules at the Administrative Rules
of Montana (ARM) 17.8.601, 17.8.604, 17.8.605, 17.8.606, 17.8.610,
17.8.612 and 17.8.614 and an amendment to the incorporation by
reference at 17.8.302(f). The amendments allow certain minor open
burning to occur in the winter that had previously been prohibited;
change the timeframe a permit to burn untreated wood waste at a
landfill is valid from 30 days to one year and add the requirement that
the department or its designated representative inspect burn piles at
licensed landfills prior to every burn to ensure that no prohibited
materials are in the piles; allow the open burning of the detonation of
unexploded ordnance; clarify the materials prohibited from open
burning; revise the conditional open burning permit requirements and
make minor editorial and grammatical changes. The submittal also
contains amendments to ARM 17.8.302(f)--Incorporation by Reference. The
Montana Board of Environmental Review (Board) adopted the amendments on
December 6, 2002.
    We proposed to approve all of the April 18, 2003 submittal except
for a phrase in ARM 17.8.604(1)(a). See our July 20, 2004 proposal
notice, 69 FR 43371 at 43373. We are finalizing our approval at this
time, except that we are not taking final action on ARM 17.8.604(1)(a).
    With the April 18, 2003 submittal, among other things, the state is
revising ARM 17.8.604(1) to clarify the material that may not be
disposed of by open burning. In our proposed rulemaking we indicated
that we did not believe the changes impact the stringency of the rule.
However, with the changes, we indicted that the state is adding a
department discretion provision. Specifically, ARM 17.8.604(1)(a)
indicates that waste moved from the premises where it was generated may
not be disposed of by open burning except as provided by other
provisions in the rule or ``or unless approval is granted by the
department on a case-by-case basis.'' The phrase ``or unless approval
is granted by the department on a case-by-case basis'' is considered a
department discretion. A department discretion provision allows the
Department to revise the SIP without completing a formal SIP revision.
In our proposal we indicated that we could not approve department
discretion provisions because they are inconsistent with section 110(i)
of the Act. Therefore, we proposed to approve the changes to ARM
17.8.604(1) except that we proposed to disapprove the phrase ``or
unless approval is granted by the department on a case-by-case basis''
in ARM 17.8.604(1)(a). EPA's final notice on ARM 17.8.604(1)(a) will be
addressed in a separate action.

II. Final Action

    EPA is approving the following changes to the Administrative Rules
of Montana (ARM) that were submitted on April 18, 2003 and effective on
December 27, 2002: ARM 17.8.302(1)(f); 17.8.601(1), (7) and (10);
17.8.604(1) (except paragraph (1)(a)); 17.8.605(1); 17.8.606(3) and
(4); 17.8.610(4); 17.8.612(4) and (5); and 17.8.614(1).
    EPA is not acting on the revisions to ARM 17.8.604(1)(a) that were
submitted on April 18, 2003 and effective on December 27, 2002. These
revisions will be addressed in a separate action.
    Section 110(l) of the Clean Air Act states that a SIP revision
cannot be approved if the revision would interfere with any applicable
requirement concerning attainment and reasonable further progress
towards attainment of the NAAQS or any other applicable requirements of
the Act. The Montana SIP revisions that are the subject of this
document do not interfere with the maintenance of the NAAQS or any
other applicable requirement of the Act. See our proposed approval of
the changes to the State's open burning rules. Therefore, section
110(l) requirements are satisfied.

III. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does 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 (64 FR 43255, August 10, 1999). This action
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. This rule also is
not subject to Executive Order 13045 ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. 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).
    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 October 23, 2006. 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: July 11, 2006.
Kerrigan G. Clough,
Acting Regional Administrator, Region 8.

0
40 CFR part 52 is amended to read as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart BB--Montana

0
2. Section 52.1370 is amended by adding paragraph (c)(63) to read as
follows:

Sec.  52.1370  Identification of plan.

* * * * *
    (c) * * *
    (63) Revisions to State Implementation Plan were submitted by the
State of Montana on April 18, 2003. The revisions modify the open
burning rules and references to federal regulations in the
Administrative Rules of Montana.
    (i) Incorporation by reference.
    (A) Administrative Rules of Montana (ARM) sections: ARM
17.8.302(1)(f); 17.8.601(1), (7) and (10); 17.8.604(1) (except
paragraph 604(1)(a)); 17.8.605(1); 17.8.606(3) and (4); 17.8.610(4);
17.8.612(4) and (5); and 17.8.614(1), effective December 27, 2002.

[FR Doc. E6-14052 Filed 8-23-06; 8:45 am]

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