[Federal Register: March 4, 2010 (Volume 75, Number 42)]
[Proposed Rules]
[Page 9834-9843]
[DOCID:fr04mr10-22]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2006-0601; FRL-9122-6]

Approval and Disapproval and Promulgation of Air Quality
Implementation Plans; Montana; Revisions to the Administrative Rules of
Montana--Air Quality, Subchapter 7 and Other Subchapters

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to partially approve and partially disapprove
State Implementation Plan revisions submitted by the State of Montana
on August 26, 1999, May 28, 2003, March 9, 2004, October 25, 2005, and
October 16, 2006. The revisions contain new, amended, and repealed
rules in Subchapter 7 (Permit, Construction, and Operation of Air
Contaminant Sources) that pertain to the issuance of Montana air
quality permits, in addition to other minor administrative changes to
other subchapters of the Administrative Rules of Montana. The intended
effect of this action is to propose to approve those

portions of the rules that are approvable and to propose to disapprove
those portions of the rules that are inconsistent with the Clean Air
Act. This action is being taken under section 110 of the Clean Air Act.

DATES: Comments must be received on or before April 5, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2006-0601, by one of the following methods:
     http://www.regulations.gov. Follow the on-line
instructions for submitting comments.
     E-mail<EMAIL_ADDRESS>and<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER> (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Callie A. Videtich, Director, Air Program,
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129.
     Hand Delivery: Callie A. Videtich, Director, Air Program,
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only
accepted Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal
holidays. Special arrangements should be made for deliveries of boxed
information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2006-0601. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA, without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/
epahome/dockets.htm. For additional instructions on submitting
comments, go to Section I. General Information of the SUPPLEMENTARY
INFORMATION section of this document.
    Docket: All documents in the docket are listed in the http://
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly-available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air Program,
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129. EPA requests that if at all possible, you
contact the individual listed in the FOR FURTHER INFORMATION CONTACT
section to view the hard copy of the docket. You may view the hard copy
of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air Program, Mailcode 8P-
AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129,<PHONE_NUMBER>, or<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
II. Summary of SIP Revisions
III. EPA Review and Proposed Action on SIP Revisions
IV. Summary of EPA's Proposed Action
V. Statutory and Executive Order Reviews

Definitions

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

A. What Should I Consider as I Prepare My Comments for EPA?

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

II. Summary of SIP Revisions

A. August 26, 1999 Submittal

    On August 26, 1999, the Governor of Montana submitted a State
Implementation Plan (SIP) revision request. The revision contains
amended and repealed rules to various subchapters in the Administrative
Rules of Montana (ARM) that were adopted by

the Montana Board of Environmental Review (Board) on May 14, 1999.
Specific to Subchapter 7 (Permit, Construction, and Operation of Air
Contaminant Sources), the submittal revised ARM 17.8.705 and 17.8.733
and repealed ARM 17.8.708. However, as indicated below, a May 28, 2003
submittal rescinded the August 26, 1999 revisions to ARM 17.8.705 and
17.8.733.

B. May 28, 2003 Submittal

    On May 28, 2003, the Governor of Montana submitted a SIP revision
request. The revision contains new, amended, and repealed rules adopted
by the Board on December 6, 2002. The new and repealed rules pertain to
the issuance of Montana air quality permits and are in Subchapter 7 of
the ARM. The amended rules contain references to the new and repealed
rules.
    The new rules include: ARM 17.8.740, 17.8.743, 17.8.744, 17.8.745,
17.8.748, 17.8.749, 17.8.752, 17.8.755, 17.8.756, 17.8.759, 17.8.760,
17.8.762, 17.8.763, 17.8.764, 17.8.765, 17.8.767, and 17.8.770.
    The repealed SIP-approved rules include: ARM 17.8.701, 17.8.702,
17.8.704, 17.8.705, 17.8.706, 17.8.707, 17.8.710, 17.8.715, 17.8.716,
17.8.717, 17.8.720, 17.8.730, 17.8.731, 17.8.732, 17.8.733, and
17.8.734.
    The amended SIP-approved rules include: ARM 17.8.101, 17.8.110,
17.8.309, 17.8.310, 17.8.316, 17.8.818, 17.8.825, 17.8.826, 17.8.901,
17.8.904, 17.8.905, 17.8.906, 17.8.1004, 17.8.1005, 17.8.1106, and
17.8.1109.
    The May 28, 2003 submittal also rescinded outstanding SIP
submissions for rules that amended the following: ARM 17.8.702, adopted
July 20, 2001 and submitted on December 20, 2001; \1\ ARM 17.8.705 and
17.8.733, adopted on May 14, 1999 and submitted on August 26, 1999.
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    \1\ Note that the May 28, 2003 submittal requested rescinding
revisions to ARM 17.8.702, adopted on July 20, 2001 and submitted on
December 20, 2001. EPA had already approved the revisions to ARM
17.8.702 (see 67 FR 55125, 8/28/02, and 40 CFR 52.1370(c)(55)) by
the time we had received the May 28, 2003 letter. However, the May
28, 2003 submittal also requests that all of ARM 17.8.702 be
repealed. We are proposing to remove ARM 17.8.702 from the
federally-approved SIP.
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    EPA provided written comments to the State during the rulemaking
process for the revisions submitted to EPA on May 28, 2003. To review
these comments please see the October 9, 2002 letter from Richard R.
Long, EPA, to the Board included in the docket for this action. All
future references in this notice to EPA's comments during the State
rulemaking process refer to this letter. In addition, the State
provided a response to all comments received during their rulemaking.
To review these responses please see Public Hearing Notice and Final
Notices on amendments of air quality rules letter dated December 26,
2002 included as part of the May 28, 2003 submittal. All future
references in this notice to the State's response to EPA's comments
refer to this letter.

C. March 9, 2004 Submittal

    On March 9, 2004, the Governor of Montana submitted a SIP revision
request. The revision contains amended rules adopted by the Board on
September 26, 2003. The amended rules pertain to the issuance of
Montana air quality permits. The following rules were amended: ARM
17.8.749, 17.8.759, 17.8.763, and 17.8.764.

D. October 25, 2005 Submittal

    On October 25, 2005, the Governor of Montana submitted a SIP
revision request. The revision contains amended rules adopted by the
Board on June 3, 2005. EPA approved all of the October 25, 2005
submittal on July 19, 2006 (71 FR 40922), except for ARM 17.8.767. We
are addressing ARM 17.8.767 in this document.

E. October 16, 2006 Submittal

    On October 16, 2006, the Governor of Montana submitted a SIP
revision request. The revision contains an amended rule for ARM
17.8.743(1) and new rules codified as ARM 17.8.1601, 17.8.1602,
17.8.1603, 17.8.1604, 17.8.1605, and 17.8.1606, and ARM 17.8.759
adopted by the Board on December 2, 2005. The submittal also requested
to withdraw ARM 17.8.743(1)(c) from being incorporated into the SIP. We
are addressing ARM 17.8.759 in this document. The revision to ARM
17.8.743(1) and the new rules pertain to the regulation of oil and gas
well facilities, and we will address this revision request in a
separate action.

III. EPA Review and Proposed Action on SIP Revisions

A. Repealed Rules

    The State has completely rewritten its permitting rules in
Subchapter 7 of the ARM. The State has repealed the existing SIP-
approved rules and adopted new rules. We are proposing to approve the
State's May 28, 2003 request to repeal the following rules from the
SIP: ARM 17.8.701, 17.8.702, 17.8.704, 17.8.705, 17.8.706, 17.8.707,
17.8.710, 17.8.715, 17.8.716, 17.8.717, 17.8.720, 17.8.730, 17.8.731,
17.8.732, 17.8.733, and 17.8.734. Our review and proposed action on the
new rules submitted on May 28, 2003, with revisions submitted on March
9, 2004 and October 25, 2005, are discussed below.
    The August 26, 1999 SIP revision requested that ARM 17.8.708 be
repealed from the SIP. On September 19, 1997, the Governor of Montana
submitted a SIP revision that completely recodified the State's air
quality rules. ARM 17.8.708 was one of the rules recodified. In our
August 13, 2001 final notice (66 FR 42427) on the recodification, we
indicated that we would act on several provisions, including ARM
17.8.708, at a later date. Therefore, ARM 17.8.708 was never approved
into the SIP. (See page 42434 of the August 13, 2001 notice). At this
point there is no ARM 17.8.708 to repeal as requested by the August 26,
1999 submittal letter.

B. New Subchapter 7 Rules

1. ARM 17.8.740 Definitions
    On May 28, 2003, the State submitted new section ARM 17.8.740. ARM
17.8.740 contains the definitions applicable to Subchapter 7.
Previously the definitions were in ARM 17.8.701, which was repealed
with the May 2003 submittal. ARM 17.8.740 contains definitions for some
terms not contained in ARM 7.8.701, as well as makes minor
modifications to some of the definitions that were contained in ARM
17.8.701. Also, two terms in ARM 17.8.701, ``lowest achievable emission
rate'' and ``major emitting facility,'' are not contained in ARM
17.8.740.
    It is acceptable that the ARM 17.8.740 does not contain definitions
for ``lowest achievable emission rate'' and ``major emitting
facility.'' ``Lowest achievable emission rate'' is defined at ARM
17.8.901(10) and the State's rules also contain a definition of ``major
stationary source'' at ARM 17.8.801(22) and 17.8.901(12).
    Definitions for the following terms are being added to ARM
17.8.740, which were not previously in ARM 17.8.701: day; emitting
unit; facility; install or installation; modify, Montana air quality
permit; and routine maintenance, repair, or replacement.
    We are proposing to approve the definitions in section ARM
17.8.740, with the exception of the definitions of ``routine
maintenance, repair, or replacement'' (RMRR), ``modify,'' ``negligible
risk to the public health, safety, and welfare and to the environment''
and ``construct or construction.'' We are proposing to disapprove the
definition of ``routine maintenance, repair, or replacement'' and
``negligible risk to the public health, safety, and welfare and to the
environment,'' and portions of the

definition of ``construct or construction'' and we are not taking
action on portions of the definition of ``modify'' for the following
reasons.
    a. ``RMRR'' EPA has determined that the definition for RMRR at ARM
17.8.740(14) would be applicable to major sources, since this
definition does not explicitly limit its application to true minor
sources. The term RMRR is used in Montana's Prevention of Significant
Deterioration (PSD) and non-attainment New Source Review (NSR)
regulations (ARM 17.8.801(20)(b)(i) and 17.8.901(11)(b)(i)), but RMRR
is not defined in these subchapters. During the State's rulemaking
process we provided comments that expressed our concerns with the
definition of RMRR.\2\ In response to our comments, the State indicated
that the definitions section (that includes the RMRR definition) in
Subchapter 7 (Permit, Construction and Operation of Air Contaminant
Sources) explicitly states that the definitions contained in that rule
are ``for the purposes of this subchapter,'' and therefore, the
definition of ``routine maintenance, repair, or replacement'' would not
apply to Subchapters 8, 9, and 10.\3\ However, EPA interprets ARM
17.8.743 (Montana Air Quality Permits--When Required) as requiring all
Montana sources (both major and minor) to comply with the requirements
in Subchapter 7, and that major sources would also comply with the
requirements in Subchapters 8, 9, or 10 as applicable. Therefore, major
sources and the public may believe the definition of RMRR in Subchapter
7 is applicable to the major sources since there is nothing in
subchapters 8, 9, or 10 prohibiting a major source from using this
definition.
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    \2\ See October 9, 2002 letter from Richard R. Long, EPA, to the
Montana Board of Environmental Review--all future references in this
notice to EPA's comments during the State rulemaking process refer
to this letter.
    \3\ See Public Hearing Notice and Final Notices on amendments of
air quality rules letter dated December 26, 2002 included as part of
the May 28, 2003 submittal--all future references in this notice to
the State's response to EPA's comments refer to this letter.
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    Montana's definition of RMRR allows associated fixed capital costs
less than 50% of the fixed capital cost necessary to construct a
comparable new emitting unit to be considered RMRR. Montana's
definition of RMRR is inconsistent with EPA's current policy concerning
RMRR at PSD sources. EPA's position is that a determination of routine
maintenance, repair, or replacement is a case specific process that
cannot be generally defined, and takes into consideration the nature,
extent, purpose, frequency and cost of the work, as well as any other
relevant factors.\4\ Furthermore, the State's rule is less stringent
than EPA's vacated Routine Equipment Replacement Provision rule for PSD
sources (68 FR 61248), which had specified that the capital cost
threshold for routine equipment replacement shall not exceed 20 percent
of the replacement value of the process (rule vacated by the Court of
Appeals for the D.C. Circuit, New York v. EPA, 443 F.3d 880
(D.C.Cir.2006).) Based on the above analysis, we have determined that
Montana's definition for RMRR at ARM 17.8.740(14) is inconsistent with
the Clean Air Act (CAA) and is not approvable.
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    \4\ See September 9, 1988 Memorandum from Don R. Clay, Acting
Assistant Administrator for Air and Radiation, to David A. Kee,
Director, Air and Radiation Division, Region V, titled
``Applicability of Prevention of Significant Deterioration (PSD) and
New Source Performance Standards (NSPS) Requirements to the
Wisconsin Power Company (WEPCO) Port Washington Life Extension
Project.''
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    b. ``Modify.'' We are not taking action on part of the definition
of ``modify.'' The new definition for ``modify'' at ARM 17.8.740(8)
refers to the ``Exclusion of De Minimis Changes'' provision codified at
ARM 17.8.745, which EPA is not taking action on (see discussion
regarding ARM 17.8.745 below). Since we are not taking action on ARM
17.8.745, we are proposing to approve ARM 17.8.740(8) with the
exception of the following phrases: (1) ``Except when a permit is not
required under ARM 17.8.745'' in ARM 17.8.740(8)(a); and (2) ``except
as provided in ARM 17.8.745'' in ARM 17.8.740(8)(c).
    c. ``Negligible risk to the public health, safety, and welfare and
to the environment.'' We are proposing to disapprove the definition of
``negligible risk to the public health, safety, and welfare and to the
environment'' in ARM 17.8.740(10) because, in a March 30, 2006 letter
to EPA, the State rescinded its May 28, 2003 request for provision ARM
17.8.770 (Additional Requirements for Incinerators) to be included in
the federally-approved SIP. ARM 17.8.770 is the only provision in
Subchapter 7 that utilizes this definition; and therefore, it is not
necessary for it to be incorporated into the SIP.
    Finally, during the State's rulemaking process we expressed
concerns with the definition of ``construct or construction'' in ARM
17.8.740(2). We were concerned because this definition includes the
phrase ``reasonable period of time for startup and shakedown.''
Subchapters 8, 9 and 10 contain their own definitions addressing
construction in ARM 17.8.801(5) and (10) and ARM 17.8.901(3) and (6)
for major source permitting; however, the addition of the phrase
``reasonable period of time for startup and shakedown'' makes the
definition of ``construct or construction'' in ARM 17.8.740(2)
inconsistent with the same term used in major source permitting. Since
this phrase also reduces the stringency of the current SIP approved
regulations, an analysis should be provided by the State showing that
this new rule will not interfere with compliance with the National
Ambient Air Quality Standards (NAAQS) or PSD increments. Section 110(l)
of the CAA states that EPA cannot approve a SIP revision that would
interfere with any applicable requirement concerning attainment or
reasonable further progress, as defined in Section 171 of the CAA, or
any other applicable requirement of the CAA. Montana did not provide
any analysis or demonstration that the definition of ``construct or
construction'' in ARM 17.8.740(2) meets these criteria. Therefore, we
are proposing to approve the definition of ``construct or
construction'' in ARM 17.8.740(2) with the exception of the phrase
``reasonable period of time for startup and shakedown.''
2. ARM 17.8.743 Montana Air Quality Permits--When Required
    On May 28, 2003, the State submitted new section ARM 17.8.743. ARM
17.8.743(1) describes those sources that are required to obtain a
Montana air quality permit and ARM 17.8.743(2)--(5) adds new provisions
pertaining to seasonal construction activities that can occur prior to
receiving a Montana air quality permit.
    ARM 17.8.743(1) provides that any new or modified facility or
emitting unit that has the potential to emit more than 25 tons per year
of any airborne pollutant, except lead,\5\ must obtain a Montana air
quality permit except as provided in ARM 17.8.744 and ARM 17.8.745
before constructing, installing, modifying or operating. ARM
17.8.431(1)(b) also requires asphalt concrete plants, mineral crushers,
and mineral screens that have the potential to emit more than 15 tons
per year of any airborne pollutant, other than lead, to obtain a
Montana air quality permit. Sources excluded from the above
requirements are those that are

identified in ARM 17.8.744 and ARM 17.8.745.
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    \5\ Facilities or emitting units that emit airborne lead must
obtain a Montana air quality permit if they are new and emit greater
than five tons per year of airborne lead, or if they are an existing
facility or emitting unit and a modification results in an increase
of airborne lead by an amount greater than 0.6 tons per year.
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    ARM 17.8.743(l) is similar to what was previously required in
sections ARM 17.8.705(1)(l), (m), (n), and (o). ARM 17.8.705, which was
repealed with the May 28, 2003 submittal, identified those sources that
were not required to obtain a permit. ARM 17.8.705(1) listed those
sources that were not required to obtain a permit and included: (l)
Sources and stacks which do not have the potential to emit more than 25
tons per years, other than lead; (m) a new stack or source of airborne
lead whose potential to emit is less than 5 tons per year; (n) an
alteration or modification of an already constructed stack or other
source of lead contamination which results in an increase in maximum
potential of the source or stack to emit airborne lead by an amount
less than 0.6 tons per year; and (o) asphalt concrete plants and
mineral crushers which do not have the potential to emit more than 5
tons per year of any pollutant, other than lead.
    For the most part, the provisions that were in ARM 17.8.705(1)(l),
(m), (n) and (o) are contained in the ARM 17.8.743(1), except that the
permitting threshold for asphalt concrete plants and mineral crushers
has been changed from 5 tons per year to 15 tons per year. During the
State's rulemaking process we expressed concerns with the new permit
threshold for asphalt concrete plants and mineral crushers. In its
response to our comments, the State indicated that it was making the
permit level for this source category consistent with other permitting
thresholds in the subchapter. Also, the State indicated that for
mineral screen operations the rule was more stringent since previously
only mineral screens greater than 25 tons per year had to get permits.
    Since for asphalt concrete plants and mineral crushers this
revision (ARM 17.8.743(1)(b)) reduces the stringency of the current SIP
approved regulations, an analysis should be provided by the State
showing that this new rule will not interfere with compliance with the
NAAQS or PSD increments. Section 110(l) of the CAA states that EPA
cannot approve a SIP revision that would interfere with any applicable
requirement concerning attainment or reasonable further progress, as
defined in Section 171 of the CAA, or any other applicable requirement
of the CAA. Montana did not provide any analysis or demonstration that
the increased permit threshold, from 5 tons per year to 15 tons per
year, for asphalt concrete plants and mineral crushers meets these
criteria. Montana plans on providing a 110(l) analysis at a later date.
At the request of the State, we are taking no action on the phrase
``asphalt concrete plants, mineral crushers'' from ARM 17.8.743(1)(b).
We are proposing to approve the remainder of ARM 17.8.743(1)(b), which
is ``mineral screens that have the potential to emit more than 15 tons
per year of any airborne pollutant, other than lead, that is regulated
under this chapter.''
    ARM 17.8.743(1) also refers to ARM 17.8.745. As indicated below, we
are taking no action on ARM 17.8.745. Consequently, we are taking no
action on the phrase ``and 17.8.745'' that is contained in ARM
17.8.743(1).
    As part of the October 16, 2006 submittal, Montana requested to
withdraw the request to include ARM 17.8.743(1)(c) into the SIP as part
of the May 28, 2003 submission. This provision requires any incinerator
to obtain a Montana air quality permit. This incinerator specific
provision is not in the currently approved SIP. The approved SIP treats
incinerator sources under the provision for ``all other sources and
stacks not specifically excluded, which do not have the potential to
emit more than 25 tons per year of any pollutant, other than lead''
(codified at ARM 17.8.743(e)). We also note that any incinerators in
Montana that are not permitted must meet the SIP approved provisions in
ARM 17.8.316. Therefore, we are taking no action on ARM 17.8.743(1)(c)
and this section will not be incorporated into Montana's SIP. In
addition, the October 16, 2006 submittal requested a revision to ARM
17.8.743(1) to add a reference to a new rule codified at ARM 17.8.1602.
This revision and the new rule pertain to the regulation of oil and gas
well facilities, and we will address this revision request in a
separate action.
    With the exceptions noted above, we are proposing to approve the
remaining language in ARM 17.8.743(1).
    During the State's rulemaking process we expressed concerns with
the provisions in ARM 17.8.743(2)-(5). However, after further analysis
and for the reasons stated below, we are proposing to approve ARM
17.8.743(2)-(5). These provisions allow only limited site preparation
and construction, can be stopped by the State at any time, require a
permit application completeness determination from the State before
this type of work can occur, and exclude sources subject to Federal
requirements (i.e., PSD and synthetic minors). EPA's regulations at 40
CFR 51.160 do not require the issuance of a permit for the construction
or modification of minor sources, but only that the SIP include a
procedure to prevent the construction of a source or modification that
would violate the SIP control strategy or interfere with attainment or
maintenance of the NAAQS. Provision (2) of the State's regulation
limits site work prior to permit issuance to only installing concrete
foundation work, below-ground plumbing, installing ductwork, and other
infrastructure and/or excavation work involving the same. No
construction or installation of emission units will be allowed under
this provision. Provision (3) indicates that ``Notwithstanding the
ability to undertake the construction activities described above, the
department may issue a letter instructing the owner or operator to
immediately cease such activities pending a final determination on an
application if it finds that the proposed project would result in a
violation of the State Implementation Plan or would interfere with the
attainment or maintenance of any Federal or State ambient air quality
standard.'' Provision (4) indicates that the State is not obligated to
issue an air quality permit and that an ``owner or operator who has
received a completeness determination and who elects to engage in
initial construction activities accepts the regulatory risks of
engaging in such activities.'' Provision (5) indicates that ``the
provisions of (2) do not supersede any other local, state, or federal
requirements.'' The State has interpreted ARM 17.8.743(5), in its
formal response to EPA's comments, to mean that ARM 17.8.743(2) ``does
not allow pre-permit construction if some other permit or rule
prohibits such activities. For example, if a source needs a Prevention
of Significant Deterioration (PSD) permit, both federalFederal and
stateState regulations require that the applicant secure the permit
before undertaking any construction.'' The State's formal response to
comments on this provision also stated that ``nothing in this rule
would supersede these existing restrictions in other rules. The
applicant would only be able to undertake limited pre-permit
construction if it did not need a PSD permit as well.''
    EPA approved minor NSR programs in several States do not require
permits prior to construction, but instead require sources to submit a
notice and authorization for sources to begin construction after a
specified time if the permitting authority does not issue an order
preventing construction. However, all minor NSR projects above the
permitting thresholds (25 tons per year for new sources and 15 tons per
year for modifications (not approved into the SIP)) in Montana will
receive a permit.

These projects go through the required air quality impact analysis
before the project is approved. Additionally, all minor NSR permits go
through a public notice and comment period before being issued.
    EPA had commented to the State that we had concerns that ARM
17.8.743(2) does not require some type of administrative approval from
the State prior to allowing pre-permit construction activities. EPA did
not initially take into account the permit application completeness
determination from the Montana Department of Environment Quality (DEQ).
After reviewing the procedure for permit application completeness
determination, EPA has concluded that it is an administrative approval
which must be issued by the State prior to the start of pre-permit
construction activities, ensuring that sources that are subject to
Federal requirements (i.e., PSD and synthetic minors) do not begin any
construction prior to permit issuance. Also, the State clarified in its
response to EPA's comments that this pre-permit construction provision
is limited to true minor sources. A true minor source is not subject to
PSD requirements and is not subject to other Federal requirements.
    As part of our analysis of Montana's pre-permit construction
provision we also reviewed recent EPA actions approving pre-permit
construction rules into other State SIPs. EPA's July 10, 2006 (71 FR
38773) approval of Mississippi's minor source permit regulations
included a new provision entitled ``Optional Pre-Permit Construction,''
which allows construction to commence on certain non-major sources and
non-major modifications prior to receiving a final permit to construct,
provided certain conditions are met. EPA also approved pre-permit
construction rules for the State of Idaho's permit to construct
regulations, which were approved into the Idaho SIP on January 16, 2003
(68 FR 2217). Both of these State provisions allow complete
construction of the source, including the emission units, prior to
issuance of the permit. However, these provisions preclude any actual
operation of the new or modified source before issuance of the final
construction permit. EPA has approved these provisions because they
require the prior written approval of the State and have safeguards to
ensure that new major stationary sources and major modifications do not
commence construction prior to permit issuance. Montana's pre-permit
construction provision differs from these other States' rules in that
it allows only limited site preparation and construction, which does
not include the emission units, and does not require the prior written
approval of the State.
    As discussed above, Montana's ARM 17.8.743(2)-(5) is consistent
with the requirements of section 110(a)(2)(C) of the CAA and Federal
regulations found at 40 CFR 51.160 through 51.164, including 40 CFR
51.160(b), which requires States to have legally enforceable procedures
to prevent construction or modification of a source if it would violate
any SIP control strategies or interfere with attainment or maintenance
of the NAAQS. Furthermore, Montana's rule is consistent with 40 CFR
51.160(e), which requires States to identify the basis for determining
which facilities will be subject to review. Sources in Montana subject
to ARM 17.8.743 must have an air quality permit prior to construction
or modification of the emission units and prior to operation. Only
limited site preparation and construction, which does not include the
emission units, would be allowed at minor sources prior to issuance of
an air quality permit. A permit application completeness determination
from the Montana Department of Environmental Quality (Department) must
be made before this type of work can occur. Additionally, the
Department can require the owner or operator to immediately cease any
pre-permit construction activities if it finds that the proposed
project would result in a violation of the SIP or would interfere with
the attainment or maintenance of any Federal or State ambient air
quality standard. Finally, this proposal is consistent with prior EPA
statements.\6\ Therefore, we are proposing approval for ARM
17.8.743(2)-(5).
---------------------------------------------------------------------------

    \6\ NEPA's October 10, 1978, memorandum from Edward E. Reich,
Director Division of Stationary Source Enforcement, to Thomas W.
Devine, Chief Air Branch, Region 1, titled ``Source Construction
Prior to Issuance of PSD Permit,'' discusses preconstruction
activities allowed at a site with both PSD and non-PSD sources. This
memo states that construction may begin on PSD-exempt projects
before the permit is issued.
---------------------------------------------------------------------------

3. ARM 17.8.744 Montana Air Quality Permits--General Exclusions
    On May 28, 2003, the State submitted new section ARM 17.8.744. This
section describes those sources that are not required to obtain a
Montana air quality permit. This section is similar to what previously
existed in ARM 17.8.705(1), except that: (a) Several of the provisions
that were in ARM 17.8.705(1) were deleted or incorporated into ARM
17.8.743(1), and (b) two provisions were added (ARM 17.8.744(1)(f) and
(k)).
    During the State's rulemaking process we expressed concerns with
the provisions in ARM 17.8.744(1)(f). However, after further review, we
are proposing to approve all of ARM 17.8.744 including ARM
17.8.744(1)(f). ARM 17.8.744(1)(f) is acceptable since this exclusion
is limited to emergency equipment used only to alleviate adverse
effects on public health or facility safety. In addition, this
exclusion is limited to only minor sources, since ARM 17.8.818(1)
states that ``a major stationary source or major modification exempted
from the requirements of Subchapter 7 under ARM 17.8.744 or 17.8.745
shall, if applicable, still be required to obtain a Montana air quality
permit and comply with all applicable requirements of this
subchapter.'' Likewise, ARM 17.8.904(1) and 17.8.1004(1) both indicate
``a major stationary source or major modification exempted from the
requirements of Subchapter 7 under ARM 17.8.744 or 17.8.745 * * *,
shall, prior to construction, still be required to obtain a Montana air
quality permit* * *''
4. ARM 17.8.745 Montana Air Quality Permits--Exclusion for De Minimis
Changes
    On May 28, 2003, the State submitted new section ARM 17.8.745. This
section describes those situations where a source is not required to
obtain a Montana air quality permit under ARM 17.8.743 for de minimis
changes. With this provision, Montana has adopted a 15 tons per year
potential to emit increase as a de minimis limit for any pollutant
below which no permit is required for changes.
    During the State's rulemaking process we expressed concerns with
the de minimis level specified in this provision. Since this new
section (ARM 17.8.745) reduces the stringency of the current SIP
approved regulations, an analysis should be provided by the State
showing that this new rule will not interfere with compliance with the
NAAQS or PSD increments. Section 110(l) of the CAA states that EPA
cannot approve a SIP revision that would interfere with any applicable
requirement concerning attainment or reasonable further progress, as
defined in Section 171 of the CAA, or any other applicable requirement
of the CAA. Montana did not provide any analysis or demonstration that
the new section (ARM 17.8.745) meets these criteria. Montana plans on
providing a 110(l) analysis at a later date, as well as a revision to
its 15 tons per year de minimus limit. At the request of the State, we
are taking no action on

Montana's de minimis provision in ARM 17.8.745.
5. ARM 17.8.748 New or Modified Emitting Units--Permit Application
Requirements
    On May 28, 2003, the State submitted new section ARM 17.8.748. This
section describes the permit application requirements and for the most
part is the same as what previously existed in ARM 17.8.706 with some
minor changes. The last sentence contained in ARM 17.8.748(1) was
originally contained in ARM 17.8.707(1)(b) and ARM 17.8.748(7) was
originally contained in ARM 17.8.720(2)(a).
    We are proposing to approve all of ARM 17.8.748.
6. ARM 17.8.749 Conditions for Issuance or Denial of Permit
    On May 28, 2003, the State submitted new section ARM 17.8.749. This
section describes the conditions for issuance or denial of a Montana
air quality permit. The provisions in ARM 17.8.749(1), (3), (4), and
(7) are similar to what previously existed in ARM 17.8.710(1), (2),
(4), and ARM 17.7.730. The provisions in ARM 17.8.749(2), (5) and (6)
are new provisions.
    On March 9, 2004, the State submitted revisions to ARM 17.8.749(7)
pertaining to how the Department notifies an applicant when it denies a
permit and advises the applicant of the right to appeal. The revisions
allow the Department to provide such notice through the mail.
    During the State's rulemaking process, we expressed concerns with
provisions ARM 17.8.749(2)--that allow the department to extend the
deadlines specified in a permit and ARM 17.8.749(5)--that requires
``state-only'' conditions be identified in the permit, and specifies
these conditions ``are not intended by the department to be enforceable
under federal law.'' For ARM 17.8.749(2) we were concerned that
extended deadlines may conflict with requirements for sources subject
to PSD. In response to our concerns, the State indicated that the
provisions of their PSD rules (ARM 17.8.819) meet the requirements of
40 CFR 52.21(r) and 51.166(j)(4). After further analysis we are have
determined that ARM 17.8.749(2) allows a director's discretion, in that
it states that ``the department may extend a deadline specified in the
schedule'' for permit conditions to become effective. Based on this
director's discretion we are proposing to disapprove ARM 17.8.749(2).
    For ARM 17.8.749(5) we asked for a justification as to why certain
permit provisions would not warrant Federal (and citizen) review and
enforceability. In response to our concerns, the State noted that they
``have adopted certain requirements that are more stringent than
Federal requirements,'' ``these rules are not intended to be part of
the SIP,'' and ``during the permitting process, EPA and other concerned
persons will have the opportunity to ensure that the Department
correctly applies the state-only designation.'' After further analysis
we have determined that ARM 17.8.749(5) will be used to identify State-
only provisions in permits that are more stringent than Federal
requirements. Therefore, we are proposing to approve ARM 17.8.749(5).
    We are proposing to approve ARM 17.8.749(1), (3), (4), (5), (6) and
(8) submitted on May 28, 2003; and ARM 17.8.749(7) submitted on March
9, 2004.
7. ARM 17.8.752 Emission Control Requirements
    On May 28, 2003, the State submitted new section ARM 17.8.752. This
section describes the emission control requirements for a new or
modified facility or emission unit. The provisions in ARM 17.8.752 are
similar to what previously existed in ARM 17.8.715, except that the
provisions in ARM 17.8.752(1)(a)(i) are new. This new provision states
that Montana's minor source Best Available Control Technology (BACT)
requirement is only triggered for the modified unit at an existing
source (not the entire source). Federal NSR regulations do not require
BACT for minor sources. Therefore, we are proposing to approve all of
ARM 17.8.752.
8. ARM 17.8.755 Inspection of Permit
    On May 28, 2003, the State submitted new section ARM 17.8.755. This
section indicates that the current Montana air quality permit must be
made available at the facility or emitting unit unless the permittee
and Department agree on a different location. This section is similar
to what previously existed in ARM 17.8.716, except that a new phrase
was added indicating that a different location may be acceptable if
mutually agreeable between the permittee and department.
    We are proposing to approve ARM 17.8.755.
9. ARM 17.8.756 Compliance With Other Requirements
    On May 28, 2003, the State submitted new section ARM 17.8.756. This
section describes the permittee responsibilities in complying with
other requirements. ARM 17.8.756(1) is similar to what previously
existed in ARM 17.8.717, and ARM 17.8.756(2) and (3) is similar to what
previously existed in ARM 17.8.710(6) and (3), respectively.
    We are proposing to approve ARM 17.8.756.
10. ARM 17.8.759 Review of Permit Applications
    On May 28, 2003, the State submitted new section ARM 17.8.759. This
section describes the Department's responsibilities for determining
completeness of the permit application, for issuing a preliminary
completeness determination, for public notification and providing the
opportunity for comment, and for issuing a final decision. Most of this
new section is similar to what previously existed in ARM 17.8.720(2)
and (3).
    During the State's rulemaking process we expressed concerns with
the timeframe allowed for the public and EPA to comment on preliminary
permit determinations. On March 9, 2004, the State submitted revisions
to ARM 17.8.759(4). The revisions extend the date by which comments can
be submitted on the preliminary determination for certain permit
actions and the timeline for the department to notify the applicant of
approval or denial of the application. On October 16, 2006, the State
submitted additional revisions to ARM 17.8.759(4), added a new
17.8.759(5), and renumbered the existing paragraph 17.8.759(5) to (6).
The new 17.8.759(5) specifies, in part, that ``the department may, on
its own action, or at the request of the applicant or member of the
public, extend by 15 days the period within which public comments may
be submitted as described in (4)(b)(ii) and the date for issuing a
final decision on a permit application.'' After further analysis, we no
longer have concerns with this provision because the Department now has
an opportunity to extend by 15 days the period in which public comments
may be submitted either on its own, or at the request of an external
party. This would minimize the time crunch for reviewing draft permits.
    We are proposing to approve ARM 17.8.759(1) through (3), submitted
on May 28, 2003; and ARM 17.8.759(4), (5), and (6) submitted on October
16, 2006.
11. ARM 17.8.760 Additional Review of Permit Applications
    On May 28, 2003, the State submitted new section ARM 17.8.760. This
section describes additional review requirements for applications
subject to the Montana Environmental Policy Act and the Major Facility
Siting Act. This section is similar to what previously existed in ARM
17.8.720(1) and (4).

    We are proposing to approve ARM 17.8.760.
12. ARM 17.8.762 Duration of Permit
    On May 28, 2003, that State submitted new section ARM 17.8.762.
This section describes the conditions that affect the duration of a
permit. This section is similar to what previously existed in ARM
17.8.731. Provision ARM 17.8.762(2) specifies that a permit will expire
unless construction or installation is commenced within the time
specified in the permit, which may not be less than one year or more
than three years after the permit is issued. The current SIP-approved
provision in ARM 17.8.731 does not specify a maximum time period for
permit expiration.
    During the State's rulemaking process, we expressed concerns with
the permit expiration timelines in ARM 17.8.762(2). We were concerned
that extended deadlines may conflict with requirements for sources
subject to PSD. In response to our concerns, the State indicated that a
provision in their PSD rules (ARM 17.8.819) met the requirements of 40
CFR 52.21(r)(2) and 51.166(j)(4). The State further indicated that this
rule ``will not replace the PSD requirements for PSD sources (i.e., the
18-month limit applies to PSD sources, but not to non-PSD sources).''
Despite the State's assertion, we note that ARM 17.8.819 does not meet
the Federal PSD requirements of 40 CFR 52.21(r)(2), which specifies
that ``approval to construct shall become invalid if construction is
not commenced within 18 months after receipt of such approval.'' 40 CFR
52.21 specifies the PSD requirements for areas that are not covered by
a federally approved PSD SIP.
    However, the PSD requirements for SIP-approved States, such as
Montana, contained in 40 CFR 51.166 do not have an ``18-month''
provision analogous to 40 CFR 52.21(r)(2). ARM 17.8.819 is consistent
with the ``18-month phased construction project'' provision in
51.166(j)(4). Therefore, ARM 17.8.762(2) is consistent with the Federal
PSD rules for SIP-approved States. We are proposing to approve ARM
17.8.762.
13. ARM 17.8.763 Revocation of Permit
    On May 28, 2003, the State submitted new section ARM 17.8.763. This
section describes the reasons why the Department may revoke a Montana
air quality permit, the process the Department must follow when
revoking a permit, and the ability of the permittee to request a
hearing before the Board. This section is similar to what previously
existed in ARM 17.8.732.
    During the State's rulemaking process, we expressed concerns with
the provisions in ARM 17.8.763(1) in that applicable provisions or the
permit (e.g., major source requirements) may be inadvertently revoked
at the request of the permittee. In response to our concerns, the State
indicated that while some portions of a permit may be revoked, the
permit as a whole must still meet any underlying applicable
regulations. After further analysis, we no longer have concerns with
these provisions because the State does not intend to revoke any
applicable regulations, only minor administrative changes.
    On March 9, 2004, the State submitted revisions to ARM 17.8.763(2)
and (3) pertaining to how the Department notifies an applicant when it
revokes a permit or a portion of a permit. The revisions allow the
Department to provide such notice through the mail.
    We are proposing to approve ARM 17.8.763 (1) and (4), submitted on
May 28, 2003; and ARM 17.8.763(2) and (3), submitted on March 9, 2004.
14. ARM 17.8.764 Administrative Amendment to Permit
    On May 28, 2003, the State submitted new section AMR 17.8.764. This
section describes how the Department may make administrative amendments
to a Montana air quality permit, the process the Department must follow
when making administrative amendments to a permit, and the ability of
the permittee to request a hearing before the Board of. This section is
similar to what previously existed in ARM 17.8.733, except that ARM
17.8.764(1)(c) is a new provision.
    On March 9, 2004, the State submitted revisions to ARM 17.8.764(2)
and (3) pertaining to how the Department notifies an applicant when it
proposes administrative amendments to a permit. The revisions allow the
Department to provide such notice through the mail.
    During the State's rulemaking process we raised concerns that some
administrative amendments should receive public review even though
there might not be an increase in emissions. In response to our
concerns, the State indicated that the current SIP-approved rule
contains the same provision. After further analysis, we have determined
that new section ARM 17.8.764 is consistent with the existing SIP-
approved ARM 17.8.733.
    We are proposing to approve ARM 17.8.764(1) (except as noted below)
and (4), submitted on May 28, 2003; and ARM 17.8.764(2) and (3)
submitted on March 9, 2004. As indicated earlier, we are taking no
action on ARM 17.8.745. Consequently, we are taking no action on the
phrase ``the emission increase meets the criteria in ARM 17.8.745 for a
de minimis change not requiring a permit,'' that is contained in ARM
17.8.764(1)(b).
15. ARM 17.8.765 Transfer of Permit
    On May 28, 2003, the State submitted new section ARM 17.8.765. This
section describes the requirements for transferring a Montana air
quality permit from one location to another, and from one owner or
operator to another. This section is similar to what previously existed
in ARM 17.8.734, except that ARM 17.8.765(3) revises what was in ARM
17.8.734(3). The main difference is that the prior rule required action
by the Department to approve or disapprove the permit transfer and the
new rule indicates that the transfer is deemed approved if the
Department does not act within 30 days of receipt of the notice.
    During the State's rulemaking process we expressed concerns with
the provisions in ARM 17.8.765(3) in that a source may inappropriately
locate in an area and jeopardize attainment of the NAAQS and the permit
transfer would be deemed approved if the Department does not act within
30 days. In its response to our concerns, the State indicated that
permits for portable sources are written in such a manner as to comply
with applicable requirements regardless of location of the source.
Consequently, we are proposing to approve all of ARM 17.8.765.
16. ARM 17.8.767 Incorporation by Reference
    On May 28, 2003, the State submitted new section ARM 17.8.767. This
section adopts and incorporates by reference various documents and
indicates where these documents are available. This section is similar
to what previously existed in ARM 17.8.702.
    On October 25, 2005, the State submitted revisions to ARM 17.8.767.
This revision deletes the incorporation by reference (IBR) of 40 CFR
52.21 (Prevention of significant deterioration of air quality) in ARM
17.8.767(1)(d) and modifies the addresses where various documents can
be obtained in ARM 17.8.767(2), (3) and (4). 40 CFR 52.21 specifies the
PSD requirements for areas that are not covered by a federally approved
PSD SIP. Since Subchapter 7 contains the requirements for the
permitting, construction, and operation of all air contaminant sources
and not just PSD sources, this IBR of 40 CFR 52.21 is not necessary.
Subchapter 8

contains Montana's SIP approved PSD rules.
    We are proposing to approve ARM 17.8.767(1)(a) through (c),
submitted on May 28, 2003; and ARM 17.8.767(1)(d) through (g) and
17.8.767(2), (3) and (4) submitted on October 25, 2005.
17. ARM 17.8.770 Additional Requirements for Incinerators
    On May 28, 2003, the State submitted new section ARM 17.8.770. This
section discusses additional requirements an incineration facility must
meet for a Montana air quality permit. In the prior codification of
Subchapter 7, this section had not been incorporated into the SIP. On
March 30, 2006, the Department requested to withdraw the request to
include ARM 17.8.770 into the SIP as part of the May 28, 2003
submission. Consequently, we are taking no action on ARM 17.8.770, and
this section will not be incorporated into Montana's SIP.

C. Revisions to Other Subchapters

    On May 28, 2003, the State submitted revisions to other subchapters
of the ARM. Because the State repealed, in Subchapter 7, various rules
and added new rules in their place, the cross-references in other
subchapters are being revised. In addition, the previous Subchapter 7
referred to ``air quality preconstruction permits'' whereas the new
Subchapter 7 refers to ``Montana air quality permits.'' In other
subchapters, the phrase ``air quality preconstruction permits'' is
being replaced with ``Montana air quality permits.'' Finally, new rules
are being added and minor administrative changes are occurring in other
subchapters.
    EPA is proposing to approve revisions to the following sections
submitted on May 28, 2003: ARM 17.8.101(4); 7.8.110(7), (8), and (9);
17.8.818(1); 17.8.825(3); 17.8.826(1) and (2); 17.8.904(1) and (2);
17.8.905(1) and (4); 17.8.906; 17.8.1004; 17.8.1005(1), (2), and (5);
17.8.1106; and 17.8.1109.
    On May 28, 2003, the State submitted revisions to ARM
17.8.309(5)(b) and 17.8.310(3)(e). We previously disapproved the
provisions in ARM 17.8.309(5)(b) and 17.8.310(3)(e) on January 24, 2006
(see 40 CFR 52.1384(a)). Therefore, we are proposing to not act on the
revisions to these same sections submitted on May 28, 2003.
    On May 28, 2003, the State submitted revisions to ARM 17.8.316(6).
This rule pertains to the regulation of incinerators and we will
address this revision in a separate action with other revisions to ARM
17.8.316 submitted previously.
    We have previously approved changes to ARM 17.8.901(14) that
incorporate the changes to ARM 17.8.901(14)(e)(iii) submitted on May
28, 2003 (see January 24, 2006 (71 FR 3776) action). Since we have
already approved these revisions into the SIP we are not taking action
on them in this document.
    On October 16, 2006, the State submitted a revision to ARM
17.8.743(1) and new rules codified at ARM 17.8.1601, 17.8.1602,
17.8.1603, 17.8.1604, 17.8.1605, and 17.8.1606. These rules pertain to
the regulation of oil and gas well facilities, and we will address this
revision request in a separate action.

IV. Summary of EPA's Proposed SIP Action

    We are proposing to approve the removal of the following provisions
from the federally- approved SIP: ARM 17.8.701, 17.8.702, 17.8.704,
17.8.705, 17.8.706, 17.8.707, 17.8.710, 17.8.715, 17.8.716, 17.8.717,
17.8.720, 17.8.730, 17.8.731, 17.8.732, 17.8.733, and 17.8.734.
    We are proposing to approve the following new Subchapter 7
provisions into the federally-approved SIP: ARM 17.8.740 (except
17.8.740(10) and (14) and the following phrases in 17.8.740(8)(a) and
(c), respectively, (1) ``except when a permit is not required under ARM
17.8.745;'' and (2) ``except as provided in ARM 17.8.745'' and the
phrase ``reasonable period of time for startup and shutdown'' in ARM
17.8.740(2)), submitted on May 28, 2003; 17.8.743 (except the phrases
``asphalt concrete plants, mineral crushers'' in 17.8.743(1)(b) ``and
17.8.745'' in 17.8.743(1), and 17.8.743(1)(c)), submitted on May 28,
2003; 17.8.744 and 17.8.748, submitted on May 28, 2003; 17.8.749(1),
(3), (4), (5), (6), and (8), submitted on May 28, 2003; 17.8.749(7),
submitted on March 9, 2004; 17.8.752, 17.8.755, and 17.8.756, submitted
on May 28, 2003; 17.8.759(1) through (3), submitted on May 28, 2003;
17.8.759(4) through (6), submitted on October 16, 2006; 17.8.760 and
17.8.762, submitted on May 28, 2003; 17.8.763(1) and (4), submitted on
May 28, 2003; 17.8.763(2) and (3), submitted on March 9, 2004;
17.8.764(1) (except the phrase ``the emission increase meets the
criteria in ARM 17.8.745 for a de minimis change not requiring a
permit'' in 17.8.764(1)(b)) and (4), submitted on May 28, 2003;
17.8.764(2) and (3), submitted on March 9, 2004; 17.8.765, submitted on
May 28, 2003; 17.8.767(1)(a) through (c), submitted on May 28, 2003;
and 17.8.767(1)(d) through (g), (2), (3), and (4), submitted on October
25, 2005.
    We are proposing to disapprove the following new Subchapter 7
provisions: ARM 17.8.749(2), ARM 17.8.740(10), 17.8.740(14); and
portions of 17.8.740(2).
    We are proposing to approve revisions to the following sections of
other subchapters submitted on May 28, 2003: ARM 17.8.101(4);
17.8.110(7), (8), and (9); 17.8.818(1); 17.8.825(3); 17.8.826(1) and
(2); 17.8.904(1) and (2); 17.8.905(1) and (4); 17.8.906; 17.8.1004;
17.8.1005(1), (2), and (5); 17.8.1106; and 17.8.1109.
    We are not acting, at the request of the State, on the following
provisions in Subchapter 7: ARM 17.8.743(1)(c) and ARM 17.8.770, the
phrase ``asphalt concrete plants, mineral crushers'' in ARM
17.8.743(1)(b) and ARM 17.8.745 submitted on May 28, 2003.
    We are not acting on the following provisions of other subchapters:
The following phrases in 17.8.740(8)(a) and (c), respectively, (1)
``except when a permit is not required under ARM 17.8.745'' and (2)
``except as provided in ARM 17.8.745,'' submitted on May 28, 2003; ARM
17.8.309(5)(b), 17.8.310(3)(e), 17.8.316(6), and 17.8.901(14)(3)(iii),
submitted on May 28, 2003; the phrase ``and 17.8.745'' in ARM
17.8.743(1), submitted on May 28, 2003; ARM 17.8.749(2) submitted on
May 28, 2003; and the phrase ``the emission increase meets the criteria
in ARM 17.8.745 for a de minimis change not requiring a permit,'' in
ARM 17.8.764(1)(b), submitted on May 28, 2003; and ARM 17.8.743(1),
17.8.1601, 17.8.1602, 17.8.1603, 17.8.1604, 17.8.1605, and 17.8.1606,
submitted on October 16, 2006.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this proposed action merely approves State law as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by State law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L.104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

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

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

    Dated: February 3, 2010.
Carol Rushin,
Acting Regional Administrator, Region 8.
[FR Doc. 2010-4559 Filed 3-3-10; 8:45 am]
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