Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action approving State Implementation Plan (SIP) revisions submitted by the Governor of Montana on June 26, 1997, and June 13, 2000. (Portions of the June 26, 1997 submittal were withdrawn by the Governor of Montana on February 8, 1999). These revisions contain an inventory of emissions for Whitefish and establish and require continuation of all control measures adopted and implemented for reductions of particulate aerodynamic diameter less than or equal to 10 micrometers (PM
This rule is effective on June 23, 2008 without further notice, unless EPA receives adverse comment by May 27, 2008. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA–R08–OAR–2007–0367, by one of the following methods:
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EPA's policy is that all comments received will be included in the public docket without change and may be made available online at
Laurel Dygowski, EPA Region 8, 1595 Wynkoop, Denver, CO 80202–1129, (303) 312–6144;
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The Whitefish area was designated nonattainment for PM
Our “General Preamble” describes our preliminary views on how we will
A State containing a moderate PM
The air quality planning requirements for PM
In nonattainment areas where monitored data demonstrate that the NAAQS have already been achieved, EPA has determined that certain requirements of part D, subparts 1 and 2 of the Act do not apply. Therefore we do not require certain submissions for an area that has attained the NAAQS. These include reasonable further progress (RFP) requirements, attainment demonstrations, RACM, and contingency measures, because these provisions have the purpose of helping achieve attainment of the NAAQS.
This interpretation of the CAA is known as the Clean Data Policy and is the subject of two EPA memoranda. EPA also finalized the statutory interpretation set forth in the policy in a final rule, 40 CFR 51.918, as part of its “Final Rule to Implement the 8-hour Ozone National Ambient Air Quality Standard—Phase 2” (Phase 2 Final Rule). See discussion in the preamble to the rule at 70 FR 71612, 71645–46 (November 29, 2005).
EPA believes that the legal bases set forth in detail in our Phase 2 Final rule, our May 10, 1995 memorandum from John S. Seitz, entitled “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” and our December 14, 2004 memorandum from Stephen D. Page entitled “Clean Data Policy for the Fine Particle National Ambient Air Quality Standards” are equally pertinent to the interpretation of provisions of subparts 1 and 4 applicable to PM
If an area meets the following requirements, the state will no longer be required to develop an attainment demonstration, contingency measures or a RFP demonstration. The area must meet the following requirements:
(a) The area must be attaining the PM
(b) The state must continue to operate an appropriate PM
(c) The control measures for the area, which were responsible for bringing the area into attainment, must be approved by EPA as meeting the CAA requirements for RACM/RACT.
(d) A PM
Whether an area has attained the PM
To use the PM
The Montana Department of Environmental Quality (MDEQ) shall continue to operate its PM
Monitoring in Whitefish for PM
Moderate PM
The State should identify available control measures to make sure they are reasonable and that they meet the area's attainment needs, (see 57 FR 13540–13544). A State may reject an available control measure if it is technologically infeasible or unreasonably expensive. In addition, RACM doesn't require controls on emissions from sources that are insignificant (de minimis) and doesn't require an area to use all available control measures if it demonstrates timely attainment and if using additional controls wouldn't expedite attainment.
The Whitefish PM
Rule 701 pertains to the types of sanding material that can be used for sanding roads and parking lots. This rule requires the application of sanding material with a material content passing a number 200 mesh screen to be no more than 4.0 percent oven dry weight and have a durability rating, as defined by the Montana Modified L.A. Abrasion test, of less than or equal to 9.0 percent wear loss.
The construction and demolition rule requires owners or operators of such activities to obtain a permit that describes the project and contains a dust control plan that constitutes RACT. RACT is the use of techniques to prevent the emission and/or airborne transport of dust and dirt from the site and includes the application of water or other liquid, limiting access to the site, securing loads, cleaning vehicles, and scheduling projects for optimum meteorological conditions.
Rule 703 and Rule 704 require a plan and schedule of implementation to improve existing unpaved roads and parking lots by paving, routine application of dust suppressants, or other reasonable control measures, as determined in a compliance plan that must be filed with the Flathead County Health Department. In addition, the paving regulations require new streets, roads, or alleys that are greater than fifty feet in length and have an average projected traffic volume greater than 200 vehicles per day be paved. The rule also requires that new parking lots greater than 5,000 square feet, or with a parking capacity greater than fifteen vehicles, or with a traffic volume of more than fifty vehicles per day be paved.
Rule 705 requires a prioritized street sweeping and flushing program that commences on the first working day after any streets become temporarily or permanently ice-free and temperatures are expected to remain above thirty-five degrees for a 24-hour period. Prioritized street sweeping and flushing applies during November through April. Streets with the highest traffic volume are cleaned first. During May through October, street sweeping and flushing occurs on an as needed basis.
The owner or operator of any land greater than 0.25 acre in size that has been cleared or excavated is required to use RACT to control dust emissions. In this case, RACT means techniques to prevent the emission or transport of dust and dirt from any disturbed or exposed land. RACT includes, but is not limited to, vegetative cover, synthetic cover, water or chemical stabilization, and installing wind breaks.
Rule 707 provides that in the event EPA provides notification to the State that the SIP for the Whitefish area failed to timely attain the PM
Section 172(c)(3) of the Act requires that nonattainment plan provisions include a comprehensive, accurate, current inventory of actual emissions from all sources of relevant pollutants in the nonattainment area. MDEQ submitted an emissions inventory for Whitefish on June 26, 1997, withdrew that inventory on February 28, 1999, and resubmitted it on June 13, 2000. MDEQ chose January 1, 1993 through December 31, 1993 as the base year for the emission inventory due to the occurrence of PM
EPA is proposing to approve the emission inventory for Whitefish because it is accurate and comprehensive, and consistent with the requirements of sections 172(c)(3) and 110(a)(2)(K) of the CAA. In addition to the above requirements for the use of the clean data areas approach, any requirements that depend solely on designation or classification, such as new source review (NSR) and RACM/RACT, will remain in effect. New source review requirements have been approved as part of the Administrative Rules of Montana, title 17, chapter 8, subchapters 8 and 9 and were approved as part of the SIP on August 13, 2001 (see 66 FR 42427). (Administrative and clerical changes have been made to the rule on January 24, 2006 (see 71 FR 3770 and 3776) and July 19, 2006 (see
However, the requirements under CAA section 172(c) for developing attainment demonstrations, RFP demonstrations, and contingency measures are waived due to the fact that the areas which are eligible under this approach have already attained the PM
EPA is approving State Implementation Plan (SIP) revisions submitted by the Governor of Montana on June 26, 1997 and June 13, 2000. The June 26, 1997 submittal revises the SIP by adding the Whitefish PM
EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the Proposed Rules section of today's
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
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 approves a state rule implementing a Federal standard.
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
The Congressional Review Act, 5 U.S.C. section 801
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 June 23, 2008. 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
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
40 CFR part 52 is amended to read as follows:
42 U.S.C. 7401 et seq.
(c) * * *
(66) On June 26, 1997, the Governor of Montana submitted the Whitefish OM
(i) Incorporation by reference.
(A) Sections 15.2.7, 15.12.8, and 15.12.10 of the Whitefish PM
(ii) Additional Material.
(A) Flathead County Air Pollution Control Program as of June 20, 1997.