[Federal Register: January 30, 2006 (Volume 71, Number 19)]
[Rules and Regulations]
[Page 4822-4829]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30ja06-10]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2006-0017; FRL-8026-1]
Disapproval of Air Quality Implementation Plans; Montana;
Maintenance of Air Pollution Control Equipment for Existing Aluminum
Plants
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is disapproving a State Implementation Plan revision
submitted by the State of Montana on January 16, 2003. If approved,
this revision would exempt existing aluminum plants from meeting
emission requirements during scheduled maintenance. This action is
being taken under section 110 of the Clean Air Act.
DATES: Effective Date: This final rule is effective March 1, 2006.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2006-0017. 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
[[Page 4823]]
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, (303) 312-6437,
ostrand.laurie@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. What Comments Were Received on EPA's Proposal and EPA's Reponse
III. Final Action
IV. 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 or initials CFAC mean or refer to the Columbia Falls
Aluminum Company.
(iii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
(iv) The initials SIP mean or refer to State Implementation Plan.
(v) The words state or Montana mean the State of Montana, unless
the context indicates otherwise.
I. Background
On January 16, 2003, the State of Montana submitted a new rule for
incorporation into the SIP. The rule is titled Administrative Rules of
Montana (ARM) 17.8.335, Maintenance of Air Pollution Control Equipment
for Existing Aluminum Plants.
The state adopted the rule for the purpose of modifying the
approved SIP. The rule covers maintenance of air pollution control
equipment for existing aluminum plants. There is currently one source
that is subject to this rule, the Columbia Falls Aluminum Company
(CFAC) in Columbia Falls, Montana. CFAC operates a primary aluminum
reduction plant. The plant is equipped with air pollution control
equipment, including ducts conveying exhaust to dry scrubbers. The
state and CFAC have indicated they believe that air pollution control
equipment requires periodic maintenance to keep it in good operating
order. The state and CFAC have also indicated that the failure to
maintain the air pollution control equipment eventually results in the
failure of the equipment. Finally, the state and CFAC have indicated
that the failure of the equipment would result in air pollution
emissions from the plant that exceed those allowed and may create an
unacceptable risk to public health.
Further, the state and CFAC indicated that the maintenance of the
air pollution control equipment requires the plant to shut down the dry
scrubbers and to bypass some of the dry scrubbers during the
maintenance event. If the plant continues to operate during the
shutdown of the dry scrubbers, the air pollution emissions from the
plant may exceed those allowed by rules governing emission of air
pollutants.
In the past the plant has applied to the state for, and in several
cases been granted, a variance from rules governing emission of air
pollutants so that the plant could conduct maintenance on the air
pollution control equipment while continuing to operate the plant. CFAC
expressed that the process for obtaining a variance is time consuming.
The state has adopted a rule that allows the plant to conduct
maintenance on air pollution control equipment while the plant is
operating, without requiring the plant to obtain a variance.
Our review of ARM 17.8.335, Maintenance of Air Pollution Control
Equipment for Existing Aluminum Plants, indicated that it is not
approvable and we proposed to disapprove Montana's SIP revision on
October 29, 2003 (68 FR 61650). Our October 29, 2003 notice describes
in detail the rationale for our proposed disapproval.
II. What Comments Were Received on EPA's Proposal and EPA's Response
We received three comments on our October 29, 2003 proposed action.
One commenter generally supported our proposed action and the other two
commenters opposed our proposed action.
(1) Comment: The commenter that supported our proposed action
indicated they ``* * * generally concur with EPA's stated reasons for
proposing to disapprove the Montana SIP rule change regarding
maintenance of air pollution control equipment at existing primary
aluminum reduction plants * * *'' The commenter also expressed an
interest in ultimately allowing the maintenance emissions under limited
circumstances when the result would be less impact to the airshed.
Response: Although we generally agree with the commenter, we think
provisions excusing the source from complying with the existing
requirements during maintenance should only be allowed if the state can
demonstrate that the national ambient air quality standards (NAAQS) and
prevention of significant deterioration (PSD) increments will be
protected, and other CAA requirements met, during periods of
maintenance at the facility. The primary purpose of the SIP is to
ensure attainment and section 110(l) of the CAA provides that EPA may
not approve a SIP revision that would interfere with attainment,
reasonable progress or any other applicable requirement of the Act.
(2) Comment: One commenter indicated that ``EPA proposes to
disapprove Montana's rule based, in part, on guidance. EPA contends
excess emissions should be treated as compliance violations based upon
provisions in EPA memoranda cited in footnotes to the proposed
rulemaking. However, guidance is not law and does not replace the
requirements of a rule or statute passed by a legally enabled body with
the opportunity for public scrutiny and comment.'' The commenter also
indicated that ``while guidance may be helpful in certain
circumstances, reliance on guidance as a method of `codifying'
internally-developed policy often creates confusion among the
regulated-community and the public because of the imperious and
arbitrary nature of guidance development. Furthermore, failure to
engage in rulemaking implies that notice-and-comment procedures are
impracticable, unnecessary, or contrary to the public interest.''
Response: EPA's reference to and reliance on the guidance documents
mentioned, which are publicly available and a part of the record for
this action, is not prohibited by the Clean Air Act or the
Administrative Procedure Act. EPA agrees that the guidance documents do
not establish enforceable and binding requirements; the guidance
documents do not purport to be anything but guidance. This is why EPA
has performed this rulemaking--a notice-and-comment rulemaking--to take
comment on its statutory interpretations and factual determinations in
order to make a binding and enforceable determination regarding the SIP
submittal (i.e., ARM 17.8.335, Maintenance of Air Pollution Control
Equipment for Existing Aluminum Plant). Our October 29, 2003 proposed
rule refers to EPA guidance not as binding the Agency to adopt the
interpretation of the CAA therein, but rather as a useful description
of the rationale underlying those interpretations. EPA has explained
the legal and factual basis for its rulemaking in the October 29, 2003
proposed rule and afforded the public a full
[[Page 4824]]
opportunity to comment on EPA's proposed interpretation and
determination. This action is consistent with the applicable procedural
requirements of the Administrative Procedure Act. In the final rule,
EPA is fully responding to any concerns with EPA's interpretations as
set forth in the guidance documents and relied on in the proposed rule.
Thus EPA has not treated the guidance as a binding rule.
(3) Comment: The commenter that indicated it was not appropriate to
rely on guidance for disapproving the rule further indicated that ``the
Department of Environmental Quality (Department) does not believe that
ARM 17.8.335 is inconsistent with the direction provided in the 1999
Herman/Perciasepe and 1988 Bennett memos. ARM 17.8.335 differs in
several respects from the generalized exemptions cited in the policy.''
First, the commenter indicated that ``EPA claims all instances of
excess emissions must be considered violations. ARM 17.8.335 does not
exempt the excess emissions from being considered a violation, it
merely prohibits the Department from initiating an enforcement action
for the violation.''
Second, the commenter indicated that ``the memos cited are not
entirely relevant since they address generalized exemptions for all
excess emissions, regardless of impact. ARM 17.8.335 is very specific.
It applies to a single source at a single facility. This means that the
impacts of the exemption were identified and modeled. The modeling
demonstrated the exemption would not violate the ambient standards.''
Third, the commenter indicated that ``EPA contends that ARM
17.8.335 is not acceptable, because it must contain emission standards
or limitations to protect ambient standards. Since ARM 17.8.335(1)(a)
contains an emission limitation as well as work practice standards,
Montana believes that ARM 17.8.335 is consistent with the policy in
this respect.''
Fourth, the commenter indicated that ``EPA also states they
disagree with Montana's contention that ARM 17.8.335 will not allow
violation of ambient standards or Prevention of Significant
Deterioration Increments. Since ARM 17.8.335(11) contains clear
language prohibiting violation of ambient standards, Montana stands by
its contention.''
Response: First, EPA's interpretation of the CAA, as reflected in
our guidance, is that excess emissions must be considered violations
because SIPs must provide for the attainment and maintenance of the
NAAQS and the achievement of the PSD increments. The commenter
indicated that the rule meets the guidance because the rule ``does not
exempt excess emissions from being considered a violation, it merely
prohibits the Department from initiating an enforcement action for the
violation.'' Without the threat of an enforcement action, the label of
``violation'' loses all meaning.
The state's proposed approach (i.e., prohibiting itself from
enforcing a violation) is inconsistent with section 110 of the CAA.
Section 110 requires the SIP to include enforceable emission
limitations, a program to provide for the enforcement of these emission
limitations, and assurances that the state has adequate authority under
state law to carry out the SIP (and is not prohibited by any provision
of state law from doing so). ARM 17.8.335 prohibits the state from
enforcing applicable emission limitations during source maintenance;
absent an adequate demonstration under section 110(l) of the CAA that
the higher emissions allowed in ARM 17.8.335 will not interfere with
the CAA requirements, the state must continue to allow for enforcement
action, but may exercise its enforcement discretion in determining
whether to pursue any particular violation of the SIP.
Second, the commenter indicated that the modeling demonstrated the
exemption would not violate ambient standards. As discussed in the
proposal we had concerns with the modeling and indicated that the
approach used would not assure protection of the NAAQS. We stand by
that statement in our proposal and therefore, do not agree with the
commenter that the modeling demonstrated that the exemption would not
violate ambient standards. Below, in comment/response 4, is
further discussion regarding the modeling. Additionally, the state did
not evaluate the impact of the excess emissions on the PSD increments.
Third, the commenter indicated that ARM 17.8.335 contains an
emission limitation as well as work practice standards that protect the
ambient standards. As indicated above, we do not agree that it has been
demonstrated that the ambient standards would be protected. Also, EPA
questions the enforceability of the ``emission limitation'' the
commenter refers to. Presumably the commenter is referring to ARM
17.8.335(1)(a)(ii), which indicates that the department may not
initiate an enforcement action for a violation of various rules, or any
emission standard, resulting from necessary scheduled maintenance of
air pollution control equipment at an existing primary aluminum
reduction plant, if, among other things, the maintenance event meets
the following conditions: ``the maintenance event will not cause
uncontrolled PM-10 emissions to exceed normal operating emissions from
the reduction cells by more than 700 lbs. per 24-hour period as
estimated using emissions factors.'' The rule does not establish or
define ``normal operating emissions from the reduction cells.'' Without
establishing or defining ``normal operating emissions from the
reduction cells'' we question how the department could ever enforce the
requirements in ARM 17.8.335(1)(a)(ii). Also, we question if the
necessary scheduled maintenance could occur at other emission points
that would not affect the level of emissions from the reduction cells
but would cause an increase in emissions elsewhere.
Fourth, the commenter indicated that ``since ARM 17.8.335(11)
contains clear language prohibiting violation of ambient standards,
Montana stands by its contention'' that the rule will assure protection
of the NAAQS or PSD increments. As we indicated in our proposal, we
believe ambient standards and the PSD increments are protected by
establishing limits that assure the standards and increments will be
met. ARM 17.8.335(11) indicates that nothing in the rule shall be
construed to allow an owner or operator to cause or contribute to
violations of any federal or state ambient air quality standards.\1\ We
do not believe such a generic provision ensures protection of the
NAAQS. At best, it simply means that if the ambient standards are
violated--jeopardizing the health of the community, the Department
could then bring an enforcement action. ARM 17.8.335(11) provides no
clear cut standard the source must meet to protect public health.
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\1\ We note that while ARM 18.8.335(11) discusses ``ambient
standards'' it does not specifically mention PSD increments. A
document in the state's submittal indicates that the reference to
``ambient standards'' includes both the NAAQS and PSD increments.
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In lieu of relying on monitors to assure the NAAQS are protected,
particularly when the monitoring network is sparse, EPA believes
enforceable emission limits should be established that, through
modeling, demonstrate that the NAAQS would be protected. As we
indicated earlier and below, we do not believe the modeling completed
for this SIP revision was adequate to demonstrate that the NAAQS would
be protected or that enforceable emission limits were adequately
established.
[[Page 4825]]
(4) Comment: Several comments were raised regarding EPA's concerns
about the rule's impact on the NAAQS. The comments pertained to whether
or not: (a) The impact of the rule in the nearby Columbia Falls PM-10
nonattainment area had been addressed adequately, (b) there was an
adequate demonstration that the NAAQS would be protected, and (c)
appropriate modeling techniques were used.
Comment A. Regarding EPA's concerns about the impact of the rule on
the Columbia Falls PM-10 nonattainment area, the commenter indicated
that ``EPA approved the Columbia Falls PM-10 control plan on April 14,
1994, at 59 FR 17700. This action included approval of the technical
support documents that demonstrate Columbia Falls Aluminum (CFAC) is an
insignificant source of emissions contributing to the nonattainment
area. Specifically, on January 27, 1994, at 59 FR 3804, EPA stated the
control plan demonstration would provide for attainment within the
prescribed time periods and would further maintain NAAQS compliance in
future years. Further analysis demonstrating this rule's impact on the
nonattainment area is unnecessary as a result of EPA's control plan
approval. Therefore, the burden lies with EPA to demonstrate that a
rule affecting a source, recognized in an approved control plan as an
insignificant contributor to the nonattainment area, would otherwise
interfere with an applicable requirement concerning attainment 42
U.S.C. 7410(l).''
Response A. The commenter is correct that EPA approved the Columbia
Falls PM-10 nonattainment area plan on April 14, 1994 (59 FR 17700).
The attainment demonstration for the plan was based on receptor
modeling (chemical mass balance (CMB)) and rollback modeling. However,
as noted on page 17702, in the middle column,
``[t]he State has made a separate commitment to testing and
further dispersion modeling of emissions from the Columbia Falls
Aluminum Company (CFAC) facility. This facility is located outside
the nonattainment area and emissions from CFAC were not identified
on the Chemical Mass Balance analysis of filters collected from the
monitor in the Columbia Falls nonattainment area. Emissions from
CFAC are a potential concern, however, since this source accounts
for 20 percent of the emission inventory (at permitted allowable
emissions). EPA will continue to monitor the testing and assist the
State with any action required by the results.''
The state's commitment was made in a May 6, 1992 letter from Governor
Stan Stephens.
The state developed a new PM-10 emissions inventory for CFAC but
did not complete the dispersion modeling. EPA completed the dispersion
modeling analyses using the new PM-10 emissions inventory for CFAC to
determine CFAC's impact in the nonattainment area. On September 19,
1996 the Montana Department of Environmental Quality (MDEQ) sent us the
actual and allowable PM-10 emissions for CFAC. EPA input this emission
information into the ISC3/Complex1 models to determine the effect on
the Columbia Falls PM-10 nonattainment area. The modeled 24-hour impact
at the Columbia Falls monitor was 24 [mu]g/m\3\ using allowable
emissions and 8 [mu]g/m\3\ using actual emissions. We also noted that
the highest modeled 24-hour concentrations of actual emissions at the
CFAC ambient PM-10 monitor (different from the Columbia Falls monitor)
was about 30 [mu]g/m\3\. This seemed to compare favorably with
measurements at that site when background concentrations were also
considered.
On July 1, 1997, the State submitted a maintenance plan and
redesignation request for the Columbia Falls PM-10 nonattainment area.
The July 1, 1997 submittal was later withdrawn on October 27, 1998.
However, the July 1, 1997 maintenance plan projected the ambient PM-10
24-hour concentrations in the Columbia Falls PM-10 nonattainment area
for the 2009 maintenance year to be 146.2 [mu]g/m\3\. The 24-hour PM-10
NAAQS is 150 [mu]g/m\3\. The 2009 maintenance year projection, however,
did not consider any emissions impact from CFAC. If we add the
dispersion modeled impact from CFAC using either allowable emissions
(24 [mu]g/m\3\ impact) or actual emissions (8 [mu]g/m\3\ impact) to the
maintenance year projections then the Columbia Falls PM-10
nonattainment area would be projected to exceed 150 [mu]g/m\3\ and not
attain the PM-10 NAAQS (i.e., 24 + 146.2 = 170.2 [mu]g/m\3\ and 8 +
146.2 = 154.2 [mu]g/m\3\). In addition, we note that the impact of the
``maintenance'' emissions (i.e., the additional 700 lbs of PM per 24-
hour period expected during maintenance) on the Columbia Falls PM-10
nonattainment area were not analyzed here.
The state believes CFAC is in a different airshed from the
nonattainment area and that emissions from CFAC do not have a
significant impact on the Columbia Falls PM-10 nonattainment area. CFAC
is only about one mile from the City of Columbia Falls. Existing
information (indicated above) supports a conclusion that emissions from
CFAC do affect the nonattainment area and thus further analyses would
need to be completed before it could be determined that maintenance
emissions from CFAC would not impair the ability of the Columbia Falls
PM-10 nonattainment area to attain and maintain the NAAQS.
We stand by our proposal that further analysis is needed to show
that CFAC does not interfere with the ability of the Columbia Falls
nonattainment area to attain and maintain the NAAQS.
Additionally, we note that we disagree with the commenter's
statement that it is EPA's burden to demonstrate that a SIP revision
would interfere with an applicable requirement concerning attainment.
In general, we believe the primary burden in supporting a SIP revision
rests with the state. Here we note that the available information
(EPA's modeling in conjunction with the state's withdrawn maintenance
plan) supports a conclusion that the SIP revision would interfere with
attainment and maintenance of the NAAQS and the state has failed to
submit any information to counter that conclusion.
Comment B. Regarding whether or not there was an adequate
demonstration that the NAAQS would be protected, the commenter
indicated that ``as stated in EPA's Notice of Proposed Disapproval, a
State Implementation Plan contains requirements necessary to protect
ambient air quality standards. The record of adoption of ARM 17.8.335
clearly demonstrates that ARM 17.8.335 continues to protect those
standards. Since EPA has not demonstrated that ARM 17.8.335 violates
any requirement of the Clean Air Act, EPA must approve this SIP
change.''
Response B. We do not believe the state's record of adoption
supports the conclusion that the rule will protect the ambient air
quality standards. The SIP must provide for attainment and maintenance
of the NAAQS and the protection of PSD increments. The state must
demonstrate that this SIP revision will not interfere with the state's
ability to attain and maintain the NAAQS (sections 110(a)(1) and 110(l)
of the Act). SIP provisions that allow for an automatic exemption for
excess emissions from start-up, shut-down, malfunction and maintenance
activities result in levels of emissions that are difficult to predict
and thus it is difficult to demonstrate the effect of these activities
on attainment or maintenance or the protection of the PSD increments.
Therefore, EPA generally prohibits such rules in SIPs. However, we
recognize that in limited circumstances a state may be able to
[[Page 4826]]
demonstrate periods of excess emissions will not interfere with these
requirements by showing that the CAA requirements are met during the
periods of excess emissions. CFAC conducted modeling to demonstrate
that excess emissions during the maintenance procedures would not cause
or contribute to violations of the Montana Ambient Air Quality
Standards (MAAQS) or NAAQS. We outlined our concerns with the modeling
in our proposed notice.\2\ The commenter did not present any new
technical information that has changed our mind regarding the adequacy
of the state's modeling to demonstrate that the CAA requirements are
met during periods of excess emissions.
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\2\ We indicated the state's modeling approach was inconsistent
with EPA's Guideline on Air Quality Models, 40 CFR part 51, Appendix
W for several reasons. As discussed in greater detail in the
proposed notice, allowable emissions, rather than normal operating
emissions, should be used in the modeling; nearby point sources that
cause a significant concentration gradient should also be included
in the modeling; and five years of National Weather Service
meteorology data is generally recommended to ensure that worst case
meteorological conditions are considered. Finally we were not
convinced that the 17 [mu]g/m\3\ value is an appropriate value to be
used for background concentrations.
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Comment C. Regarding whether or not appropriate modeling techniques
were used, the commenter indicated, ``EPA has applied the modeling
guidance for permit demonstrations to review the analysis conducted for
this rule adoption. The guidance, as quoted in this instance, is not
appropriate for use in this very special case. The Department used
professional judgment and local knowledge to determine the analytical
procedures and approval criteria for this rule analysis. The analytical
method used was within the discretion allowed to the State as a `SIP
Approved' state and EPA does not have the authority to require any
other, or additional, demonstrations. EPA has not provided any
additional comments on the modeling and the Department had already
addressed the previous comments through the notice of adoption of this
rule (MAR 17-160 pg. 2189-2194).''
Response C. The modeling guidance we referenced in our proposal is
contained in the Code of Federal Regulations (CFR) at 40 CFR part 51,
Appendix W and is titled ``Guideline on Air Quality Models''
(hereinafter called ``Guideline''). In our proposal we were pointing
out that the state had incorporated by reference our modeling guidance
in its permitting rules. However, just because the state has only
incorporated our modeling guidance in its permitting rules does not
mean the modeling guidance should not be used for other purposes.
Section 1(a) of Appendix W indicates ``[t]he Guideline recommends air
quality modeling techniques that should be applied to State
Implementation Plan (SIP) revisions for existing sources and to new
source reviews (NSR), including prevention of significant deterioration
(PSD). * * * Applicable only to criteria air pollutants, it is intended
for use by EPA Regional Offices in judging the adequacy of modeling
analyses performed by EPA, State and local agencies and by industry.
The guidance is appropriate for use by other Federal agencies and by
State agencies with air quality and land management responsibilities.
The Guideline serves to identify, for all interested parties, those
techniques and data bases EPA considers acceptable. The Guideline is
not intended to be a compendium of modeling techniques. Rather, it
should serve as a common measure of acceptable technical analysis when
supported by sound scientific judgment.''
The commenter indicated that the modeling guidance quoted in our
proposal is not appropriate for use in this very special case. We do
not agree. Since ARM 17.8.335 is allowing an increase in PM-10
emissions, and since there is a PM-10 NAAQS and a PM-10 nonattainment
area near the source, we think the modeling used to show that the NAAQS
will be protected should be the same level of modeling used to support
an attainment demonstration.
The commenter indicated that the Department used its professional
judgment and local knowledge to determine the analytical procedures and
approval criteria for this rule analysis and that the analytical method
used was within the discretion allowed to the state as a ``SIP
Approved'' state and EPA does not have the authority to require any
other, or additional, demonstration. We do not agree with this comment.
We do not know what the commenter is referring to when it indicates
that they have discretion because they are a ``SIP Approved'' state.
While we have approved various portions of the SIP for Montana, such
approval does not give Montana the discretion to ignore the Guidelines
in 40 CFR part 51, Appendix W in determining the type of modeling that
would support approval of SIP revisions. The CFR at 40 CFR 51.112(a)
indicates:
(a) Each plan must demonstrate that the measures, rules, and
regulations contained in it are adequate to provide for the timely
attainment and maintenance of the national standard that it
implements.
(1) The adequacy of a control strategy shall be demonstrated by
means of applicable air quality models, data bases, and other
requirements specified in appendix W of this part (Guideline on Air
Quality Models).
(2) Where an air quality model specified in appendix W of this
part (Guideline on Air Quality Models) is inappropriate, the model
may be modified or another model substituted. Such a modification or
substitution of a model may be made on a case-by-case basis or,
where appropriate, on a generic basis for a specific State program.
Written approval of the Administrator must be obtained for any
modification or substitution. In addition, use of a modified or
substituted model must be subject to notice and opportunity for
public comment under procedures set forth in Sec. 51.102.
Further, EPA has the authority to require other, or additional,
demonstrations. Section 110(a)(2)(K) of the Act indicates that:
[e]ach implementation plan submitted by a State under this Act
shall be adopted by the State after reasonable notice and public
hearing. Each such plan shall.* * * (K) provide for--(i) the
performance of such air quality modeling as the Administrator may
prescribe for the purpose of predicting the effect on ambient air
quality of any emissions of any air pollutant for which the
Administrator has established a national ambient air quality
standard * * *
Finally, the commenter indicated that EPA had not provided any
additional comments that the Department has not already responded to in
its rulemaking. On May 16, 2002 we submitted comments to the Board of
Environmental Review during the state's rulemaking process to adopt ARM
17.8.335. In our May 16, 2002 letter we expressed our concerns with the
modeling and the May 16, 2002 comments are similar to the concerns
expressed in our proposed rulemaking. The state responded to our
comments in its notice of adoption. We reviewed the notice of adoption
before we proposed our action on ARM 17.8.335. We do not believe the
state's response, in its notice of adoption, adequately addressed our
concerns and that is why the same concerns with the modeling were
detailed in the proposal notice. We continue to believe our concerns
with the modeling are valid.
Because of our concerns with the modeling and the potential impact
in the Columbia Falls nonattainment area, we believe the state has not
demonstrated that ARM 17.8.335, Maintenance of Air Pollution Control
Equipment for Existing Aluminum Plants will not interfere with any
applicable requirement concerning attainment and reasonable progress or
any other applicable requirement of the Act (sections 110(a)(1) and
110(l) of the Act).
[[Page 4827]]
5. Comment: The commenter indicated that ``EPA also states they do
not find the aluminum smelting process sufficiently unique to warrant
unique maintenance procedures. Montana's SIP submittal contained
testimony that aluminum smelters do not undergo regular plant-wide
maintenance shutdowns like other industries and that the emissions from
startup and shutdown would be significantly greater than that emitted
under the maintenance procedure allowed in ARM 17.8.335.''
Response: We agree that the SIP submittal did contain such
statements. The point in our proposal was that we spoke to the EPA
Region 10 office and found that the emission control system for most
primary aluminum plants in that Region have been designed in a modular
manner so that one or more components can be taken off-line for
maintenance without shutting down the whole system. Two vertical
Soderberg plants (similar in design to CFAC) in Region 10 have not
requested the type of exemption for maintenance provided for CFAC in
the SIP submission. Thus we are not convinced that the CFAC aluminum
process is so unique, or that control technology could not be modified
or added, to address scheduled maintenance.
6. Comment: Another commenter indicated that ``the rule was
developed to allow maintenance activities on the facility's air
pollution control system to occur in a manner that is most protective
of the environment * * * This rule is necessary and needed by CFAC in
order to perform maintenance activities that minimize malfunctions and
the resulting uncontrolled release of pollutants into the atmosphere.
This rule allows CFAC to reduce emissions through the performance of
maintenance activities that prevent unplanned air pollution control
system downtime that result in excess emissions.''
Response: Although EPA supports pollution control maintenance, for
the reasons discussed earlier, we cannot approve a rule that allows
increased emissions during maintenance activities unless it can be
adequately demonstrated that the rule will not interfere with the
state's ability to attain and maintain the NAAQS (section 110(a)(1) of
the Act) or any applicable requirement concerning attainment and
reasonable progress or any other applicable requirement of the Act
(section 110(l) of the Act). Rather than trying to balance which excess
emissions would be worse, malfunction or maintenance, perhaps the
facility could be redesigned so that maintenance could be completed on
portions of the control equipment without having to shut down the
control equipment. As we indicate in our response to comment (5) above,
we spoke to another EPA Regional office and found that the emission
control system for most primary aluminum plants in that Region have
been designed in a modular manner so that one or more components can be
taken off-line for maintenance without shutting down the whole system.
III. Final Action
We have carefully considered the comments received and still
believe we should disapprove the SIP revision. EPA is disapproving the
SIP revision submitted by the State of Montana on January 16, 2003,
which requested that ARM 17.8.335, Maintenance of Air Pollution Control
Equipment For Existing Aluminum Plants, be added to the SIP.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
B. Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must
approve all ``collections of information'' by EPA. The Act defines
``collection of information'' as a requirement for ``answers to * * *
identical reporting or recordkeeping requirements imposed on ten or
more persons * * *'' 44 U.S.C. 3502(3)(A). Because this final rule does
not impose an information collection burden, the Paperwork Reduction
Act does not apply.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
This rule will not have a significant impact on a substantial
number of small entities because EPA's final disapproval action only
affects one industrial source of air pollution; Columbia Falls Aluminum
Company. Only one source is impacted by this action. Furthermore, as
explained in this action, the submission does not meet the requirements
of the Clean Air Act and EPA cannot approve the submission. The final
disapproval will not affect any existing State requirements applicable
to the entity. Federal disapproval of a State submittal does not affect
its State enforceability. Therefore, because the Federal SIP
disapproval does not create any new requirements nor impact a
substantial number of small entities, I certify that this action will
not have a significant economic impact on a substantial number of small
entities.
Moreover, due to the nature of the Federal-State relationship under
the Clean Air Act, preparation of flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);
42 U.S.C. 7410(a)(2).
D. Unfunded Mandates Reform Act
Under sections 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the disapproval action does not include a
Federal mandate that may result in estimated costs of $100 million or
more to either State, local, or tribal governments in the aggregate, or
to the private sector. This Federal action determines that pre-existing
requirements under State or local law should not be approved as part of
the federally-approved SIP. It imposes no new requirements.
Accordingly, no additional costs to State, local, or tribal
governments, or to the private sector, result from this action.
E. Executive Order 13132, Federalism
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental
[[Page 4828]]
Partnership). Executive Order 13132 requires EPA to develop an
accountable process to ensure ``meaningful and timely input by State
and local officials in the development of regulatory policies that have
federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that 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.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
This rule 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, as specified in Executive Order 13132, because it
merely disapproves 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. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
F. Executive Order 13175, Coordination With Indian Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175. It will not
have substantial direct effects on tribal governments, 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. This action does not involve or impose
any requirements that affect Indian Tribes. Thus, Executive Order 13175
does not apply to this rule.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not
economically significant as defined in Executive Order 12866.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.
J. Congressional Review Act
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. Section 804, however, exempts from section 801 the
following types of rules: rules of particular applicability; rules
relating to agency management or personnel; and rules of agency
organization, procedure, or practice that do not substantially affect
the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA
is not required to submit a rule report regarding this action under
section 801 because this is a rule of particular applicability.
K. Petitions for Judicial Review
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 March 31, 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,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Dated: January 19, 2006.
Robert E. Roberts,
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. In Section 52.1384, add paragraph (f) to read as follows:
Sec. 52.1384 Emission control regulations.
* * * * *
(f) Administrative Rules of Montana 17.8.335 of the State's rule
entitled ``Maintenance of Air Pollution Control Equipment for Existing
Aluminum Plants,'' submitted by the Governor on January 16, 2003, is
disapproved. We cannot approve this rule into the SIP
[[Page 4829]]
because it is inconsistent with the Act (e.g., sections 110(a) and
110(l)), prior rulemakings and our guidance.
[FR Doc. 06-789 Filed 1-27-06; 8:45 am]
BILLING CODE 6560-50-P