[Federal Register Volume 87, Number 28 (Thursday, February 10, 2022)]
[Rules and Regulations]
[Pages 7725-7728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02737]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2016-0477; FRL-9543-01-R8]


Air Plan Approval; Montana; Administrative Rule Revisions: 
17.8.334

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is taking 
final action to approve a revision to Montana's State Implementation 
Plan (SIP). On July 6, 2016, the Governor of Montana submitted to EPA a 
revision to the Montana SIP that removed one section of the 
Administrative Rules of Montana (ARM) pertaining to aluminum plants. In 
this document, EPA is finalizing approval of the removal of this 
section from the SIP. EPA determined the provision was inconsistent 
with Clean Air Act (CAA) requirements and EPA issued a SIP call for the 
State to revise the provision on June 12, 2015. Removal of this 
provision corrects the deficiencies identified in 2015 related to the 
treatment of excess emissions from aluminum plants and fully satisfies 
the SIP call issued to Montana.

DATES: This rule is effective on March 14, 2022.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2016-0477. All documents in the docket are listed on 
the https://www.regulations.gov website. 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 through 
https://www.regulations.gov, or please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, Air and Radiation 
Division, EPA, Region 8, Mail Code 8ARD-IO, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, telephone number: (303) 312-6728, email 
address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On February 22, 2013, EPA issued a Federal Register notice of 
proposed rulemaking outlining EPA's policy at the time with respect to 
SIP provisions related to periods of startup, shutdown, or malfunction 
(SSM). EPA analyzed specific SSM SIP provisions and explained how each 
one either did or did not comply with the CAA with regard to excess 
emission events.\1\ For each SIP provision that EPA determined to be 
inconsistent with the CAA, EPA proposed to find that the existing SIP 
provision was substantially inadequate to meet CAA requirements and 
thus

[[Page 7726]]

proposed to issue a SIP call under CAA section 110(k)(5).
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    \1\ State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls to 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013).
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    On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings 
of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying 
to Excess Emissions During Periods of Startup, Shutdown and 
Malfunction'' (80 FR 33839, June 12, 2015), hereafter referred to as 
the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action clarified, 
restated, and updated EPA's interpretation that SSM exemption and 
affirmative defense SIP provisions are inconsistent with CAA 
requirements. The 2015 SSM SIP Action found that certain SIP provisions 
in 36 states were substantially inadequate to meet CAA requirements and 
issued a SIP call to those states to submit SIP revisions to address 
the inadequacies. EPA established an 18-month deadline by which the 
affected states had to submit such SIP revisions. States were required 
to submit corrective revisions to their SIPs in response to the SIP 
calls by November 22, 2016. With regard to Montana, in the 2015 SSM 
Action EPA issued a SIP call for ARM 17.8.334 because the Agency 
determined that it was inconsistent with CAA requirements because it 
contained an automatic exemption for emissions during startup and 
shutdown events. The detailed rationale for issuing the SIP call to 
Montana can be found in the 2015 SSM SIP Action and preceding proposed 
action.
    On July 6, 2016, the Governor of Montana submitted a SIP revision 
to EPA for approval that would remove ARM 17.8.334 from the SIP.\2\ In 
a document published on April 6, 2017, EPA proposed to approve 
Montana's SIP revision.\3\ As discussed in the proposal, EPA's proposed 
approval of the removal of ARM 17.8.334 from the Montana SIP was 
consistent with the Agency's 2015 SSM SIP Policy. A more detailed 
discussion of EPA's determination that Montana's SIP revision was 
adequate to correct the deficiency identified in the 2015 SSM SIP 
Action can be found in the proposed rule.
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    \2\ The State rulemaking that repealed ARM 17.8.334 also 
repealed two other sections of Montana's rules, including ARM 
17.8.335, which allowed aluminum plants to exceed applicable 
limitations during maintenance periods and ARM 17.8.772, which 
pertained to mercury allowance allocations under cap and trade 
budgets. Neither ARM 17.8.335 nor ARM 17.8.772 were approved into 
the SIP and therefore were not included in Montana's July 6, 2016 
SIP submittal to EPA to remove them from the SIP. Therefore, neither 
ARM 17.8.335 nor ARM 17.8.772 are not at issue in this action.
    \3\ 80 FR 33840.
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    EPA issued a Memorandum in October 2020 (2020 Memorandum), which 
stated that certain provisions governing SSM periods in SIPs could be 
viewed as consistent with CAA requirements.\4\ Importantly, the 2020 
Memorandum stated that it ``did not alter in any way the determinations 
made in the 2015 SSM SIP Action that identified specific state SIP 
provisions that were substantially inadequate to meet the requirements 
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on 
the SIP call issued to Montana in 2015. It also did not alter EPA's 
prior proposal from 2017 to approve the Montana SIP revision at issue 
in this action. The 2020 Memorandum did, however, indicate EPA's intent 
at the time to review SIP calls that were issued in the 2015 SSM SIP 
Action to determine whether EPA should maintain, modify, or withdraw 
particular SIP calls through future agency actions.
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    \4\ October 9, 2020, memorandum ``Inclusion of Provisions 
Governing Periods of Startup, Shutdown, and Malfunctions in State 
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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    On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 
Memorandum and announced EPA's return to the policy articulated in the 
2015 SSM SIP Action (2021 Memorandum).\5\ As articulated in the 2021 
Memorandum, SIP provisions that contain exemptions or affirmative 
defense provisions are not consistent with CAA requirements and, 
therefore, generally are not approvable if contained in a SIP 
submission. This policy approach is intended to ensure that all 
communities and populations, including minority, low-income and 
indigenous populations overburdened by air pollution, receive the full 
health and environmental protections provided by the CAA.\6\ The 2021 
Memorandum also retracted the prior statement from the 2020 Memorandum 
of EPA's plans to review and potentially modify or withdraw particular 
SIP calls. That statement no longer reflects EPA's intent. EPA intends 
to implement the principles laid out in the 2015 SSM SIP Action as the 
Agency takes action on SIP submissions, including Montana's SIP 
submittal provided in response to the 2015 SIP call for which EPA has 
already proposed approval. Consistent with that stated EPA intent and 
the return to the policy outlined in the 2015 SSM SIP Action, EPA is 
proceeding to take final action on its 2017 proposal to approve the 
Montana submittal, as described in the remainder of this document.
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    \5\ September 30, 2021, memorandum ``Withdrawal of the October 
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions 
in State Implementation Plans and Implementation of the Prior 
Policy,'' from Janet McCabe, Deputy Administrator.
    \6\ 80 FR 33985.
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II. EPA Response to Comments

    The comment period for EPA's April 6, 2017 notice of proposed 
rulemaking was open for 30 days. Notably, although over four years have 
elapsed since the comment period closed, EPA is taking this final 
action based on comments received during that comment period. No 
additional comment period is needed because nothing in the intervening 
time period--including the issuance and subsequent withdrawal of the 
2020 Memorandum changed the basis for EPA's proposed action. 
Accordingly, the April 6, 2017 document provided the public with a full 
opportunity to comment on the issues raised by the proposed action. EPA 
received one adverse comment on this proposed action from a group 
called ``The SSM Coalition.'' EPA also received a comment from an 
anonymous commenter expressing support for approval of the proposed 
action.
    Comment: The SSM Coalition did not discuss the details of EPA's 
proposed action on Montana's SIP, but more generally argued that it 
would be inappropriate for EPA to take final action on any SIP revision 
driven by the interpretations set forth in the 2015 SSM SIP Action, 
including the Montana proposal. The commenter referenced consolidated 
challenges to the 2015 SSM SIP Action filed in the D.C. Circuit (Walter 
Coke, Inc., et al. v. EPA, D.C. Cir. No. 15-1166), specifically citing 
EPA's April 18, 2017 motion asking the court to indefinitely postpone 
the oral argument so that new-at-the-time EPA political leadership 
would have adequate time to fully review the 2015 SSM SIP Action. The 
commenter asserted that EPA should defer action on the Montana SIP 
because, at the time of EPA's proposed approval of the Montana 
submission, EPA was reviewing the 2015 SSM SIP Action and the D.C. 
Circuit had not ruled on the challenges to the rule. The SSM 
Coalition's full comment can be found in the docket for this action.
    EPA response: The Agency acknowledges that there exist pending 
challenges to the 2015 SSM SIP Action in the court. However, there is 
no requirement or expectation that EPA must postpone action while 
awaiting a court decision. Montana has submitted a SIP revision to the 
Agency that is fully approvable for the reasons outlined in

[[Page 7727]]

the proposal document. As a result, EPA has determined that it is 
appropriate to take action to approve the State's SIP revision in 
accordance with applicable CAA requirements. Under the CAA, the 
Administrator is required to approve a SIP submission that complies 
with the provisions of the CAA and applicable Federal regulations. 42 
U.S.C. 7410(k); 40 CFR 52.02(a). The commenter has pointed to no 
alleged deficiency or other aspect that would lead the Agency to 
determine that the SIP revision should be disapproved or that full 
approval of the SIP revision is not otherwise appropriate.
    As outlined in EPA's 2015 SSM SIP Action, and recently reaffirmed 
in the 2021 Memorandum, EPA is implementing policy consistent with that 
outlined in the 2015 SSM SIP Action. That policy aligns with previous 
court decisions, including the U.S. Court of Appeals for the District 
of Columbia Circuit-issued ruling in 2008 that found that inclusion of 
SSM exemptions in CAA section 112 standards is not allowed under the 
CAA due to the generally applicable definition of emission 
limitations.\7\ It was in light of the 2008 court case, as well as 
concerns about the public health impacts of SSM, that led EPA in its 
2015 action to clarify and update its SSM policy (2015 SSM Policy) to 
indicate that automatic exemptions like the one at issue in today's 
action will generally be viewed as inconsistent with CAA requirements.
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    \7\ Sierra Club v. Johnson 551 F.3d 1019 (D.C. Cir.2008).
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    As the commenter noted, an April 18, 2017 motion by EPA asked the 
court to indefinitely postpone the oral argument so that new-at-the-
time EPA political leadership would have adequate time to fully review 
the 2015 SSM SIP Action.
    The comments regarding EPA' 2017 motion indicating that it is 
reviewing the 2015 SSM action are now moot. The D.C. Circuit lifted the 
abeyance on the litigation concerning the 2015 SSM SIP Action on 
December 17, 2021. As outlined in EPA's request to lift the abeyance 
\8\ and in the 2021 Memorandum, EPA is no longer reviewing the 2015 SSM 
Action. Under the 2021 Memorandum, EPA reinstated its prior policy that 
SIP provisions that contain exemptions or affirmative defense 
provisions are not consistent with CAA requirements and, therefore, 
generally would not be approvable if included in a SIP submission. The 
2021 Memorandum notes, among other provisions, CAA section 110(l)'s 
procedural requirements governing SIP amendments, section 302(k)'s 
requirement that all emission limitations apply on a ``continuous'' 
basis, and the substantive stringency requirements applicable to 
emission limitations pursuant to sections 165, 172, and 173.
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    \8\ See Declaration of Joseph Goffman, Sierra Club v. EPA, No. 
20-1115 (DC Cir. November 3, 2021), included in the docket for this 
action.
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III. Final Action

    For the reasons explained in the 2017 proposal, EPA is fully 
approving Montana's July 6, 2016 SIP submission removing ARM 17.8.334 
from the Montana SIP. The Agency's approval of this submission fully 
corrects the inadequacies in Montana's SIP that were identified in the 
EPA's 2015 SSM SIP Action.

IV. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference ARM regarding 
the removal of 17.8.334 from Montana's SIP, as discussed in section I 
of this preamble. EPA has made, and will continue to make, these 
materials generally available through www.regulations.gov and at the 
EPA Region 8 Office (please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section of this preamble for more 
information). Therefore, these materials have been approved by EPA for 
inclusion in the State implementation plan, have been incorporated by 
reference by EPA into that plan, are fully federally enforceable under 
sections 110 and 113 of the CAA as of the effective date of the final 
rulemaking of EPA's approval, and will be incorporated by reference in 
the next update to the SIP compilation.\9\
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    \9\ 62 FR 27968 (May 22, 1997).
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V. Statutory and Executive Orders Review

    Under the CAA, 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 CAA. Accordingly, this 
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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     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, 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 CAA; 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it

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is published in the Federal Register. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by April 11, 2022. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements.

    Dated: February 4, 2022.
KC Becker,
Regional Administrator, Region 8.

    For the resons set out in the preamble, 40 CFR part 52 is amended 
as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart BB--Montana


Sec.  52.1370   [Amended]

0
2. In Sec.  52.1370, the table in paragraph (c) is amended by removing 
the entry ``17.8.334'' under the heading ``(ii) Administrative Rules of 
Montana, Subchapter 03, Emission Standards''.

[FR Doc. 2022-02737 Filed 2-9-22; 8:45 am]
BILLING CODE 6560-50-P


