Air quality implementation plans; approval and promulgation; various States: Montana,

[Federal Register: August 13, 2001 (Volume 66, Number 156)]

[Rules and Regulations]

[Page 42425-42427]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr13au01-5]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52, 60, 61 and 62

[MT-001-0040a; FRL-7026-1a]

Approval and Promulgation of Air Quality Implementation Plans; Montana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Withdrawal of direct final rule.

SUMMARY: On June 15, 2001, EPA published a direct final rule (66 FR 32545) partially approving and partially disapproving, and a parallel proposed rule (66 FR 32594) proposing to partially approve and partially disapprove, State Implementation Plan (SIP) revisions submitted by the Governor of Montana on September 19, 1997; December 10, 1997; April 14, 1999; December 6, 1999; and March 3, 2000. These submitted revisions are intended to recodify and modify the State's air quality rules so that they are consistent with Federal requirements, minimize repetition in the air quality rules, and clarify existing provisions. They also contain Yellowstone County's Local Regulation No.002--Open Burning. Also, in our June 15, 2001 publication, EPA announced that on May 16, 2001, we delegated the authority for the implementation and enforcement of the New Source Performance Standards (NSPS) to the State. EPA also updated the NSPS and National Emissions Standards for Hazardous Air Pollutants (NESHAP) ``Status of Delegation Tables'' and the names and addresses of the Regional Office and State Offices in the Region. EPA also updated regulations to indicate that Montana provided a negative declaration. The direct final and proposed rule preambles explained that the direct final rule was to become effective on August 14, 2001. However, if EPA received an adverse comment by July 16, 2001, EPA would publish a timely withdrawal of the direct final rule and it would not take effect. Only

[[Page 42426]]

the June 15, 2001, parallel proposed rule preamble also stated that EPA would address all public comments in a subsequent final rule based on the proposed rule and that EPA would not institute a second comment period. Even though EPA did not receive adverse comments on the June 15, 2001, actions, EPA is withdrawing the June 15, 2001, direct final rule because the direct final and parallel proposed rules contain a number of errors that we have independently identified and want to correct before the direct final rule would otherwise become effective on August 14, 2001. EPA will issue another direct final rule and a parallel proposed rule correcting these errors and addressing the Governor of Montana's September 19, 1997, December 10, 1997, April 14, 1999, December 6, 1999, and March 3, 2000, submittals.

DATES: As of August 13, 2001, EPA withdraws the direct final rule published at 66 FR 32545.

ADDRESSES: Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air and Radiation Program, Environmental Protection Agency, Region 8, 999 18th Street, Suite 300, Denver, Colorado, 80202.

FOR FURTHER INFORMATION CONTACT: Laurie Ostrand, EPA Region 8, (303) 312-6437.

SUPPLEMENTARY INFORMATION: On June 15, 2001, EPA published a direct final rule (66 FR 32545) (FR Doc. 01-15027) partially approving and partially disapproving, and a parallel proposed rule (66 FR 32594) (FR Doc. 01-15028) proposing to partially approve and partially disapprove, State Implementation Plan (SIP) revisions submitted by the Governor of Montana on September 19, 1997; December 10, 1997; April 14, 1999; December 6, 1999; and March 3, 2000. The direct final rule was scheduled to become effective on August 14, 2001 (except that the delegation of the NSPS to Montana had already become effective on May 16, 2001). However, our preambles to the rules explained that if we received an adverse comment on our action by July 16, 2001, we would issue a timely withdrawal of the direct final rule and it would not take effect. In addition, only one of the June 15, 2001, rules--the parallel proposed rule--further explained that we would then issue another rule responding to any adverse comments and taking final action on the parallel proposal without instituting another public comment period. Our June 15, 2001, actions contained the following specific errors:

1. The June 15, 2001 direct final rule contained incorrect and misleading language in the Administrative Requirements section. Specifically, on page 32553, third column, the paragraph labeled ``G. Submission to Congress and the Comptroller General'' is incorrect in stating that ``EPA is not required to submit a rule report regarding this action under section 801 because this is a rule of particular applicability.'' Instead, the paragraph should have stated that EPA will submit a report containing the rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the U.S., prior to publication of the rule in the Federal Register. Our subsequent direct final rule will correct this inaccuracy.

2. The June 15, 2001, preamble to the direct final rule stated our intent to partially disapprove two of the State's air quality regulations, specifically, Administrative Rules of Montana (ARM) 17.8.309(5)(b) and 17.8.310(3)(e). See 66 FR at 32547, 32552. Although we indicated in the preamble that we intended to partially disapprove the rules, we failed to promulgate necessary corresponding regulatory text in 40 CFR part 52 subpart BB indicating that the State rules were to be disapproved. The subsequent direct final rule and parallel proposed rule will correct this error.

3. The June 15, 2001, direct final rule failed to identify the existence of or otherwise accurately cross-reference the parallel proposed rule published on the same day, or indicate that if we received an adverse comment--in addition to withdrawing the direct final rule--we would address all comments in a subsequent final rule based on the proposed rule, without instituting a second comment period. As a result, readers who reviewed our direct final rule alone, without knowledge of the parallel proposed rule, could not have been fully informed of our rulemaking process for this action. If, on the other hand, a reader reviewed both the direct final rule and the parallel proposed rule, she or he would have been presented with inconsistent descriptions of the process to be followed after submission of an adverse comment. Our failure to clearly and accurately describe the rulemaking process will be corrected in the subsequent direct final and parallel proposed rules.

4. The Summary of the June 15, 2001, proposed rule contains an inaccurate and misleading description of the proposed action. Specifically, the Summary indicated that we were proposing to take direct final action, which is confusing and not in fact what we intended. Instead, the proposal should have simply stated that we were proposing to take the actions described in the Summary. The Summary also indicated that we were ``approving'' other provisions, thus suggesting that some things were not only being proposed but were the subject of final action in that proposed rule, when it should have stated that we were proposing to approve those provisions. Our subsequent parallel proposed rule will correct this mistake.

5. The June 15, 2001 preambles to the direct final and proposed rules stated our intent to approve most of the State's recodified air quality rules, including the State's recodified stack height rules. However, in another pending SIP action in Montana (Billings/Laurel), we have questioned aspects of the Montana stack height regulations that are repeated in the recodification. We do not believe we should act on the recodification of these rules before we give full consideration to relevant issues in the context of our ongoing action on the Billings/ Laurel SIP, where the issues first arose and should be resolved. The direct final rule's inadvertent approval of the recodification was premature, and should not yet become effective. Accordingly, the subsequent direct final rule will indicate that we will act on the recodified stack height rules at a later date. This deferral of action will have no effect on the existing approved Montana stack height SIP.

We believe that the unique circumstances of the combination of errors in the June 15, 2001, direct final and parallel proposed rules for this action are best remedied, in this case, by a withdrawal of the direct final rule in advance of its taking effect, as would have occurred if someone had fileda comment objecting to the incorrect and misleading preamble language and the mistaken omission of regulatory language or the inadvertent and premature approval of the recodified stack height regulations. In addition, since the parallel proposed rule also contained an inaccurate and misleading description of the nature of that action and since we are withdrawing the direct final rule to which it was paired, it is appropriate to withdraw that rule. Our subsequent direct final and parallel proposed rules will clarify how we are treating the SIP submission, and will contain the necessary regulatory language to fully promulgate the direct final rule, should it become effective. Today's withdrawal action does not affect the status of the May 16, 2001, delegation of the NSPS to Montana, which had already become effective.

In the ``Proposed Rules'' section of today's Federal Register publication, we

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are withdrawing the proposed rule published on June 15, 2001.

List of Subjects

40 CFR Part 52

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

40 CFR Part 60

Environmental protection, Air pollution control, Aluminum, Ammonium sulfate plants, Beverages, Carbon monoxide, Cement industry, Coal, Copper, Drycleaners, Electric power plants, Fertilizers, Fluoride, Gasoline, Glass and glass products, Grains, Graphic arts industry, Household appliances, Insulation, Intergovernmental relations, Iron, Lead, Lime, Metallic and nonmetallic mineral processing plants, Metals, Motor vehicles, Natural gas, Nitric acid plants, Nitrogen dioxide, Paper and paper products industry, Particulate matter, Paving and roofing materials, Petroleum, Phosphate, Plastics materials and synthetics, Reporting and recordkeeping requirements, Sewage disposal, Steel, Sulfur oxides, Tires, Urethane, Vinyl, Waste treatment and disposal, Wool, Zinc.

40 CFR Part 61

Environmental protection, Air pollution control, Arsenic, Asbestos, Benzene, Beryllium, Hazardous substances, Mercury, Vinyl chloride.

40 CFR Part 62

Environmental protection, Administrative practice and procedure, Air pollution control, Fluoride, Intergovernmental relations, Phosphate fertilizer plants, Reporting and recordkeeping requirements.

Dated: July 31, 2001. Jack W. McGraw, Acting Regional Administrator, Region 8.

Accordingly, under the authority of 42 U.S.C. 7401-7671q, the direct final rule (66 FR 32545) (FR Doc. 01-15027) published on June 15, 2001, is withdrawn.

[FR Doc. 01-19871Filed8-10-01; 8:45 am]

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