Montana Administrative Register Notice 17-302 No. 3   02/11/2010    
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In the matter of the amendment of ARM 17.8.745 pertaining to Montana air quality permits--exclusion for de minimis changes









            TO:  All Concerned Persons


            1.  On March 11, 2010, at 1:30 p.m., the Board of Environmental Review will hold a public hearing in Room 35, Metcalf Building, 1520 East Sixth Avenue, Helena, Montana, to consider the proposed amendment of the above-stated rule.


            2.  The board will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice.  If you require an accommodation, contact Elois Johnson, Paralegal, no later than 5:00 p.m., February 22, 2010, to advise us of the nature of the accommodation that you need.  Please contact Elois Johnson at Department of Environmental Quality, P.O. Box 200901, Helena, Montana 59620-0901; phone (406) 444-2630; fax (406) 444-4386; or e-mail ejohnson@mt.gov.


            3.  The rule proposed to be amended provides as follows, stricken matter interlined, new matter underlined:


            17.8.745  MONTANA AIR QUALITY PERMITS--EXCLUSION FOR DE MINIMIS CHANGES  (1)  A Montana air quality permit is not required under ARM 17.8.743 for de minimis changes as specified below:

            (a)  Construction or changed conditions of operation at a facility for which a Montana air quality permit has been issued that do not increase the facility's potential to emit by more than 15 5 tons per year of any pollutant except:

            (i)  through (iii) remain the same.

            (iv)  any construction or improvement project with a potential to emit more than 15 5 tons per year may not be artificially split into smaller projects to avoid permitting under this subchapter; and

            (v) through (2) remain the same.


            AUTH:  75-2-111, 75-2-204, MCA

            IMP:  75-2-211, MCA


            REASON:  On August 9, 1996, the board adopted the initial de minimis rules, ARM 16.8.1102, 16.8.1113, and 16.8.1121 as part of Montana's state air quality preconstruction permit program rules.  These rules created an exemption from the requirement to obtain an air quality permit modification for certain changes at a permitted facility that did not increase the facility's potential emissions of a pollutant by more than 15 tons per year, when conditions specified in the rules were met.  On December 9, 1996, the board recodified its rules, including the following recodification of the de minimis rules:  ARM 16.8.1102 became 17.8.705; 16.8.1113 became 17.8.733; and 16.8.1121 became 17.8.708.  On May 14, 1999, the board revised ARM 17.8.705 and 17.8.733 and repealed 17.8.708.  The Governor submitted the board's August 9, 1996, and May 14, 1999, rulemaking actions to the Environmental Protection Agency ("EPA") on August 26, 1999, for inclusion in the state implementation plan ("SIP").  On December 6, 2002, the board repealed ARM 17.8.705 and 17.8.733, which the board incorporated into a new rule, ARM 17.8.745, the current de minimis rule.  On May 28, 2003, the Governor submitted the new rule to EPA for inclusion in the SIP and rescinded the previous submissions of ARM 17.8.705 and 17.8.733.  EPA has not acted on this SIP submittal.

            When the board adopts a rule necessary to attain, or maintain compliance with, national ambient air quality standards ("NAAQS"), the Governor submits the rule to EPA for inclusion in the SIP.  EPA then has a limited amount of time to approve or disapprove the submission.  However, EPA has not taken action on many such submissions, and this failure to take timely action on Montana's SIP submissions over many years has left the department and Montana's permitted industries in the difficult position that Montana's permitted industry is subject to different sets of rules:  the current Administrative Rules of Montana (ARM); and the rules that have been formally approved by EPA into the SIP.

            The state's original air quality permitting rules did not include provisions for de minimis actions.  The intent of the de minimis rule was to avoid expenditure of the resources required for both the department and the regulated community to process relatively inconsequential changes that otherwise would be handled as resource-intensive permit modifications.  The de minimis rule allows the department and the regulated community to redirect resources to more significant air pollution impacts having much greater potential effects on public health and welfare.

            EPA has indicated to the state that it intends to disapprove ARM 17.8.745 as a revision to the SIP.  Through the various rule revisions, the department has implemented the de minimis rule since 1996.  The department has received and approved countless de minimis requests, from a wide spectrum of industry types, based on conformity with the requirements in ARM 17.8.745.  Most of these requests have been for changes that did not increase the facility's potential emissions by more than 5 tons per year.  Implementation of the de minimis rule over the past 13 years, with a threshold of 15 tons per year, has not resulted in a violation of the NAAQS, which are set by EPA at levels intended to protect public health and welfare.  Therefore, the more stringent threshold of 5 tons proposed by the board in this rulemaking should not cause a NAAQS violation and should not pose a risk to public health and welfare.

            The board believes that a de minimis exemption from permit modification requirements is reasonably necessary in order to avoid expenditure of resources on facility changes that do not pose a risk to public health and welfare.  Based on the department's experience in implementing the de minimis rule that a threshold greater than five tons is not necessary, the indication from EPA that it intends to disapprove the current ARM 17.8.745, and the need for consistency between the state rules implemented by the department and the rules enforceable under the SIP, the board proposes to decrease the existing 15-ton per year de minimis rule threshold to 5 tons per year.  This would increase the stringency of the threshold and overall implementation of the de minimis rule, would not compromise control measures designed to maintain, or achieve compliance with, the NAAQS, and would continue to allow the department and the regulated community the opportunity to utilize their resources for more pressing air quality concerns than permitting minor modifications.


            4.  Concerned persons may submit their data, views, or arguments, either orally or in writing, at the hearing.  Written data, views, or arguments may also be submitted to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Avenue, P.O. Box 200901, Helena, Montana 59620-0901; faxed to (406) 444-4386; or e-mailed to ejohnson@mt.gov, no later than 5:00 p.m., March 18, 2010.  To be guaranteed consideration, mailed comments must be postmarked on or before that date.


            5.  Katherine Orr, attorney for the board, or another attorney for the Agency Legal Services Bureau, has been designated to preside over and conduct the hearing.


            6.  The board maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies that the person wishes to receive notices regarding:  air quality; hazardous waste/waste oil; asbestos control; water/wastewater treatment plant operator certification; solid waste; junk vehicles; infectious waste; public water supply; public sewage systems regulation; hard rock (metal) mine reclamation; major facility siting; opencut mine reclamation; strip mine reclamation; subdivisions; renewable energy grants/loans; wastewater treatment or safe drinking water revolving grants and loans; water quality; CECRA; underground/above ground storage tanks; MEPA; or general procedural rules other than MEPA.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to Elois Johnson, Paralegal, Department of Environmental Quality, 1520 E. Sixth Ave., P.O. Box 200901, Helena, Montana 59620-0901, faxed to the office at (406) 444-4386, e-mailed to Elois Johnson at ejohnson@mt.gov, or may be made by completing a request form at any rules hearing held by the board.


            7.  The bill sponsor contact requirements of 2-4-302, MCA, do not apply.


Reviewed by:                                     BOARD OF ENVIRONMENTAL REVIEW




/s/ David Rusoff                                   BY:  /s/ Joseph W. Russell                                  

DAVID RUSOFF                                           JOSEPH W. RUSSELL, M.P.H.,

Rule Reviewer                                               Chairman


            Certified to the Secretary of State, February 1, 2010.


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