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| Montana Administrative Register Notice 17-299 | No. 24 12/24/2009 | |
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BEFORE THE BOARD OF ENVIRONMENTAL REVIEW OF THE STATE OF MONTANA
TO: All Concerned Persons 1. On January 22, 2010, at 9:00 a.m., the Board of Environmental Review will hold a public hearing in Room 111, Metcalf Building, 1520 East Sixth Avenue, Helena, Montana, to consider the proposed amendment and adoption of the above-stated rules. 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., January 11, 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 [email protected]. 3. New Rules I through XX consist of five sets of four rules that would be placed in ARM Title 17, chapter 8, subchapters 6, 7, 8, 9, and 12. 4. The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined: 17.8.501 DEFINITIONS For the purposes of this subchapter, the following definitions apply: (1) and (2) remain the same. (3) "Municipal solid waste landfill" has the meaning given in 75-10-203, MCA. (3) and (4) remain the same, but are renumbered (4) and (5). (6) "Publicly owned treatment works" (POTW) has the meaning given in ARM 17.30.1304(48). (5) through (9) remain the same, but are renumbered (7) through (11). AUTH: 75-2-111, MCA IMP: 75-2-211, MCA 17.8.504 AIR QUALITY PERMIT APPLICATION FEES (1) An applicant submitting a Montana air quality permit application, as required in ARM Title 17, chapter 8, subchapters 7, 8, 9, or 10, shall submit an application fee as provided in (1)(a), (b), and (c): (a) the following table sets forth source types and associated fees:
(b) through (5) remain the same. AUTH: 75-2-111, 75-2-220, 75-2-234, MCA IMP: 75-2-211, 75-2-220, 75-2-234, MCA 17.8.601 DEFINITIONS (1) through (1)(c) remain the same. (2) "Carbon dioxide equivalent," or "CO2e," means a metric used to compare the emissions from various greenhouse gases based upon their global warming potential (GWP). The CO2e for a gas is determined by multiplying the mass of the gas by the associated GWP. The applicable GWPs and guidance on how to calculate a source's GHG emissions in tons per year CO2e can be found in EPA's "Inventory of U.S. Greenhouse Gas Emissions and Sinks," which is updated annually under existing commitment under the United Nations Framework Convention on Climate Change (UNFCCC). (2) through (4)(d) remain the same, but are renumbered (3) through (5)(d). (6) "Greenhouse gas," or "GHG," means carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), sulfur hexafluoride (SF6), hydrofluorocarbons (HFCs), and perfluorocarbons (PFCs) as CO2e. (6) through (11) remain the same, but are renumbered (8) through (13). IMP: 75-2-203, MCA
17.8.740 DEFINITIONS For the purposes of this subchapter: (1) and (2) remain the same. (3) "Carbon dioxide equivalent," or "CO2e," means a metric used to compare the emissions from various greenhouse gases based upon their global warming potential (GWP). The CO2e for a gas is determined by multiplying the mass of the gas by the associated GWP. The applicable GWPs and guidance on how to calculate a source's GHG emissions in tons per year CO2e can be found in EPA's "Inventory of U.S. Greenhouse Gas Emissions and Sinks," which is updated annually under existing commitment under the United Nations Framework Convention on Climate Change (UNFCCC). (3) through (8) remain the same, but are renumbered (4) through (9). (10) "Greenhouse gas," or "GHG," means carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), sulfur hexafluoride (SF6), hydrofluorocarbons (HFCs), and perfluorocarbons (PFCs) as CO2e. (9) through (21)(b) remain the same, but are renumbered (11) through (23)(b). IMP: 75-2-211, MCA 17.8.743 (1) Except as provided in ARM 17.8.744, 17.8.745, and 17.8.1602, a person may not construct, install, modify, or operate any of the following without first obtaining a Montana air quality permit issued by the department: (a) remains the same. (b) asphalt concrete plants, mineral crushers, and mineral screens that have the potential to emit 25,000 tons per year or more of GHG [or an amount of GHG that is between 15 and 50,000 tons per year] or more than 15 tons per year of any other airborne pollutant, other than lead, that is regulated under this chapter; (c) any incinerator, as defined in 75-2-103(11), MCA, and that is subject to the requirements of 75-2-215, MCA; (d) any facility or emitting unit upon which construction commenced, or that was installed, before November 23, 1968, when that facility or emitting unit is modified after that date and the modification increases the potential to emit by 25,000 tons per year or more of GHG [or an amount of GHG that is between 25 and 50,000 tons per year] or by more than 25 tons per year of any other airborne pollutant, other than lead, that is regulated under this chapter; or (e) any other facility or emitting unit upon which construction was commenced, or that was installed, after November 23, 1968, that is not specifically excluded under ARM 17.8.744, and that has the potential to emit 25,000 tons per year or more of GHG [or an amount of GHG that is between 25 and 50,000 tons per year] or more than 25 tons per year of any other airborne pollutant, other than lead, that is regulated under this chapter. (2) through (5) remain the same. IMP: 75-2-211, MCA 17.8.744 (1) A Montana air quality permit is not required under ARM 17.8.743 for the following: (a) through (i) remain the same. (j) drilling rig stationary engines and turbines that do not have the potential to emit 25,000 tons per year or more of GHG [or an amount of GHG that is between 100 and 50,000 tons per year] or more than 100 tons per year of any other pollutant regulated under this chapter and that do not operate in any single location for more than 12 months; (k) through (m) remain the same. AUTH: 75-2-111, 75-2-204, 75-2-234, MCA 17.8.745 (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 the significance level for GHG, as defined by ARM 17.8.801(29), or by more than 15 tons per year of any other pollutant except: (i) through (2) remain the same. IMP: 75-2-211, MCA 17.8.801 DEFINITIONS In this subchapter, the following definitions apply: (1) through (7) remain the same. (8) "Carbon dioxide equivalent," or "CO2e," means a metric used to compare the emissions from various greenhouse gases based upon their global warming potential (GWP). The CO2e for a gas is determined by multiplying the mass of the gas by the associated GWP. The applicable GWPs and guidance on how to calculate a source's GHG emissions in tons per year CO2e can be found in EPA's "Inventory of U.S. Greenhouse Gas Emissions and Sinks," which is updated annually under existing commitment under the United Nations Framework Convention on Climate Change (UNFCCC). (8) through (14) remain the same, but are renumbered (9) through (15). (16) "Greenhouse gas," or "GHG," means carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), sulfur hexafluoride (SF6), hydrofluorocarbons (HFCs), and perfluorocarbons (PFCs) as CO2e. (15) through (21)(d) remain the same, but are renumbered (17) through (23)(d). (a) "major stationary source" means: (i) any of the following stationary sources of air pollutants which emits, or has the potential to emit, 25,000 tons per year or more of GHG or 100 tons per year or more of any other pollutant subject to regulation under the FCAA, excluding hazardous air pollutants, except to the extent that such hazardous air pollutants are regulated as constituents of more general pollutants listed in section 108(a)(1) of the FCAA: fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input, coal cleaning plants (with thermal dryers), kraft pulp mills, Portland cement plants, primary zinc smelters, iron and steel mill plants, primary aluminum ore reduction plants, primary copper smelters, municipal incinerators capable of charging more than 250 tons of refuse per day, hydrofluoric, sulfuric, and nitric acid plants, petroleum refineries, lime plants, phosphate rock processing plants, coke oven batteries, sulfur recovery plants, carbon black plants (furnace process), primary lead smelters, fuel conversion plants, sintering plants, secondary metal production plants, chemical process plants, fossil fuel boilers (or combinations thereof) totaling more than 250 million British thermal units per hour heat input, petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels, taconite ore processing plants, glass fiber processing plants, and charcoal production plants; (ii) notwithstanding the stationary source size specified in (iii) any physical change that would occur at a stationary source not otherwise qualifying under (b) through (c)(xxvii) remain the same. (23) through (26) remain the same, but are renumbered (25) through (28). (a) "significant" means, in reference to a net emissions increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates: Pollutant and Emissions Rate Carbon monoxide: 100 tons per year (tpy) Nitrogen oxides: 40 tpy Sulfur dioxide: 40 tpy Particulate matter: 25 tpy of particulate matter emissions 15 tpy of PM-10 emissions Ozone: 40 tpy of volatile organic compounds Lead: 0.6 tpy Fluorides: 3 tpy Sulfuric acid mist: 7 tpy Hydrogen sulfide (H2S): 10 tpy Total reduced sulfur (including H2S): 10 tpy Reduced sulfur compounds (including H2S): 10 tpy Municipal waste combustor organics (measured as total tetra- through octa-chlorinated dibenzo-p-dioxins and dibenzofurans): 3.2 * 10-6 megagrams per year (3.5 * 10-6 tpy) Municipal waste combustor metals (measured as particulate matter): 14 megagrams per year (15 tpy) Municipal waste combustor acid gases (measured as sulfur dioxide and hydrogen chloride): 36 megagrams per year (40 tpy) Greenhouse gas: [an amount to be determined by the board that is within the range of 10,000 to 25,000 tpy] (b) "significant" means, in reference to a net emissions increase or the potential of a source to emit a pollutant subject to regulation under the FCAA, that (c) Notwithstanding (28) and (29) remain the same, but are renumbered (30) and (31). IMP: 75-2-202, 75-2-203, 75-2-204, MCA 17.8.901 DEFINITIONS In this subchapter the following definitions apply: (1) through (4) remain the same. (5) "Carbon dioxide equivalent," or "CO2e," means a metric used to compare the emissions from various greenhouse gases based upon their global warming potential (GWP). The CO2e for a gas is determined by multiplying the mass of the gas by the associated GWP. The applicable GWPs and guidance on how to calculate a source's GHG emissions in tons per year CO2e can be found in EPA's "Inventory of U.S. Greenhouse Gas Emissions and Sinks," which is updated annually under existing commitment under the United Nations Framework Convention on Climate Change (UNFCCC). (5) through (9) remain the same, but are renumbered (6) through (10). (11) "Greenhouse gas," or "GHG," means carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), sulfur hexafluoride (SF6), hydrofluorocarbons (HFCs), and perfluorocarbons (PFCs) as CO2e. (10) through (11)(b)(vii) remain the same, but are renumbered (12) through (13)(b)(vii). (a) "major stationary source" means: (i) any stationary source of air pollutants which emits, or has the potential to emit, 25,000 tons per year or more of GHG [or an amount of GHG that is between 100 and 50,000 tons per year] or 100 tons per year or more of any other pollutant subject to regulation under the FCAA; or (ii) remains the same. (iii) any physical change that would occur at a stationary source not qualifying under (b) through (b)(xxvii) remain the same. (13) through (17) remain the same, but are renumbered (15) through (19). Pollutant and Emission Rate Carbon monoxide: 100 tons per year (tpy) Nitrogen oxides: 40 tpy Sulfur dioxide: 40 tpy Particulate matter: 25 tpy of particulate matter emissions or 15 tpy of PM-10 emissions Lead: 0.6 tpy Greenhouse Gas: [an amount to be determined by the board that is within the range of 10,000 to 25,000 tpy] (19) and (20) remain the same, but are renumbered (21) and (22). IMP: 75-2-202, 75-2-203, 75-2-204, MCA 17.8.1201 DEFINITIONS In this subchapter, unless indicated otherwise, the following definitions apply: (1) through (10)(l) remain the same. (11) "Carbon dioxide equivalent," or "CO2e," means a metric used to compare the emissions from various greenhouse gases based upon their global warming potential (GWP). The CO2e for a gas is determined by multiplying the mass of the gas by the associated GWP. The applicable GWPs and guidance on how to calculate a source's GHG emissions in tons per year CO2e can be found in EPA's "Inventory of U.S. Greenhouse Gas Emissions and Sinks," which is updated annually under existing commitment under the United Nations Framework Convention on Climate Change (UNFCCC). (11) through (20) remain the same, but are renumbered (12) through (21). (22) "Greenhouse gas," or "GHG," means carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), sulfur hexafluoride (SF6), hydrofluorocarbons (HFCs), and perfluorocarbons (PFCs) as CO2e. (21) through (22)(b) remain the same, but are renumbered (23) through (24)(b). (a) through (a)(ii) remain the same. (b) A major stationary source of air pollutants that directly emits or has the potential to emit, 25,000 tons per year or more of GHG [or an amount of GHG that is between 100 and 50,000 tons per year] or 100 tons per year or more of any other air pollutant. The fugitive emissions of a stationary source shall not be considered in determining whether it is a major stationary source, unless the source belongs to one of the following categories of stationary source: (i) through (c) remain the same. (24) through (33) remain the same, but are renumbered (26) through (35). AUTH: 75-2-217, MCA 5. The proposed new rules provide as follows: NEW RULE I EFFECTIVE DATE FOR GREENHOUSE GAS EMISSION REGULATION (1) All GHG provisions in this subchapter [Title 17, chapter 8, subchapter 6] are effective on the earliest of the following dates: (a) the date that compliance with EPA's final "Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards," proposed at 74 Fed. Reg. 49454 (September 28, 2009), is required; (b) the date that compliance with the new source review requirements of the Federal Clean Air Act is required for GHGs; or (c) the date that compliance with the Title V permitting requirements of the Federal Clean Air Act is required for GHGs. IMP: 75-2-203, MCA NEW RULE II RETROACTIVITY OF GREENHOUSE GAS EMISSION REGULATION (1) All GHG provisions in this subchapter [Title 17, chapter 8, subchapter 6] apply retroactively to the earliest of the following dates: (a) the date that compliance with EPA's final "Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards," proposed at 74 Fed. Reg. 49454 (September 28, 2009), is required; (b) the date that compliance with the new source review requirements of the Federal Clean Air Act is required for GHGs; or (c) the date that compliance with the Title V permitting requirements of the Federal Clean Air Act is required for GHGs. IMP: 75-2-203, MCA NEW RULE III GREENHOUSE GAS EMISSION REGULATION CONTINGENT UPON FEDERAL REGULATION (1) If EPA stays, withdraws, or reconsiders its "Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards," proposed at 74 Fed. Reg. 49454 (September 28, 2009), and its "Prevention of Significant Deterioration and Title V Greenhouse Gas Rule," proposed at 74 Fed. Reg. 55292 (October 27, 2009), or a court of competent jurisdiction issues an order vacating or otherwise invalidating EPA's regulation of GHG for any reason, all GHG provisions in this subchapter [Title 17, chapter 8, subchapter 6] are void as of the date of such administrative or judicial action and shall have no further force and effect. IMP: 75-2-203, MCA NEW RULE IV TERMINATION OF GREENHOUSE GAS EMISSION REGULATION (1) All GHG provisions in this subchapter [Title 17, chapter 8, subchapter 6] terminate on December 31, 2011. IMP: 75-2-203, MCA NEW RULE V EFFECTIVE DATE FOR GREENHOUSE GAS EMISSION REGULATION (1) All GHG provisions in this subchapter [Title 17, chapter 8, subchapter 7] are effective on the earliest of the following dates: (a) the date that compliance with EPA's final "Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards," proposed at 74 Fed. Reg. 49454 (September 28, 2009), is required; (b) the date that compliance with the new source review requirements of the Federal Clean Air Act is required for GHGs; or (c) the date that compliance with the Title V permitting requirements of the Federal Clean Air Act is required for GHGs. AUTH: 75-2-111, 75-2-204, 75-2-234, MCA NEW RULE VI RETROACTIVITY OF GREENHOUSE GAS EMISSION REGULATION (1) All GHG provisions in this subchapter [Title 17, chapter 8, subchapter 7] apply retroactively to the earliest of the following dates: (a) the date that compliance with EPA's final "Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards," proposed at 74 Fed. Reg. 49454 (September 28, 2009), is required; (b) the date that compliance with the new source review requirements of the Federal Clean Air Act is required for GHGs; or (c) the date that compliance with the Title V permitting requirements of the Federal Clean Air Act is required for GHGs. AUTH: 75-2-111, 75-2-204, 75-2-234, MCA NEW RULE VII GREENHOUSE GAS EMISSION REGULATION CONTINGENT UPON FEDERAL REGULATION (1) If EPA stays, withdraws, or reconsiders its "Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards," proposed at 74 Fed. Reg. 49454 (September 28, 2009), and its "Prevention of Significant Deterioration and Title V Greenhouse Gas Rule," proposed at 74 Fed. Reg. 55292 (October 27, 2009), or a court of competent jurisdiction issues an order vacating or otherwise invalidating EPA's regulation of GHG for any reason, all GHG provisions in this subchapter [Title 17, chapter 8, subchapter 7] are void as of the date of such administrative or judicial action and shall have no further force and effect. AUTH: 75-2-111, 75-2-204, 75-2-234, MCA NEW RULE VIII TERMINATION OF GREENHOUSE GAS EMISSION REGULATION (1) All GHG provisions in this subchapter [Title 17, chapter 8, subchapter 7] terminate on December 31, 2011. AUTH: 75-2-111, 75-2-204, 75-2-234, MCA NEW RULE IX EFFECTIVE DATE FOR GREENHOUSE GAS EMISSION REGULATION (1) All GHG provisions in this subchapter [Title 17, chapter 8, subchapter 8] are effective on the earliest of the following dates: (a) the date that compliance with EPA's final "Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards," proposed at 74 Fed. Reg. 49454 (September 28, 2009), is required; (b) the date that compliance with the new source review requirements of the Federal Clean Air Act is required for GHGs; or (c) the date that compliance with the Title V permitting requirements of the Federal Clean Air Act is required for GHGs. IMP: 75-2-202, 75-2-203, 75-2-204, MCA NEW RULE X RETROACTIVITY OF GREENHOUSE GAS EMISSION REGULATION (1) All GHG provisions in this subchapter [Title 17, chapter 8, subchapter 8] apply retroactively to the earliest of the following dates: (a) the date that compliance with EPA's final "Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards," proposed at 74 Fed. Reg. 49454 (September 28, 2009), is required; (b) the date that compliance with the new source review requirements of the Federal Clean Air Act is required for GHGs; or (c) the date that compliance with the Title V permitting requirements of the Federal Clean Air Act is required for GHGs. IMP: 75-2-202, 75-2-203, 75-2-204, MCA NEW RULE XI GREENHOUSE GAS EMISSION REGULATION CONTINGENT UPON FEDERAL REGULATION (1) If EPA stays, withdraws, or reconsiders its "Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards," proposed at 74 Fed. Reg. 49454 (September 28, 2009), and its "Prevention of Significant Deterioration and Title V Greenhouse Gas Rule," proposed at 74 Fed. Reg. 55292 (October 27, 2009), or a court of competent jurisdiction issues an order vacating or otherwise invalidating EPA's regulation of GHG for any reason, all GHG provisions in this subchapter [Title 17, chapter 8, subchapter 8] are void as of the date of such administrative or judicial action and shall have no further force and effect. IMP: 75-2-202, 75-2-203, 75-2-204, MCA NEW RULE XII TERMINATION OF GREENHOUSE GAS EMISSION REGULATION (1) All GHG provisions in this subchapter [Title 17, chapter 8, subchapter 8] terminate on December 31, 2011. IMP: 75-2-202, 75-2-203, 75-2-204, MCA NEW RULE XIII EFFECTIVE DATE FOR GREENHOUSE GAS EMISSION REGULATION (1) All GHG provisions in this subchapter [Title 17, chapter 8, subchapter 9] are effective on the earliest of the following dates: (a) the date that compliance with EPA's final "Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards," proposed at 74 Fed. Reg. 49454 (September 28, 2009), is required; (b) the date that compliance with the new source review requirements of the Federal Clean Air Act is required for GHGs; or (c) the date that compliance with the Title V permitting requirements of the Federal Clean Air Act is required for GHGs. IMP: 75-2-202, 75-2-203, 75-2-204, MCA NEW RULE XIV RETROACTIVITY OF GREENHOUSE GAS EMISSION REGULATION (1) All GHG provisions in this subchapter [Title 17, chapter 8, subchapter 9] apply retroactively to the earliest of the following dates: (a) the date that compliance with EPA's final "Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards," proposed at 74 Fed. Reg. 49454 (September 28, 2009), is required; (b) the date that compliance with the new source review requirements of the Federal Clean Air Act is required for GHGs; or (c) the date that compliance with the Title V permitting requirements of the Federal Clean Air Act is required for GHGs. IMP: 75-2-202, 75-2-203, 75-2-204, MCA NEW RULE XV GREENHOUSE GAS EMISSION REGULATION CONTINGENT UPON FEDERAL REGULATION (1) If EPA stays, withdraws, or reconsiders its "Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards," proposed at 74 Fed. Reg. 49454 (September 28, 2009), and its "Prevention of Significant Deterioration and Title V Greenhouse Gas Rule," proposed at 74 Fed. Reg. 55292 (October 27, 2009), or a court of competent jurisdiction issues an order vacating or otherwise invalidating EPA's regulation of GHG for any reason, all GHG provisions in this subchapter [Title 17, chapter 8, subchapter 9] are void as of the date of such administrative or judicial action and shall have no further force and effect. IMP: 75-2-202, 75-2-203, 75-2-204, MCA NEW RULE XVI TERMINATION OF GREENHOUSE GAS EMISSION REGULATION (1) All GHG provisions in this subchapter [Title 17, chapter 8, subchapter 9] terminate on December 31, 2011. IMP: 75-2-202, 75-2-203, 75-2-204, MCA NEW RULE XVII EFFECTIVE DATE FOR GREENHOUSE GAS EMISSION REGULATION (1) All GHG provisions in this subchapter [Title 17, chapter 8, subchapter 12] are effective on the earliest of the following dates: (a) the date that compliance with EPA's final "Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards," proposed at 74 Fed. Reg. 49454 (September 28, 2009), is required; (b) the date that compliance with the new source review requirements of the Federal Clean Air Act is required for GHGs; or (c) the date that compliance with the Title V permitting requirements of the Federal Clean Air Act is required for GHGs. AUTH: 75-2-217, MCA NEW RULE XVIII RETROACTIVITY OF GREENHOUSE GAS EMISSION REGULATION (1) All GHG provisions in this subchapter [Title 17, chapter 8, subchapter 12] apply retroactively to the earliest of the following dates: (a) the date that compliance with EPA's final "Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards," proposed at 74 Fed. Reg. 49454 (September 28, 2009), is required; (b) the date that compliance with the new source review requirements of the Federal Clean Air Act is required for GHGs; or (c) the date that compliance with the Title V permitting requirements of the Federal Clean Air Act is required for GHGs. AUTH: 75-2-217, MCA NEW RULE XIX GREENHOUSE GAS EMISSION REGULATION CONTINGENT UPON FEDERAL REGULATION (1) If EPA stays, withdraws, or reconsiders its "Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards," proposed at 74 Fed. Reg. 49454 (September 28, 2009), and its "Prevention of Significant Deterioration and Title V Greenhouse Gas Rule," proposed at 74 Fed. Reg. 55292 (October 27, 2009), or a court of competent jurisdiction issues an order vacating or otherwise invalidating EPA's regulation of GHG for any reason, all GHG provisions in this subchapter [Title 17, chapter 8, subchapter 12] are void as of the date of such administrative or judicial action and shall have no further force and effect. AUTH: 75-2-217, MCA NEW RULE XX TERMINATION OF GREENHOUSE GAS EMISSION REGULATION (1) All GHG provisions in this subchapter [Title 17, chapter 8, subchapter 12] terminate on December 31, 2011. AUTH: 75-2-217, MCA REASON: Pursuant to 75-2-203(1), MCA, the board has authority to establish limits on emissions of air pollutants from any air pollutant source necessary to prevent, abate, or control air pollution. According to the GHG emissions were established as meeting the definition of "air pollutant" under the FCAA in the April 2, 2007, decision of the U.S. Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007), a challenge to EPA's denial of a petition for rulemaking with respect to regulating GHG from motor vehicles. The Court stated: "Because greenhouse gases fit well within the Act's capacious definition of 'air pollutant,' EPA has statutory authority to regulate emissions of such gases from new motor vehicles. That definition – which includes 'any air pollution agent …, including any physical, chemical, … substance … emitted into … the ambient air ... ' (emphasis added) – embraces all airborne compounds of whatever stripe. Moreover, carbon dioxide and other greenhouse gases are undoubtedly 'physical [and] chemical … substances.'" In 75-2-103(3), MCA, the Clean Air Act of Montana refers to pollutants regulated under the FCAA as follows: "'Air pollutants' means one or more air contaminants that are present in the outdoor atmosphere, including those pollutants regulated pursuant to section 7412 and Subchapter V of the federal Clean Air Act, 42 U.S. Code (U.S.C.) 7401, et seq." Air contaminants are defined under 75-2-103(2) as "dust, fumes, mist, smoke, other particulate matter, vapor, gas, odorous substances, or any combination thereof." Before EPA may issue standards addressing emissions of greenhouse gases from new motor vehicles or engines under Section 202(a) of the FCAA, the Administrator of EPA must satisfy a two-step test. First, the Administrator must decide whether, in her judgment, the air pollution under consideration may reasonably be anticipated to endanger public health or welfare. Second, the Administrator must decide whether, in her judgment, emissions of an air pollutant from new motor vehicles or engines cause or contribute to this air pollution. In its Endangerment Finding, EPA made both of these findings and stated: "The administrator has considered how elevated concentrations of the well-mixed greenhouse gases and associated climate change affect public welfare by evaluating numerous and far-ranging risks to food production and agriculture, forestry, water resources, sea level rise and coastal areas, energy, infrastructure, and settlements, and ecosystems and wildlife ... the evidence provides compelling support for finding that greenhouse gas air pollution endangers the public welfare of both current and future generations. The risk and the severity of adverse impacts on public welfare are expected to increase over time." On September 28, 2009, EPA followed its Proposed Endangerment Finding with a "Proposed Rulemaking to Establish Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards" ("Light-Duty Vehicle Rule"), 74 Fed. Reg. 49454. EPA is addressing the regulation of GHG emissions from major stationary sources in a proposed EPA regulation, issued October 27, 2009, titled "Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule" ("Tailoring Rule"), 74 Fed. Reg. 55292. If EPA finalizes either its Light Duty Vehicle Rule or Tailoring Rule, GHG will become a regulated pollutant under the FCAA and the Clean Air Act of Montana. This will occur on the date that compliance for GHG is required for either the Light Duty Vehicle Rule, Major New Source Review, or Title V permitting requirements, whichever occurs earlier. On that date air quality permitting provisions under the Major New Source Review and Title V major source permitting programs, as well as under If permitting requirements become applicable to GHG emissions at the applicability levels provided under the FCAA and adopted by the board under the existing state rules, minor and major source permitting requirements will apply for the first time to thousands of relatively small emission sources for which permits are not currently required. For example, many home furnaces, currently not subject to minor source permitting under the residential heating use exemption, exceed the existing potential emissions threshold of 25 tons per year of GHG for minor source permitting. In addition, the department will be required to process permit applications in numbers that are orders of magnitude greater than current administrative resources can accommodate. The proposed rules would be temporary in an effort to quickly make rule changes to avoid the consequences of permitting GHG sources at the current permit thresholds but allow for a stakeholder process in later rulemaking to establish permanent GHG permit thresholds for both major and minor source air quality permitting. Therefore, the board is proposing rule amendments and new rules to establish appropriate permitting thresholds for regulation of GHG emissions. The board is proposing temporary rules to establish the permitting threshold for GHG for both the major and minor source permitting programs at 25,000 tons per year of carbon dioxide equivalent (CO2e) emissions, which is the threshold level in EPA's October 27, 2009, proposal for GHG major source permitting under Major New Source Review and Title V. In the alternative, as seen in the bracketed and underlined language, the board is proposing a range of permitting threshold levels up to 50,000 tons per day in order to allow the board to set the thresholds at the level set by EPA if it is different than 25,000 tons per year. This threshold change would be incorporated in revisions to Title 17, chapter 8, subchapters 6, 7, 8, 9, and 12. Major New Source Review permitting requirements also are triggered if a major stationary source undertakes a modification that is projected to increase emissions of a regulated New Source Review pollutant above an emissions threshold, characterized as the "significance level." For any particular pollutant, this level is zero unless EPA establishes a significance level on the basis of de minimis emissions or administrative necessity. Thus for any major source, any minor change that increases GHG emissions by any amount would, as a result, potentially require PSD review. This would result in thousands of modification projects that would have to comply with the PSD program. Therefore, to maintain consistency with EPA's proposed rules and out of administrative necessity, the board is proposing to establish significance levels in Title 17, chapter 8, subchapters 8 (Prevention of Significant Deterioration or PSD) and 9 (Nonattainment Area New Source Review or NSR), within the range of 10,000 to 25,000 tons per year, and is requesting comment on the appropriate level within that range. The proposed range is the same as the significance level range in EPA's October 27, 2009, proposal and is intended to provide the board with the flexibility to consider public comments and any final EPA significance level that is promulgated prior to final board action. To alleviate the impact of a new regulatory program on currently unregulated municipal solid waste landfills and publicly owned treatment works (POTW), the board is proposing to reduce the application fee on new NSR/PSD permits for those facilities under Title 17, chapter 8, subchapter 5, from $15,000 to $500. Based on the relative low level of complexity of emission sources at landfills and POTWs, the level of department resources required to issue an initial NSR or PSD permit for that type of a facility would be no greater than the level of department resources required to issue an NSR or PSD permit modification for an existing source, for which the department currently charges a $500 application fee. Under New Rules I, V, IX, XIII, and XVII, the proposed rule amendments and new rules would become effective on the earlier of the dates that compliance is first required with the Light Duty Vehicle Rule, new source review requirements, or Title V permitting requirements. Under New Rules II, VI, X, XIV, and XIX, the proposed rule amendments and new rules would apply retroactively on the earlier of the dates that compliance is first required with the Light Duty Vehicle Rule, new source review requirements, or Title V permitting requirements, so that minor source permits issued in the interim would not be issued with inappropriate major source GHG permitting provisions. Under New Rules III, VII, XI, XV, and XIX, to maintain consistency with federal regulation of GHG, if EPA stays, withdraws, or reconsiders its Light-Duty Vehicle Rule and its Tailoring Rule, or if both regulations are vacated by a court of competent jurisdiction, all of the GHG rule provisions adopted in this rulemaking would become void. Under New Rules IV, VIII, XII, XVI, and XX, the proposed rule revisions would be temporary and would terminate on December 31, 2011, to achieve the immediate administrative goals of reducing the permitting burden on the regulated community, on the currently nonregulated entities that would be affected, and on the department and allow for a later stakeholder process to address GHG permitting specifically for Montana. 6. 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, 7. 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. 8. 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 [email protected], or may be made by completing a request form at any rules hearing held by the board. 9. 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, December 14, 2009.
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