60144 Federal Register / Vol. 65, No. 196 / Tuesday, October 10, 2000 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[MT–001–0024, MT–001–0025, MT–001–

0026; FRL–6883–6]

Clean Air Act Approval and

Promulgation of Air Quality

Implementation Plan; Montana; East

Helena Lead State Implementation Plan

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The EPA is proposing to

partially approve and partially

disapprove the East Helena Lead (Pb)

State Implementation Plan (SIP)

revisions submitted by the Governor of

Montana on August 16, 1995, July 2,

1996, and October 20, 1998. The EPA is

proposing to grant a simultaneous

partial approval and partial disapproval

of these SIP revisions because, while

they strengthen the SIP, they also do not

fully meet the Act provisions regarding

plan requirements for nonattainment

areas. The intended effect of this action

is to make federally enforceable those

provisions that EPA is proposing to

partially approve, and to not make

federally enforceable those provisions

that EPA is proposing to partially

disapprove. The EPA is taking this

action under sections 110, 179, and 301

of the Clean Air Act (Act).

DATES: Written comments must be

received by November 9, 2000.

ADDRESSES: Written comments may be

mailed to Richard R. Long, Director, Air

and Radiation Program, Mailcode 8PAR, Environmental Protection Agency,

Region VIII, 999 18th Street, Suite 300,

Denver, Colorado, 80202. 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 VIII, 999

18th Street, Suite 300, Denver,

Colorado, 80202–2466. Copies of the

State documents relevant to this action

are available for public inspection at the

Air and Waste Management Bureau,

Montana Department of Environmental

Quality, 1520 E. 6th Avenue, Helena,

Montana, 59620–0901.

FOR FURTHER INFORMATION CONTACT:

Kerri Fiedler, EPA Region VIII, (303)

312–6493 or Laurie Ostrand, EPA,

Region VIII, (303) 312–6437.

SUPPLEMENTARY INFORMATION:

Throughout this document, wherever

‘‘we’’, ‘‘our’’, or ‘‘us’’ is used, we mean

EPA.

Table of Contents

I. Background

II. Criteria for Approval

III. Evaluation of the State’s Submittals

A. Why is EPA Proposing to Partially

Approve the State of Montana’s Plan?

1. August 16, 1995 SIP Revision

2. July 2, 1996 SIP Revision

3. October 20, 1998 SIP Revision

B. Why is EPA Proposing to Partially

Disapprove the State of Montana’s Plan?

C. What Happens When EPA Partially

Approves and Partially Disapproves the

State of Montana’s Plan?

D. Emission Inventory

1. ASARCO

2. East Helena Area

3. American Chemet

E. Reasonably Available Control Measures

(RACM)/Reasonably Available Control

Technology (RACT)

F. Emission Limit Requirements

G. Enforceability

H. Reasonable Further Progress (RFP)

I. Contingency Measures

J. Attainment of the Pb NAAQS

IV. Request for Public Comment

V. Administrative Requirements

A. Executive Order 12866

B. Executive Order 13045

C. Executive Order 13084

D. Executive Order 13132

E. Regulatory Flexibility

F. Unfunded Mandates

I. Background

On October 5, 1978, we promulgated

primary and secondary National

Ambient Air Quality Standards

(NAAQS) for Pb and its compounds,

measured as elemental Pb (40 CFR

50.12). The primary and secondary

standards were set at 1.5 micrograms

per cubic meter (μg/m3), maximum

arithmetic mean, averaged over a

calendar quarter. On July 9, 1984, we

approved a revision to the Montana SIP

which set forth a Pb control strategy to

provide for attainment and maintenance

of the Pb NAAQS in East Helena. In

response to continuing violations of the

Pb NAAQS following implementation of

the July 9, 1984 SIP, on October 1, 1988,

we sent a letter to the Governor of

Montana, providing notification that the

Pb SIP for East Helena was inadequate

to attain and maintain the Pb NAAQS.

We published this notification on

December 2, 1988 in 53 FR 48642.

Pursuant to the new authority in the

1990 amendments to the Act, on

November 6, 1991, we designated the

East Helena area as a nonattainment

area for Pb. This designation was

effective on January 6, 1992 and

required the State to submit a Part D SIP

by July 6, 1993. The SIP must provide

for attainment of the Pb NAAQS as

expeditiously as practicable, but no later

than January 6, 1997.

The Montana Department of

Environmental Quality (MDEQ)

developed the Pb SIP for East Helena in

consultation with the ASARCO primary

Pb smelter, the major Pb source in East

Helena, and American Chemet, a paint

pigment plant. The State’s efforts have

been coordinated with us to ensure

compliance with SIP requirements. On

August 16, 1995, the Governor of

Montana submitted the first Pb SIP

revision. This submittal consists of (1) a

Montana Board of Environmental

Review (MBER) approved order which

adopted the stipulation between MDEQ

and ASARCO, as well as controlled

emissions on some of the streets of East

Helena, and (2) a MBER approved order

which adopted the stipulation between

MDEQ and American Chemet. On July

2, 1996, the Governor of Montana

submitted the second Pb SIP revision.

This submittal consists of MBER orders

and stipulations, between MDEQ and

ASARCO, approved on April 12, 1996

and June 21, 1996. The Governor of

Montana submitted the third Pb SIP

revision on October 20, 1998 which

included an August 28, 1998 board

order adopting the stipulation between

MDEQ and ASARCO. The third Pb SIP

revision, dated October 20, 1998, was

submitted to make the SIP consistent

with permit conditions in Montana Air

Quality Permits #2557–08, dated

January 3, 1997, and #2557–09, dated

April 6, 1998. On April 28, 2000, MDEQ

submitted a formatting revision to the

SIP correcting a typographical error in

the footnotes of the SIP.

II. Criteria for Approval

These Pb SIP revisions were reviewed

using the criteria established by the Act.

The requirements for all SIPs are

contained in section 110(a)(2) of the

Act. Section 172(c) of the Act specifies

the provisions applicable to areas

designated as nonattainment for any of

the NAAQS. Further guidance and

criteria are set forth in the ‘‘State

Implementation Plans for Lead

Nonattainment Areas; Addendum to the

General Preamble for the

Implementation of Title I of the Clean

Air Act Amendments of 1990’’ (58 FR

67748).

III. Evaluation of the State’s Submittal

Our Technical Support Document

(TSD) for this action discusses our

criteria for deciding whether to approve

or disapprove the East Helena Pb SIP

and whether or not the State of

Montana’s submittals satisfy those

criteria. The TSD also discusses most of

the issues we raised on various drafts

and final submittals of the East Helena

Pb SIP revisions and how the State of

Montana addressed these issues. See the

TSD for a more detailed review of the

Federal Register / Vol. 65, No. 196 / Tuesday, October 10, 2000 / Proposed Rules 60145

Pb SIP and how it satisfies the Act’s

requirements.

A. Why Is EPA Proposing To Partially

Approve the State of Montana’s Plan?

We are proposing to partially approve

the East Helena Pb SIP revisions,

submitted by the Governor of Montana

on August 16, 1995, July 2, 1996, and

October 20, 1998. Except for those

provisions that we are proposing to

partially disapprove, we believe the

submitted plans satisfy the Act’s

requirements for Pb nonattainment

areas.

1. August 16, 1995 SIP Revision

On August 16, 1995, the Governor of

Montana submitted the first Pb SIP

revision. This submittal consists of (1) a

MBER approved order which adopted

the stipulation between MDEQ and

ASARCO to limit Pb emissions from

ASARCO’s Pb smelting operations as

well as controlled emissions on some of

the streets of East Helena, and (2) a

MBER approved order which adopted

the stipulation between MDEQ and

American Chemet to limit Pb emissions

from the #1 Copper Furnace Baghouse

Stack.

2. July 2, 1996 SIP Revision

On July 2, 1996, the Governor of

Montana submitted the second Pb SIP

revision. This submittal contains a

series of orders approved by the MBER

adopting stipulations between MDEQ

and ASARCO. An April 12, 1996 board

order and stipulation allows ASARCO

operational flexibility, while still

assuring attainment and maintenance of

the NAAQS for Pb in the East Helena

area. A June 21, 1996 board order and

stipulation revises ASARCO’s method

for handling furnace Pb based on safety

and engineering concerns.

On March 24, 1998, we sent MDEQ

comments on this Pb SIP revision asking

for clarification on emission limits and

inventory, air modeling, ambient data,

department discretion, and other

general issues. Based on the November

16, 1999 response from MDEQ, we have

determined the SIP revision is

acceptable, except for the department

discretion issues and enforceability

concerns with two test methods. We are

proposing to grant a partial disapproval

due to the department discretion issues

and enforceability concerns with two

test methods in the East Helena Pb SIP.

3. October 20, 1998 SIP Revision

On October 20, 1998, the Governor of

Montana submitted the third Pb SIP

revision which included a June 12, 1998

board order adopting the stipulation

between MDEQ and ASARCO. These

modifications allow ASARCO to change

the emission control and ventilation

system for a specific operation. These

changes to the emission control system

will not result in any changes in

emission limitations at the ASARCO

facility. On April 28, 2000, MDEQ

submitted a formatting revision to the

SIP correcting a typographical error in

the footnotes of the SIP.

On September 9, 1998, the MDEQ

responded to our comments on the draft

version of this Pb SIP revision. We were

concerned the proposed changes

contravened our stack height rules, and

questioned ASARCO’s possible use of

dispersion techniques, such as changes

in volumetric flow rate and final

exhaust gas plume rise. The MDEQ

adequately documented its basis for

concluding that the proposed changes

do not constitute prohibited dispersion

techniques and assured us that the

proposed changes comply with the stack

height rules. We have concluded, based

on the information MDEQ provided,

that these revisions result in a negligible

change in volumetric flow rate and final

exhaust gas plume rise, and result in no

change in the operation of specific

equipment or other parameters that

might affect the exhaust gas stream.

Therefore, we agree that the changes at

ASARCO do not contravene section 123

of the Act or our stack height rules.

Section 110(k) of the Act addresses

our actions on submissions of SIP

revisions. The Act also requires States to

observe certain procedures in

developing SIP revisions. Section

110(a)(2) of the Act requires that each

SIP revision be adopted after reasonable

notice and public hearing. We have

evaluated the State’s submissions and

determined that the necessary

procedures were followed.

B. Why Is EPA Proposing To Partially

Disapprove The State of Montana’s

Plan?

We are proposing to partially

disapprove this SIP revision, because it

does not fully meet the Act provisions

regarding plan submissions and

requirements for nonattainment areas.

The current version of East Helena’s Pb

SIP does not conform to the requirement

of section 110(a)(2) of the Act that SIP

limits must be enforecable nor to the

requirement of section 110(i) that the

SIP can only be modified through the

SIP revision process. In our March 24,

1998 letter to MDEQ, we raised

concerns about places in the stipulation

where MDEQ has the discretion to

modify existing provisions, or add

future documents or compliance

monitoring methods to the Pb SIP. The

stipulations were not clear whether any

of these changes would be submitted as

SIP revisions or by any other process for

us to review and approve. We indicated

in places where the stipulation allowed

MDEQ to exercise discretion, the words

‘‘and EPA’’ must be added. The State

did not revise the SIP to address our

concern and in its November 16, 1999

response, MDEQ indicated that the

department discretion issues would be

addressed at a later date. We are

proposing to partially disapprove the

SIP because of the provisions which

allow department discretion and two

provisions which contain enforceability

issues related to the test method.

C. What Happens When EPA Partially

Approves and Partially Disapproves the

State of Montana’s Plan?

By partially approving the SIP, we are

making those portions of the State’s

submittal federally enforceable (and

enforceable by citizens under the Act).

These portions of the SIP that we

partially disapprove are not made

federally enforceable. We believe that

the proposed partial approval of the East

Helena Pb SIP, except for those

provisions that we are proposing to

partially disapprove, satisfy the Act’s

criteria for Pb nonattainment SIPs. Even

though we are proposing to partially

disapprove portions of the SIP, the State

is not required to revise the SIP to fully

meet the Act’s Pb nonattainment

requirements. Therefore, because the

State is not required to complete any

further SIP revisions as a result of the

partial disapproval, sanctions and

Federal Implementation Plan clocks

(FIP) under sections 179(a) and 110(c),

repsectively, will not be started if we

finalize our proposal to partially

disapprove the East Helena Pb SIP.

D. Emission Inventory

Section 172(c)(3) of the Act requires

that nonattainment plan provisions

include a comprehensive, accurate,

current inventory of actual emissions

from all sources of relevant pollutants in

the nonattainment area. The MDEQ

identified three major sources of Pb in

the East Helena area: the ASARCO

Smelter complex; re-entrained dust from

the roads of East Helena; and the

American Chemet copper oxide

manufacturing facility.

1. ASARCO

The North American Weather

Consultants (NAWC) conducted a

detailed Pb emission inventory of the

ASARCO smelter facility in the summer

and fall of 1990. The NAWC developed

a complete testing protocol describing

test locations and actual test methods.

The final emission inventory is located

60146 Federal Register / Vol. 65, No. 196 / Tuesday, October 10, 2000 / Proposed Rules

1 In responding to our March 24, 1998 letter,

MDEQ could not find documentation of the

methods utilized to calculate the East Helena area

values in the attainment demonstration. The MDEQ

recalculated the post-control emissions (attainment

demonstration) for the paved roads and parking lots

in East Helena. In the recalculation, MDEQ found

that the sector-specific emission rates are less than

the corresponding values used in the attainment

demonstration, except for sector #49. Although

sector #49 emission rates are now calculated to be

higher (20 percent higher by one method, one

percent higher by another method) than those used

in the attainment demonstration, MDEQ does not

believe they are so much higher that the attainment

demonstration is invalid. We believe that the

recalculated values are acceptable and that any

future modeling for East Helena should rely on the

recalculated emission inventory for the East Helena

paved roads and parking lots.

in the ‘‘ASARCO East Helena Primary

Lead Smelter Task 5 Summary Report

Volumes 1–5,’’ NAWC, May 1992. We

reviewed the testing protocol and

emissions inventory in detail and

provided numerous comments to the

State. The State and ASARCO

responded to most of our comments. We

believe the report provides, for the most

part, a complete and accurate Pb

emission inventory of the entire facility

for use in dispersion modeling studies.

2. East Helena Area

The MDEQ conducted a base year Pb

emission inventory of the town of East

Helena. The final report is entitled ‘‘East

Helena Lead Emission Inventory’’ and

dated February 1992. This effort focused

mainly on the Pb emissions from reentrained road dust but also included

Pb emission estimates from automobile

exhaust, wind erosion of barren ground,

and agricultural tillage. The base year

selected for this study ran from July 1,

1990 through June 30, 1991. Results of

the study show that re-entrained road

dust accounts for 93.6% of the total

annual Pb emissions, while automobile

tailpipe emissions contribute 3.8%. The

remaining 2.6% of the total Pb

emissions comes from parking lots,

unpaved roads, wind erosion, and

agricultural sources.1

3. American Chemet

The MDEQ conducted an emissions

inventory of the American Chemet

facility between July 1, 1990 and June

30, 1991. The MDEQ used historical

testing data, along with a log of actual

hours of operation, and material

processed, to estimate Pb emissions

during the study period. The MDEQ

inventoried a total of 16 point sources,

including scrubber and baghouse

exhausts, during the study period. A

supplemental report prepared by the

Department, entitled ‘‘American Chemet

Corporation 1990 Emission Inventory,’’

contains complete details of the

emission inventory for American

Chemet.

Results of the emission inventory

showed that only one point source, the

#1 Copper Furnace Baghouse Stack

(previously referred to as the

pyrometallurgical process baghouse

stack), had Pb emissions significant

enough to be considered in the Pb SIP

revision for East Helena. None of the

other sources at this facility were

considered further in the Pb SIP. We

support the emission inventories

prepared for the sources in the Pb

nonattainment area because they appear

to be accurate and MDEQ has addressed

our previously identified concerns.

E. Reasonably Available Control

Measures (RACM)/Reasonably Available

Control Technology (RACT)

Section 172(c)(1) of the Act mandates

that SIPs provide for the

implementation of RACM as

expeditiously as practicable, including

RACT. Our Addendum to the General

Preamble for the implementation of

Title I of the Act defines RACT for Pb

as a control technology which is

necessary to achieve the NAAQS (58 FR

67750, December 22, 1993). The same

document provides that RACM for Pb

should be determined by evaluating the

available control measures for

reasonableness, considering their

technological feasibility, and the cost of

control in the area to which the SIP

applies. In determining what is

reasonably available (for RACM), our

guidance indicates that areas should

evaluate all the measures contained in

Appendix 1 to the Lead Addendum to

the General Preamble, and provide a

reasoned justification for rejection of

any available control measure. Based on

our comparison of the available control

measures (identified in Appendix 1) and

those incorporated into this Pb SIP, we

find that, for the most part, ASARCO is

implementing most of the available

measures. Therefore, we believe the

State has demonstrated that the control

measures applied to ASARCO,

American Chemet, and the streets of

East Helena are reasonable and will

maintain the Pb NAAQS.

F. Emission Limit Requirements

The control strategy for the Pb SIP

requires ASARCO to enclose various

buildings or areas, install baghouses,

develop a new technology for handling

furnace Pb, capture fugitive emissions,

build dust conveying and handling

systems, and eliminate some emission

sources. In addition, there are emission

limitations on various emission points,

process weight limitations, time-of-day

restrictions and wind speed limitations

on material handling, minimum

ventilation requirements on building

ventilation systems, and property access

restrictions. There is also a five percent

visible emission limitation on the paved

and unpaved roads and areas within the

ASARCO facility, and a requirement to

treat the unpaved areas and sweep the

paved areas to reduce fugitive Pb

emissions.

The MDEQ has offered American

Chemet two options as part of the

control strategy. If American Chemet

chooses not to build a new stack, it is

subject to a more stringent emission

limit on its existing stack. If it chooses

to build a higher stack, it has a less

stringent emission limit on the new

stack. Regardless of the option chosen,

modeling has shown that the area will

continue to attain the Pb NAAQS.

Finally, American Chemet will also

adopt a limit on the Pb content of its

plant feed material.

With respect to the East Helena road

dust, MDEQ requires ASARCO to

sample road dust on paved public

streets and roads, and maintain the

streets so that they meet the quarterly

average Pb loading limits.

G. Enforceability

All measures and other elements in

this Pb SIP revision must be enforceable

by the State and us (see sections

172(c)(6), 110(a)(2)(A), and 57 FR

13556). The ASARCO and American

Chemet stipulations explicitly provide

for applicability of the regulations,

compliance dates, compliance periods,

recordkeeping requirements, test

methods, and malfunction provisions.

In our judgement, these provisions are

sufficiently clear and prescriptive to

meet reasonable standards of

enforceability, with two exceptions. The

current version of East Helena’s Pb SIP

does not conform to requirements of the

Act nor our policy with respect to

department discretion and

enforceability. In our March 24, 1998

letter to MDEQ, we raised concerns

about places in the stipulation where

MDEQ has the discretion to modify

existing provisions or add future

documents or compliance monitoring

methods to the Pb SIP. The stipulations

were not clear whether any of these

changes would be submitted as SIP

revisions or by any other process for us

to review and approve. We indicated in

places where the stipulation allowed

MDEQ to exercise discretion, the words

‘‘and EPA’’ must be added. The

provisions containing department

Federal Register / Vol. 65, No. 196 / Tuesday, October 10, 2000 / Proposed Rules 60147

2We interpret ‘‘evaluated for significance’’ to

mean that the State must submit to us all

modifications to SIP text (including minor and

clerical corrections or modifications) and all MDEQ

approvals of alternative requirements and

methodologies. If the modification to text or

alternative requirement or methodology is proposed

as a ‘‘minor modification’’ (or clerical correction)

we will inform the State within 45 days from the

date of submittal of our determination whether the

modification or alternative is major or minor, and

if it is minor, of our determination within 45 days

does not mean that the modification or alternative

is minor and is approved.) If we do not approve the

modification of text or alternative requirement or

mentodology as minor, the State must adopt the

modification as a SIP revision in accordance with

section 110(a)(2) of the Act and submit it to us for

approval. We will then act on the SIP revision

rulemaking under the Administrative Procedure

Act.

3As indicated in our March 24, 1998 letter, to use

the Title V approach, the stipulation or SIP

document should contain enabling language that

would allow the SIP to be revised through the Title

V permit process. Our march 5, 1996 memorandum,

‘‘White Paper Number 2 for Improved

Implementation of the Part 70 Operating Permits

Program,’’ (White Pager) suggests enabling language

in Attachment B II. This White Pager (section II.A

and Attachment A) discuss the streamlining provess

that must be followed in order to revise SIP’s

through the Title V permit. Note, however, that

until the sate is actucally using Title V permits for

these sources, a source-specicfic SIP revision would

be necessary.

4See footnote 2 above.

4See footnote 2 above.

5See footnote 2 above.

6See footnote 2 above.

7See footnote 2 above.

8See footnote 2 above.

discretion are discussed in Table 1

below:

TABLE 1.—DEPARTMENT DISCRETION

Provision No. Description

ASARCO Stipulation Provision 15 and American

Chemet Stipulation Provision 20.

Indicates that stipulations may be modified when sufficient grounds exist. For example, if the State demonstrates

through modeling or other means that an alternative plan could still meet the NAAQS, the plan could be modified. Although our March 24, 1998 letter may have indicated that these provisions would be acceptable if

MDEQ could confirm our interpretations, we now believe these provisions need to be revised in the same way

that the State revised similar in stipulations in the Billings SIP.

ASARCO Stipulation Provision 16.Indicates that revisions to attachments of the stipulation can occur, once approved by MDEQ. The stipulation is

not clear as to whether MDEQ approval means the revised attachments will be deemed incorporated into the

SIP. We believe that since the attachments are a part of the SIP and pertain mostly to enforceability provisions,

any revision to an attachment should be evaluated for significance 2 and if determined to be significant, the revision must be approved as a SIP revision or approved through the Title V process.3 We suggested to MDEQ

that where the ‘‘Department’’ appears in the stipulations ‘‘and EPA’’ should be added.

ASARCO Exhibit A, Section

6.

References Attachment 6 Quality Assurance/Quality Control (QA/QC) and Standard Operating Procedures (SOP)

for Continuous Opacity Monitoring Systems. Any revision to an attachment and provision should be evaluated

for significance,4 and if determined to be significant, the revision must be approved as a SIP revision or approved through the Title V process. EPA has suggested to MDEQ that where the ‘‘Department’’ appears in the

stipulations ‘‘and EPA’’ should be added.

ASARCO Exhibit A, Section

7(A)(2).

Indicates certain test methods are to be used or other methods approved by MDEQ. Any revision to a testing

method or provision should be evaluated for significance,5 and if determined to be significant, the revision must

be approved as a SIP revision or approved through the Title V process. EPA has suggested to MDEQ that

where the ‘‘Department’’ appears in the stipulations ‘‘and EPA’’ should be added.

ASARCO Exhibit A, Section

11(C).

Indicates if the Baghouse Maintenance Plan, Attachment 7, is revised it needs to be reviewed and approved by

MDEQ. Any revision to an attachment should be evaluated for significance,6 and if determined to be significant,

the revision must be approved as a SIP revision or approved through the Title V process. EPA has suggested

to MDEQ that where the ‘‘Department’’ appears in the stipulations ‘‘and EPA’’ should be added.

ASARCO Exhibit A, Section

12(A)(7).

Indicates the Baghouse Maintenance Plan, Attachment 7, will need further revisions. Once revised, it will be reviewed and approved by MDEQ. Any revision to an attachment should be evaluated for significance,7 and if

determined to be significant, the revision must be approved as a SIP revision or approved through the Title V

process. EPA has suggested to MDEQ that where the ‘‘Department’’ appears in the stipulations ‘‘and EPA’’

should be added.

ASARCO Exhibit A, Section

12(B).

Indicates if attachments are revised they need to be reviewed and approved by MDEQ. Any revision to an attachment should be evaluated for significance,8 and if determined to be significant, the revision must be approved

as a SIP revision or approved through the Title V process. EPA has suggested to MDEQ that where the ‘‘Department’’ appears in the stipulations ‘‘and EPA’’ should be added.

In addition to the department

discretion issues, we believe that

sections 2(A)(22) and 2(A)(28), of

ASARCO Exhibit A, contain

enforceability problems. These sections,

which discuss how moisture content

and silt content will be determined,

indicate that sampling will be

performed by specified methods or

equivalent methods. The definition is

not clear who will determine that the

equivalent methods are acceptable. Any

revision to a testing method or provision

should be evaluated for significance and

if determined to be significant, the

revision must be approved as a SIP

revision or approved through the Title

V process. (See footnote 2 above.)

Because these provisions could allow

changes in requirements without EPA

and public review or EPA approval, and

could allow use of test methods not

accepted by us, the East Helena Pb SIP

revisions present Federal enforceability

issues and thus fail to comply with the

general enforceability provisions of

section 172(c)(6) of the Act. Therefore,

we are proposing to partially approve

and partially disapprove the Pb SIP

revision under section 110(k)(3) of the

Act. With this partial approval and

partial disapproval, we are

incorporating into the federally

approved SIP all provisions of the

stipulation, exhibits, and attachments

except those provisions that allow the

Department or sources to modify the SIP

without seeking SIP approval through

us. (Please see the proposed regulatory

text at the end of this notice for the

exact provisions we are proposing to

partially disapprove.) We note that

portions of the SIP we are proposing to

partially approve indicate that under

certain circumstances ASARCO may

need to revise attachments to Exhibit A.

Since we are not proposing to approve

the Department’s discretion to allow

these revisions unilaterally, we interpret

these provisions to mean that revisions

60148 Federal Register / Vol. 65, No. 196 / Tuesday, October 10, 2000 / Proposed Rules

9 In addition, any future permit or SIP action must

assure that emissions from the Acid Dust Bin

Baghouse Stack (17P) must be modeled as an

independent source and at a stack height equal to

65 meters. Please see TSD for further discussion.

to the attachments for Exhibit A will be

adopted at the State level and submitted

as a SIP revision to us for approval.

Additionally, we do not believe that our

proposed partial disapproval of the

above-mentioned provisions would

render the SIP more stringent than the

State of Montana intends, since our

action does not change the stringency of

any of the substantive requirements the

State of Montana has imposed and is

currently able to enforce under the SIP.

H. Reasonable Further Progress (RFP)

The Pb SIP must provide for RFP,

defined in section 172(c)(2) of the Act

as such reductions in emissions of the

relevant air pollutant as are required by

Part D, or may reasonably be required by

the Administrator for the purpose of

ensuring attainment of the applicable

NAAQS by the applicable date. As

discussed in the Lead Addendum to the

General Preamble, we construe RFP as

‘‘adherence to an ambitious compliance

schedule’’ which is expected to

periodically yield significant emission

reductions, and, as necessary, linear

progress. The Pb SIP provides for an

ambitious compliance schedule but

does not quantify the achievable

emission reductions for each measure,

since most of the measures should be

implemented by the attainment date and

not on a staggered schedule before the

attainment date. However, since the

attainment date of January 6, 1997 has

passed and all evidence indicates that

the area is attaining the Pb NAAQS, we

conclude this Pb SIP has met the RFP

requirements.

I. Contingency Measures

As provided in section 172(c)(9) of the

Act, all nonattainment area SIPs must

include contingency measures.

Contingency measures should consist of

other available measures that are not

part of the area’s control strategy for

attaining the NAAQS. These measures

must take effect without further action

by the state or us, upon a determination

that the area has failed to meet RFP or

attain the Pb NAAQS by the applicable

statutory deadline. The MDEQ will

implement the contingency measures

for the East Helena Pb SIP following a

Pb NAAQS violation after the first

calendar quarter of 1997, or if there is

a lack of RFP. The contingency

measures consist of two tiers, Tier I and

Tier II. The MDEQ has designed the

two-tier approach to address possible

multiple violations, and to target any

significant additional sources of Pb as

predicted by the model.

Tier I contingency measures contain

measures such as reducing outdoor

storage of sinter material, ceasing

operation during the night shift,

imposing a more stringent Pb loading

limit on the East Helena paved roads,

paving or treating some unpaved streets

in East Helena, and reducing spills on

East Helena streets. The Tier II

contingency measures contain measures

such as imposing an even more

stringent Pb loading limit on the East

Helena paved roads, eliminating all

storage and handling of sinter outdoors,

and paving or covering 50,000 square

feet of surface area within the ASARCO

facility. If ASARCO implements these

measures as a result of a failure to make

RFP, once the RFP deficiency has been

corrected, the contingency measures

will be lifted. If these measures are

implemented due to a violation of the

Pb NAAQS, the measures will remain in

effect until the Board approves a revised

Pb SIP. We believe the Pb SIP meets the

contingency measures requirements.

J. Attainment of the Pb NAAQS

Section 192(a) of the Act requires that

SIPs must provide for attainment of the

Pb NAAQS as expeditiously as

practicable but not later than five years

from the date of an area’s nonattainmnet

designation. Through modeling, the

State has demonstrated that the

emission points (at ASARCO and

American Chemet), and the area

emissions from the streets of East

Helena, at their allowable limits, will

protect the Pb NAAQS, i.e., there will be

no violations of the Pb NAAQS.

Subsequent to the initial modeled

attainment demonstration, there have

been a few changes to the control

strategy, but we believe they will not

cause or contribute to a violation of the

NAAQS. First, ASARCO increased the

percent Pb per pot processed which

correlates to an increase in the Pb

emission limit at the Laboratory Assay

Stacks. In our March 24, 1998 letter to

MDEQ, we requested that MDEQ

provide us with the modeling diskettes.

In its November 16, 1999 response,

MDEQ indicated there are no diskettes

because it did not rerun the model, but

simply extracted the values from the

previous model, and scaled up the

predicted concentrations. We have

determined this to be sufficient because:

(1) The emission point is one of the

smaller sources, (2) there is a linear

relationship between the percent Pb per

pot processed and the Pb emission limit,

(when percent Pb per pot processed

increases, the Pb emission limit

increases at the same rate) and (3) when

the limit is scaled up, there was not an

exceedance of the Pb NAAQS.

Secondly, American Chemet may

elect to raise its stack. The American

Chemet stipulation allows American

Chemet to choose between one of two

emission limits depending on the stack

height (20 meters (m) or 8.8 m). The July

1995 air modeling report shows the

American Chemet Copper Furnace stack

was only modeled at 20 m. In our March

24, 1998 letter to MDEQ, we questioned

if the American Chemet Copper Furnace

stack was modeled at the 8.8 m stack

height. In its November 16, 1999

response, MDEQ indicated the stack was

modeled at its current height of 8.8 m

in the 1993 modeling effort. The 1993

modeling report and diskettes were

forwarded to us in 1994. We have

evaluated the modeled ambient impacts

from the 8.8 m stack in conjunction

with the 1995 modeled ambient impacts

and believe the attainment modeling

demonstration is sufficient and satisfies

our concerns. The 1993 study showed

that the Pb NAAQS could be attained

when the American Chemet stack is

modeled at 8.8 m. There is very little

difference in total predicted Pb

concentrations between an 8.8 m stack

height and a 20 m stack height, because

this source represents less than 0.5

percent of the emissions that were

modeled in the attainment

demonstration. The difference in

modeled concentration is negligible.

Finally, in its November 16, 1999

letter, MDEQ indicated it recalculated

the East Helena area emissions because

it could not recreate how the control

emission inventory (attainment

inventory) was generated in the past.

Except for one road segment, all other

East Helena paved roads and parking

lots were recalculated to have fewer

emissions than those used in the

attainment demonstration. We accept

the recalculation and do not think it is

necessary to remodel for that one road

segment, because it appears likely that

the emission increases on the road

section would be more than offset in the

modeling results by the emission

decreases from the parking lots and

other road sections. The net result

would likely be slightly lower predicted

Pb concentrations at the highest

concentration receptor sites. With these

changes, the attainment modeling shows

the SIP will protect the Pb NAAQS. The

most sensitive receptor in the modeling

domain was modeled at 1.47 μg/m3 of

Pb, demonstrating compliance with the

Pb NAAQS of 1.50 μg/m3. However, any

future permit or SIP action that involves

modeling must fully incorporate all the

revisions mentioned above. 9

Federal Register / Vol. 65, No. 196 / Tuesday, October 10, 2000 / Proposed Rules 60149

Under section 179(c)(1), we have the

responsibility for determining whether a

nonattainment area has attained the Pb

NAAQS. We must make an attainment

determination as expeditiously as

practicable, but no later than 6 months

after the attainment date for the area.

The attainment date for East Helena was

January 6, 1997. We will make the

attainment determination for a

nonattainment area based solely on an

area’s air quality data. Based on the air

quality data currently in the AIRS

database and pursuant to section

179(c)(1) of the Act, we have

determined that the East Helena Pb

nonattainment area has attainined the

Pb NAAQS through calendar year 1999.

While we may determine that an

area’s air quality data indicate the area

may be meeting the Pb NAAQS for a

specified period of time, this does not

eliminate the State’s responsibility

under the Act to continue to implement

the requirements under the approved Pb

SIP. Even if we determine that an area

has attained the standard, the area will

remain designated as nonattainment

until the State has requested, and we

approve the State’s request, for redesignation to attainment. In order for

an area to be re-designated to

attainment, the State must comply with

the requirements listed under sections

107(d)(3)(E) and 172(a) of the Act.

IV. Request for Public Comment

We are soliciting public comment on

all aspects of this proposed SIP

rulemaking action. Send your comments

in duplicate to the address listed above

in the front of this Notice. We’ll

consider your comments in deciding our

final action if your letter is received

before November 9, 2000.

V. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget

(OMB) has exempted this regulatory

action from Executive Order 12866,

entitled ‘‘Regulatory Planning and

Review.’’

B. Executive Order 13045

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 does not involve

decisions intended to mitigate

environmental health or safety risks.

C. Executive Order 13084

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly

affects or uniquely affects the

communities of Indian tribal

governments, and that imposes

substantial direct compliance costs on

those communities, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to the Office of

Management and Budget, in a separately

identified section of the preamble to the

rule, a description of the extent of EPA’s

prior consultation with representatives

of affected tribal governments, a

summary of the nature of their concerns,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 13084 requires EPA to

develop an effective process permitting

elected officials and other

representatives of Indian tribal

governments ‘‘to provide meaningful

and timely input in the development of

regulatory policies on matters that

significantly or uniquely affect their

communities.’’

Today’s rule does not significantly or

uniquely affect the communities of

Indian tribal governments. This action

does not involve or impose any

requirements that affect Indian Tribes.

Accordingly, the requirements of

section 3(b) of Executive Order 13084

do not apply to this rule.

D. Executive Order 13132

Federalism (64 FR 43255, August 10,

1999) revokes and replaces Executive

Orders 12612 (Federalism) and 12875

(Enhancing the Intergovernmental

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 approves 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.

E. Regulatory Flexibility

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 proposed partial approval will

not have a significant impact on a

substantial number of small entities

because SIP approvals under sections

110 and 301 and subchapter I, part D of

the Clean Air Act do not create any new

requirements but simply approve

requirements that the State is already

imposing. Therefore, because the

Federal SIP approval does not create

any new requirements, 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.

60150 Federal Register / Vol. 65, No. 196 / Tuesday, October 10, 2000 / Proposed Rules

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).

This proposed partial disapproval

rule will not have a significant impact

on substantial number of small entities

because this partial disapproval only

affects two sources, ASARCO and

American Chemet. Only a limited

number of sources are impacted by this

action. Therefore, I certify that this

action will not have a significant

economic impact on a substantial

number of small entities. Furthermore,

as explained in this notice, the

submission does not meet the

requirements of the Clean Air Act and

EPA cannot approve the submission.

EPA has no option but to partially

disapprove the submittal. The limited

approval will not affect any existing

State requirements applicable to small

entities. Federal disapproval of a State

submittal does not affect its State

enforceability.

F. Unfunded Mandates

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 costeffective 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 approval

action proposed 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

proposes approval of pre-existing

requirements under State or local law,

and imposes no new requirements.

Accordingly, no additional costs to

State, local, or tribal governments, or to

the private sector, result from this

action.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Intergovernmental

relations, Lead, Reporting and

recordkeeping requirements.

Dated: September 28, 2000.

Jack W. McGraw,

Acting Regional Administrator, Region VIII.

Part 52, Chapter I, title 40 of the Code

of Federal Regulations is proposed to be

amended as follows:

PART 52—[AMENDED]

1. The authority citation for Part 52

continues to read as follows:

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

Subpart BB—Montana

2. Section 52.1370 is proposed to be

amended by adding paragraph (c)(51) to

read as follows:

§ 52.1370 Identification of plan.

* * * * *

(c) * * *

(51) The Governor of Montana

submitted the East Helena Lead SIP

revisions with letters dated August 16,

1995, July 2, 1996, and October 20,

1998. The revisions address regulating

lead emissions from ASARCO,

American Chemet, and re-entrained

road dust from the streets of East

Helena.

(i) Incorporation by reference.

(A) Board order issued on August 28,

1998, by the Montana Board of

Environmental Review adopting and

incorporating the stipulation of the

Montana Department of Environmental

Quality and ASARCO including exhibit

A and attachments to the stipulation,

excluding the following:

(1) The words, ‘‘or an equivalent

procedure’’ in the second and third

sentences in section 2(A)(22) of exhibit

A;

(2) The words, ‘‘or an equivalent

procedure’’ in the second and third

sentences in section 2(A)(28) of exhibit

A;

(3) The sentence, ‘‘Any revised

documents are subject to review and

approval by the Department as

described in section 12,’’ from section

6(E) of exhibit A;

(4) The words, ‘‘or a method approved

by the Department in accordance with

the Montana Source Testing Protocol

and Procedures Manual shall be used to

measure the volumetric flow rate at each

location identified,’’ in section 7(A)(2)

of exhibit A;

(5) The sentence, ‘‘Such a revised

document shall be subject to review and

approval by the Department as

described in section 12,’’ in section

11(C) of exhibit A;

(6) The sentences, ‘‘This revised

Attachment shall be subject to the

review and approval procedures

outlined in Section 12(B). The Baghouse

Maintenance Plan shall be effective only

upon full approval of the plan, as

revised. This approval shall be obtained

from the Department by January 6, 1997.

This deadline shall be extended to the

extent that the Department has exceeded

the time allowed in Section 12(B) for its

review and approval of the revised

document,’’ in section 12(A)(7) of

exhibit A;

(7) Section 12(B) of exhibit A.

(B) June 21, 1996 stipulation of the

Montana Department of Environmental

Quality and ASARCO including exhibit

A and attachments to the stipulation,

excluding paragraphs 15 and 16 of the

stipulation.

(C) Board order issued on August 4,

1995, by the Montana Board of

Environmental Review adopting and

incorporating the stipulation of the

Montana Department of Environmental

Quality and American Chemet

including exhibit A to the stipulation,

excluding paragraph 20 of the

stipulation.

(ii) Additional Material.

(A) All portions of the August 16,

1995 East Helena Pb SIP submitted

other than the orders, stipulations and

exhibit A’s and attachments to the

stipulations.

(B) All portions of the July 2, 1996

East Helena Pb SIP submitted other than

the orders, stipulations and exhibit A’s

and attachments to the stipulations.

(C) All portions of the October 20,

1998 East Helena Pb SIP submitted

other than the orders, stipulations and

exhibit A’s and attachments to the

stipulations.

(D) Montana Air Quality Permit

#2557–08, dated January 3, 1997.

(E) Montana Air Quality Permit

#2557–09, dated April 6, 1998.

(F) November 16, 1999 letter from Art

Compton, Division Administrator,

Planning, Prevention and Assistance

Division, Montana Department of

Environmental Quality, to Richard R.

Long, Director, Air and Radiation

Program, EPA Region VIII.

(G) September 9, 1998 letter from

Richard A. Southwick, Point Source SIP

Coordinator, Montana Department of

Environmental Quality, to Richard R.

Long, Director, Air and Radiation

Program, EPA Region VIII.

[FR Doc. 00–25929 Filed 10–6–00; 8:45 am]

BILLING CODE 6560–50–D