[Federal Register Volume 65, Number 196 (Tuesday, October 10, 2000)]
[Proposed Rules]
[Pages 60144-60150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25929]



[[Page 60144]]

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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.

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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 8P-AR, 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 (<greek-m>g/m\3\), 
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

[[Page 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

[[Page 60146]]

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 re-entrained 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\
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    \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.
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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

[[Page 60147]]

discretion are discussed in Table 1 below:
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    \2\ We 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.
    \3\As 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.
    \4\See footnote 2 above.
    \4\See footnote 2 above.
    \5\See footnote 2 above.
    \6\See footnote 2 above.
    \7\See footnote 2 above.
    \8\See footnote 2 above.

                     Table 1.--Department Discretion
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        Provision No.                         Description
------------------------------------------------------------------------
ASARCO Stipulation Provision   Indicates that stipulations may be
 15 and American Chemet         modified when sufficient grounds exist.
 Stipulation Provision 20.      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   Indicates that revisions to attachments
 16.                            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      Indicates certain test methods are to be
 7(A)(2).                       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      Indicates if the Baghouse Maintenance
 11(C).                         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      Indicates the Baghouse Maintenance Plan,
 12(A)(7).                      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      Indicates if attachments are revised they
 12(B).                         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

[[Page 60148]]

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 <greek-m>g/m<SUP>3</SUP> of Pb, demonstrating compliance with 
the Pb NAAQS of 1.50 <greek-m>g/m<SUP>3</SUP>. However, any future 
permit or SIP action that involves modeling must fully incorporate all 
the revisions mentioned above. \9\
---------------------------------------------------------------------------

    \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.

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[[Page 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 re-designation 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.

[[Page 60150]]

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 cost-effective 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:


Sec. 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