9970 Federal Register / Vol. 62, No. 43 / Wednesday, March 5, 1997 / Rules and Regulations

provisions to certain rulemaking

concerning contracts (see 41 U.S.C.

418b). These statutory provisions do not

impose notice-and-comment provisions

for rulemaking concerning public

property.

One commenter indicated that we

should retain the notice-and-comment

provisions for rulemaking concerning

public property and contracts. We are

committed to compliance with all legal

requirements concerning rulemaking,

including APA requirements. However,

we believe that self-imposition of any

other procedures for rulemaking should

be done on a case-by-case basis and we

do not believe that it is necessary or

prudent to self-impose additional

requirements by regulation.

The commenters also argued in favor

of retaining § 1.12 based on issues

relating to certain ‘‘non-legislative

rules’’ (rules of agency management;

interpretative rules; general statements

of policy; rules of organization,

procedure, or practice). In this regard,

the provisions of 5 U.S.C. 553 contain

exemptions from the notice-andcomment requirements for ‘‘nonlegislative rules.’’ The commenters

argued that § 1.12 added notice-andcomment requirements for rulemaking

regarding such ‘‘non-legislative rules’’

and further included specific reasons to

support the desirability of having

additional notice-and-comment for such

types of rulemaking.

Rulemaking documents establishing

‘‘non-legislative rules’’ are issued by the

Secretary and concurred in by the

General Counsel. The provisions of

§ 1.12 included internal instructions

which stated: ‘‘Exceptions to the policy

of permitting public participation in the

regulatory development may be

authorized by the Secretary or one of the

Secretary’s deputies if adequately

justified and concurred in by the

General Counsel.’’ The next sentence, in

part, states: ‘‘Such exceptions, unless

public comment is required by statute,

may be recommended when: (a) The

proposed regulations consist of

interpretative rules, general statements

of policy, or rules of Department of

Veterans Affairs organization procedure

or practice * * *.’’ The mere finding

that a rulemaking proceeding concerned

a ‘‘non-legislative’’ rule met the

‘‘adequately justified’’ standard for

foregoing the notice-and-comment

procedures. The elimination of § 1.12

would bring VA practice into

conformity with the requirements

generally imposed on the rest of

government, i.e., notice-and-comment

issues would be governed by the

provisions of 5 U.S.C. 553. Eliminating

the regulatory provisions imposing

internal procedural steps increases

government efficiency and would not

result in the diminution of the

substantive rights of any party.

Furthermore, the removal of § 1.12 is

warranted because it has generated

much confusion, particularly with

respect to ‘‘non-legislative rules.’

Accordingly, based on the rationale

set forth in the proposed rule and this

document, we are removing § 1.12.

This rulemaking action concerns VA

policy and internal VA procedures.

Although we provided notice-andcomment concerning this rulemaking

proceeding it was not required under

the provisions of the APA and,

consequently, no regulatory flexibility

analysis is required under the

Regulatory Flexibility Act (5 U.S.C. 601

et seq.). Nevertheless, the Secretary of

Veterans Affairs certifies that this rule

will not have a significant economic

impact on a substantial number of small

entities as they are defined in the

Regulatory Flexibility Act. This rule

will not have a direct effect on small

entities.

There is no Catalog of Federal

Domestic Assistance program number.

List of Subjects in 38 CFR Part 1

Administrative practice and

procedure, Claims, Freedom of

information, Government contracts,

Government employees, Government

property, Reporting and recordkeeping

requirements.

Approved: February 24, 1997.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set out in the

preamble, 38 CFR part 1 is amended as

set forth below:

PART 1—GENERAL PROVISIONS

1. The authority citation for part 1

continues to read as follows:

Authority: 38 U.S.C. 501(a), unless

otherwise noted.

§ 1.12 [Removed]

2. Section 1.12 and the undesignated

center heading preceding § 1.12 are

removed.

[FR Doc. 97–5341 Filed 3–4–97; 8:45 am]

BILLING CODE 8320–01–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[MO–015–1015a; FRL–5682–5]

Approval and Promulgation of

Implementation Plans; State of

Missouri

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: The EPA is approving the

Asarco Glover, Missouri, lead emission

control plan submitted by the state of

Missouri on August 14, 1996. The plan

was submitted by the state to satisfy

certain requirements under the Clean

Air Act (CAA) to reduce lead emissions

sufficient to bring the Glover area into

attainment with the National Ambient

Air Quality Standard (NAAQS) for lead.

DATES: This action is effective May 5,

1997 unless by April 4, 1997 adverse or

critical comments are received. If the

effective date is delayed, timely notice

will be published in the Federal

Register.

ADDRESSES: Copies of the documents

relevant to this action are available for

public inspection during normal

business hours at the: Environmental

Protection Agency, Air Planning and

Development Branch, 726 Minnesota

Avenue, Kansas City, Kansas 66101; and

the EPA Air & Radiation Docket and

Information Center, 401 M Street, SW.,

Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Josh

Tapp at (913) 551–7606.

SUPPLEMENTARY INFORMATION:

I. Background

Currently, the only significant source

of lead contributing to violations of the

lead NAAQS in the Glover area is a

primary lead smelter owned and

operated by the American Smelting and

Refining Company (Asarco). The smelter

processes lead concentrate recovered

from lead mines into pure lead or lead

compounds to meet its customer’s

specifications. The facility’s refining

capacity is approximately 140,000 tons

of refined lead per year.

The original Glover lead State

Implementation Plan (SIP) was

approved by the EPA in 1981.

Subsequent to SIP approval, the EPA

conducted modeling which predicted

continued violations of the standard.

Asarco and Missouri prepared several

SIP revisions; however, these revisions

were not approved because modeling

still showed violations in some areas

defined as ‘‘ambient air.’
Federal Register / Vol. 62, No. 43 / Wednesday, March 5, 1997 / Rules and Regulations 9971

In 1987, the state began to record

violations of the lead standard three

miles from the facility. These data

prompted Region VII to request more

monitors in closer proximity to the

source. On November 5, 1990, the EPA

requested that the state of Missouri

revise the SIP for this facility based on

modeling conducted for 1983 through

1987, and based on monitored

violations during 1988, 1989, and 1990.

On November 6, 1991, the EPA

designated the Liberty and Arcadia

Townships which surround the Glover

facility as nonattainment for lead. This

designation became effective on January

6, 1992.

The attainment plan was required to

be submitted 18 months after the

designation or by July 6, 1993. The state

failed to make the required submission

and on August 2, 1993, the EPA notified

the Governor by letter of this fact. This

notice initiated sanctions clocks in

accordance with section 179 of the CAA

and the Federal Implementation Plan

(FIP) clock in accordance with section

110 of the CAA.

Under section 179 of the CAA, the

EPA must impose sanctions on a

nonattainment area for which the state

has failed to submit a plan which has

been determined complete by the EPA.

The first of two sanctions must be

implemented within 18 months after the

date of the finding (or in this case, not

later than January 2, 1995), and the

second sanction must be implemented

within 6 months after the

implementation of the first sanction (or

in this case, not later than August 2,

1995).

On August 4, 1994 (59 FR 39832), the

EPA published a rulemaking which

identifies the order of sanctions as

follows: the first sanction to be imposed

is the 2:1 offset sanction which requires

2:1 offsets for emission increases of the

nonattainment pollutant from certain

new or modified major sources within

the nonattainment area; the second

sanction to be imposed is the highway

funding sanction. Under this sanction,

Federal highway funds are withheld

from the nonattainment area, unless the

funds are for exempt projects.

Furthermore, section 110(c) of the Act

obligates the EPA to promulgate a FIP

within two years of a finding that the

state has failed to submit the required

plan. The EPA must approve a plan

submitted by the state in order to stop

the FIP clock.

In a January 27, 1995, letter, the EPA

notified the Governor of the imposition

of the mandatory offset sanction on

February 2, 1995, barring a complete

submission. And in an August 1, 1995,

letter, the EPA notified the Governor of

the imposition of the mandatory

highway funding sanction on August 2,

1995, barring a complete submission.

Both sanctions were imposed until

September 18, 1996, when the EPA was

able to find that the state’s August 14,

1996, submittal was complete, thus

lifting the sanctions.

II. Criteria for Approval

The state’s August 14, 1996,

submission was reviewed using the

criteria established by the CAA. The

requirements for all SIPs are contained

in section 110(a)(2) of the CAA. Subpart

1 of Part D of Title I of the CAA, and

in particular section 172(c), specifies the

provisions necessitated by designation

of an area as nonattainment for any of

the NAAQS. Further guidance and

criteria are set forth in Subpart 5 of Part

D, the ‘‘General Preamble for the

Implementation of Title I of the Clean

Air Act Amendments of 1990’’ (57 FR

13498), and in the ‘‘Addendum to the

General Preamble for the

Implementation of Title I of the Clean

Air Act Amendments of 1990’’ (58 FR

67748).

III. Review of State Submittal

A. Control Strategy

The control strategy must contain

provisions to ensure that Reasonably

Available Control Technology (RACT),

including Reasonably Available Control

Measures (RACM), for area sources are

implemented (see section 172(c)(1) of

the CAA). See 57 FR 13549 and 58 FR

67748 for the EPA’s interpretation of

RACM and RACT requirements.

The state’s selection of control

strategies for the SIP was based on an

evaluation of controls provided to the

state by Asarco and its contractors. In

this study, Asarco evaluated 19 fugitive

emission control strategies and 29

process and stack-related control

strategies. Asarco selected what it

considered to be the most

implementable and cost-effective

options from this list which would bring

the area into attainment with the lead

NAAQS. The state concurred with

Asarco’s assessment that these controls

constituted RACT. Detailed information

regarding Asarco’s control option

selection process can be found in the

EPA’s technical support document

(TSD).

The attainment modeling assisted

Asarco and the state in focusing the

control strategy by indicating which

sources or groups of sources were the

greatest contributors to the ambient

concentrations.

Sinter plan fugitive emissions were

identified as the single largest

contributor to the violations with an

estimated contribution of 91 percent.

The sinter plant scrubber stack, the

sinter plan ventilation baghouse stack,

and the in-plant roads were also

identified as significant contributors.

The sinter plant is the first process

point for the lead concentrate at the lead

smelter. Fugitive emissions from the

sinter plant building are created by

sources inside the building as well as by

losses from point source ventilation

systems. Emissions caused by material

conveyance, crushing, and screening

exit the building through open sides and

roof monitors. This plan requires

increased efficiency of materials

handling by the reduction of transfer

steps, and the enclosure and ventilation

of the sinter plant.

The sinter plant scrubber cleans

ventilation gases from the crushing and

mixing of virgin feedstock for the sinter

machine. The emissions from the

scrubber currently exit the roof of the

sinter building through the wet scrubber

stack. The plan requires that these gases,

once processed by the scrubber, be

routed to the sinter machine updraft

fans to be used as process air for the

sinter feedstock bed. The gases will

ultimately be captured by the sinter

machine ventilation hoods and routed

to the process gas baghouse.

The sinter plant wheelabrator

ventilation baghouse cleans the point

source ventilation gases from the

crushing and sorting of sinter produced

from the sinter machine. These gases

exit the roof of the sinter building

through the baghouse stack. This plan

will require that baghouse gases be

rerouted to the intake of the sinter

machine updraft fans to be used as

process gases and ultimately collected

by the sinter machine hoods and routed

to the process gas baghouse.

Finally, the plan requires compliance

with state and Federally approved work

practices to minimize fugitive emissions

from in-plant roadways, stockpiles,

baghouse unloading, and other sources.

These work practices require additional

trafficway paving, sweeping, dust

supression, and materials handling

practices to reduce fugitive emissions.

Once approved, these work practices

may be modified only through Federal

approval of a SIP revision.

B. Attainment Demonstration

Section 192(a) of the CAA requires

that SIPs must provide for attainment of

the lead NAAQS as expeditiously as

practicable, but not later than five years

from the date of an area’s nonattainment

designation. The lead nonattainment

designation for the Liberty and Arcadia

Townships became effective on January
9972 Federal Register / Vol. 62, No. 43 / Wednesday, March 5, 1997 / Rules and Regulations

6, 1992; therefore, the latest attainment

date permissible by statute is January 6,

1997.

The Industrial Source Complex ShortTerm Model was used to demonstrate

attainment and maintenance of the lead

NAAQS. The procedures recommended

in the EPA’s Guideline on Air Quality

Models (Revised), EPA 450/2–78–027R,

July 1986, and Supplement A to the

Guideline on Air Quality Models

(Revised), EPA 450/2–78–027R, July

1987, were followed. This modeling

predicts attainment of the Federal lead

standard by January 1, 1997, with the

implementation of the control strategy.

See the TSD for more information.

C. Emission Inventory and Air Quality

Data

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

that nonattainment plan provisions

include a comprehensive, accurate,

current inventory of actual emissions

from all sources of relevant pollutants in

the nonattainment area.

Asarco, the state, and the EPA

undertook a comprehensive study to

develop an accurate baseline emission

inventory and dispersion model. This

inventory was quantified through stack

testing, evaluation of equipment and

procedures, the EPA emission

estimation methods, and engineering

judgment. The attainment emission

inventory was derived from the baseline

inventory with the control strategy

applied. Both inventories are included

in the state’s submittal.

The state’s submittal also provides a

historical summary of the air quality

data for the Glover area collected from

1984 through the most current quarter.

D. Reasonable Further Progress (RFP)

The SIP must provide for RFP [see

section 172(c)(2) of the Act]. The state’s

Consent Decree specifies an

implementation schedule which

requires a logical stepwise

implementation of emissions control

projects. This schedule results in a

continual decrease of lead emissions

through the implementation of the last

projects, scheduled to be completed by

December 31, 1996. The EPA believes

that the RFP demonstration meets the

requirements of section 172(c)(2) and

the relevant guidelines in the

‘‘Addendum to the General Preamble for

the Implementation of Title I of the

Clean Air Act Amendments of 1990’’ (58

FR 67748).

E. New Source Review (NSR)

Section 172(c)(5) requires that

nonattainment areas be subject to the

NSR permitting requirements of section

173. Missouri NSR regulations were

originally approved pursuant to Part D

of the Act on May 9, 1980 (45 FR

30626). The 1990 Amendments to the

Act added other requirements pursuant

to the review and approval of new and

modified sources. Missouri incorporated

these requirements into its regulations,

and the EPA approved this SIP revision

on February 29, 1996 (61 FR 7714).

Therefore, the state’s rules presently

meet the requirements of sections

172(c)(5) and 173. The EPA proposed

changes to the Part D NSR regulations

on July 23, 1996 (61 FR 38250).

Missouri may be required to revise its

NSR regulations to conform to the final

EPA requirements, when finalized.

F. Contingency Measures

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

CAA, all nonattainment area SIPs must

include contingency measures.

Contingency measures should consist of

specific emission control measures that

are not part of the area’s control

strategy. These measures must take

effect without further action by the state

or the EPA, upon a determination that

the area has failed to meet RFP or attain

the lead NAAQS by the applicable

attainment date.

There are seven contingency measures

established in item 2.C. of the state’s

Consent Decree. These measures are: (1)

construct and utilize a truck wash, (2)

expand the in-plant road sprinkler

system, (3) withdraw unloading

building air for sinter plant make-up air,

(4) comply with more stringent stack

emission limitations, (5) cool lead

bullion pots before dumping into

receiving kettles, (6) modify refinery

skims handling in blast furnace area,

and (7) increase efficiency of sinter

plant ventilation baghouse. In

accordance with the Consent Decree,

contingency measure number 1 would

be implemented by Asarco within 30

days from receipt of notice by Missouri

that the area failed to attain the

standard. In the case that an additional

violation is recorded, measures 2, 3, and

4 would be implemented in the

following quarter and, in the case that

a further violation is recorded, measures

5, 6, and 7 would be implemented. No

triggers were set for contingency

measure implementation in the case that

the area failed to maintain RFP, based

on circumstances unique to this lead

SIP. The plan was adopted by the state

well into Asarco’s implementation of

the control strategy, and the impending

attainment date would not allow much

evaluation of Asarco’s maintenance of

RFP by the state prior to the statutory

deadline for attainment of the standard.

G. Enforceability

All measures and other elements in

the SIP must be enforceable by the state

and the EPA (see sections 172(c)(6),

110(a)(2)(A), and 57 FR 13556). The

state submittal includes rule 10 CSR 10–

6.120 and Consent Decree Case No.

CV596–98CC, which contain all of the

control and contingency measures, with

enforceable dates for implementation.

This Consent Decree also contains

language regarding stipulated penalties.

While the EPA is approving this

language, Federal enforcement actions

and related activities would be initiated

by the EPA pursuant to its authority

under the CAA.

As mentioned above, a Work Practice

Manual was also included in the state’s

submission as an integral part of the

enforceable plan to achieve attainment

of the standard. These work practices

are designed to limit the fugitive

emissions at the facility, and are

enforced through recordkeeping

requirements. Noncompliance with the

established work practices is a violation

of the state’s rule and the terms of the

Consent Decree. The EPA approves the

Work Practice Manual with the

understanding that any change to the

Work Practice Manual requires a

revision to the Missouri SIP.

IV. Implications of This Action

This SIP revision will significantly

revise the current SIP. The modeling

performed in support of the SIP revision

indicates that the emissions control

strategy will result in attainment of the

NAAQS for lead by January 1, 1997.

V. Final Action

Pursuant to sections 110 and 172 of

the CAA, this is a direct final action

which approves the lead plan submitted

by the state of Missouri on August 14,

1996, in response to the designation of

the Liberty and Arcadia Townships as

nonattainment for lead. This SIP

revision meets the requirements of

section 110 and Part D of Title I of the

CAA and 40 CFR Part 51.

The EPA is publishing this action

without prior proposal because the

Agency views this as a noncontroversial

amendment and anticipates no adverse

comments. However, in a separate

document in this Federal Register

publication, the EPA is proposing to

approve the SIP revision should adverse

or critical comments be filed. This

action is effective May 5, 1997 unless,

by April 4, 1997, adverse or critical

comments are received.

If the EPA receives such comments,

this action will be withdrawn before the

effective date by publishing a
Federal Register / Vol. 62, No. 43 / Wednesday, March 5, 1997 / Rules and Regulations 9973

subsequent notice that will withdraw

the final action. All public comments

received will then be addressed in a

subsequent final rule based on this

action serving as a proposed rule. The

EPA will not institute a second

comment period on this action. Any

parties interested in commenting on this

action should do so at this time. If no

such comments are received, the public

is advised that this action is effective

May 5, 1997.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any SIP. Each

request for revision to the SIP shall be

considered separately in light of specific

technical, economic, and environmental

factors, and in relation to relevant

statutory and regulatory requirements.

VI. Administrative Requirements

A. Executive Order (E.O.) 12866

This action has been classified as a

Table 3 action for signature by the

Regional Administrator under the

procedures published in the Federal

Register on January 19, 1989 (54 FR

2214–2225), as revised by a July 10,

1995, memorandum from Mary Nichols,

Assistant Administrator for Air and

Radiation. The Office of Management

and Budget has exempted this

regulatory action from E.O. 12866

review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act,

5. U.S.C. § 600 et seq., the EPA must

prepare a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities (5 U.S.C. 603

and 604). Alternatively, the EPA may

certify that the rule will not have a

significant impact on a substantial

number of small entities. Small entities

include small businesses, small not-forprofit enterprises, and government

entities with jurisdiction over

populations of less than 50,000.

SIP approvals under section 110 and

subchapter I, Part D of the CAA do not

create any new requirements but simply

approve requirements that the state is

already imposing. Therefore, because

the Federal SIP approval does not

impose any new requirements, the

Administrator certifies that it does not

have a significant impact on any small

entities affected. Moreover, due to the

nature of the Federal-state relationship

under the CAA, preparation of a

regulatory flexibility analysis would

constitute Federal inquiry into the

economic reasonableness of state action.

The CAA forbids the EPA to base its

actions concerning SIPs on such

grounds (Union Electric Co. v. U.S.

E.P.A., 427 U.S. 246, 256–66 (S.Ct.

1976); 42 U.S.C. 7410(a)(2)).

C. Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, the 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

private sector, of $100 million or more.

Under section 205, the 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 the EPA to

establish a plan for informing and

advising any small governments that

may be significantly or uniquely

impacted by the rule.

The 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

approves preexisting requirements

under state or local law, and imposes no

new Federal requirements. Accordingly,

no additional costs to state, local, or

tribal governments, or to the private

sector, result from this action.

D. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, the

EPA submitted a report containing this

rule and other required information to

the U.S. Senate, the U.S. House of

Representatives, and the Comptroller

General of the General Accounting

Office prior to publication of this rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by 5

U.S.C. 804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the CAA,

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by May 5, 1997. Filing a petition

for reconsideration by the Administrator

of this final rule does not affect the

finality of this rule for the purposes of

judicial review, nor does it extend the

time within which a petition for judicial

review may be filed, and shall not

postpone the effectiveness of such rule

or action. This action may not be

challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Lead, Particulate matter, Reporting and

recordkeeping requirements.

Dated: January 16, 1997.

Dennis Grams,

Regional Administrator.

Part 52, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401—7671q.

Subpart AA—Missouri

2. Section 52.1320 is amended by

adding paragraph (c)(95) to read as

follows:

§ 52.1320 Identification of plan.

* * * * *

(c) * * *

(95) Plan revisions were submitted by

the Missouri Department of Natural

Resources on August 14, 1996, which

reduce lead emissions from the Asarco

primary lead smelter located within the

lead nonattainment area defined by the

boundaries of the Liberty and Arcadia

Townships located in Iron County,

Missouri.

(i) Incorporation by reference.

(A) Rule 10 CSR 10–6.120, Restriction

of Emissions of Lead From Primary Lead

Smelter—Refinery Installations, except

subsection 2(B) and 2(C), and section 4,

effective June 30, 1996.

(B) Consent Decree Case Number

CV596–98CC, STATE OF MISSOURI ex.

rel. Jeremiah W. (Jay) Nixon and the

Missouri Department of Natural

Resources v. ASARCO, INC., Missouri

Lead Division, effective July 30, 1996,

with Exhibits A, C, D, E, F, and G.

(ii) Additional material.

(A) Narrative SIP material submitted

on August 14, 1996. This submittal

includes the emissions inventory and

the attainment demonstration.

[FR Doc. 97–5132 Filed 3–4–97; 8:45 am]

BILLING CODE 6560–50–P