Approval and Promulgation of Implementation Plans; State of Missouri

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[Federal Register: April 16, 2002 (Volume 67, Number 73)]
[Rules and Regulations]
[Page 18497-18502]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ap02-21]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MO 151-1151; FRL-7170-6]

Approval and Promulgation of Implementation Plans; State of
Missouri

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: Pursuant to the Clean Air Act (CAA), EPA is approving the
State Implementation Plan (SIP) revisions submitted by the state of
Missouri for the Doe Run primary lead smelters in Herculaneum and
Glover, Missouri. A notice of proposed rulemaking was published on this
action on December 5, 2001. EPA received adverse comments on this
proposal and will respond to these comments in this rulemaking.
The SIP submitted by the state satisfies the applicable
requirements under the CAA and demonstrates attainment of the National
Ambient Air Quality Standards (NAAQS) for lead for the Doe Run-
Herculaneum area. Approval of this revision will ensure that the
Federally-approved requirements are current and consistent with state
regulations and requirements. The revision for Doe Run-Glover merely
reflects a change in ownership of the smelter.

[[Page 18498]]

DATES: This rule is effective on May 16, 2002.

FOR FURTHER INFORMATION CONTACT: James Hirtz at (913) 551-7472, or E-
mail him at hirtz.james@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This section provides
additional information by addressing the following questions:

Table of Contents

Background and Submittal Information
What is a SIP?
What is the background for Doe Run-Herculaneum?
What is the Federal approval process for a SIP?
What does Federal approval of a state regulation mean to me?
EPA's Final Action
What comments were received on the December 5, 2001, proposal
and what is EPA's response?
What action is EPA taking?

Background and Submittal Information

What Is a SIP?

Section 110 of the CAA requires states to develop air pollution
regulations and control strategies to ensure that state air quality
meets the national ambient air quality standards established by EPA.
These ambient standards are established under section 109 of the CAA,
and they currently address six criteria pollutants. These pollutants
are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate
matter, and sulfur dioxide.
Each state must submit these regulations and control strategies to
us for approval and incorporation into the Federally-enforceable SIP.
Each Federally-approved SIP protects air quality primarily by
addressing air pollution at its point of origin. These SIPs can be
extensive, containing state regulations or other enforceable documents
and supporting information such as emission inventories, monitoring
networks, and modeling demonstrations.

What Is the Background for Doe Run-Herculaneum?

A notice of proposed rulemaking was published on this action on
December 5, 2001 (66 FR 63204). EPA received adverse comments on this
proposal and will respond to these comments in this rulemaking.
On June 3, 1986, EPA issued a call for a revision to the Missouri
SIP in response to violations of the NAAQS for lead in the vicinity of
the Doe Run primary lead smelter in Herculaneum, Missouri. Doe Run-
Herculaneum is the largest primary lead smelter in the United States
with a production capacity of 250,000 tons of refined lead per year.
The NAAQS for lead is 1.5 micrograms (µg) of lead per cubic
meter (m\3\) of air averaged over a calendar quarter. The state
submitted a SIP revision on September 6, 1990, and EPA granted limited
approval for Missouri's 1990 SIP revision on March 6, 1992 (57 FR
8076), pending submission of a supplemental SIP revision meeting the
applicable requirements (Part D of Title I of the CAA as amended in
1990).
A revised SIP meeting the part D requirements was subsequently
submitted in 1994. The plan established June 30, 1995, as the date by
which the Herculaneum area was to have attained compliance with the
lead standard. However, the plan did not result in attainment of the
standard and observed lead concentrations in the Herculaneum area
continued to show violations of the standard. Therefore, on August 15,
1997, after taking and responding to public comments, EPA published a
notice in the Federal Register finding that the Herculaneum
nonattainment area had failed to attain the lead standard by the June
30, 1995, deadline (62 FR 43647).
On January 10, 2001, Missouri submitted a revised SIP to EPA for
the Doe Run-Herculaneum area. The SIP revision was found complete on
January 12, 2001. The SIP establishes August 14, 2002, as the
attainment date for the area and satisfies the part D requirements of
the CAA. The revised plan also contains a control strategy to address
the violations of the NAAQS which occur after implementation of the
control measures in the 1995 SIP revision. EPA believes that the
dispersion and receptor modeling demonstrate that the selected control
measures will result in attainment of the NAAQS for lead. For further
information, the reader should consult the proposed rulemaking
published on December 5, 2001, and the technical support document which
is part of this docket.

What Is the Federal Approval Process for a SIP?

In order for state regulations to be incorporated into the
Federally-enforceable SIP, states must formally adopt the regulations
and control strategies consistent with state and Federal requirements.
This process generally includes a public notice, public hearing, public
comment period, and a formal adoption by a state-authorized rulemaking
body.
Once a state rule, regulation, or control strategy is adopted, the
state submits it to us for inclusion into the SIP. We must provide
public notice and seek additional public comment regarding the proposed
Federal action on the state submission. If adverse comments are
received, they must be addressed prior to any final Federal action by
us.
All state regulations and supporting information approved by EPA
under section 110 of the CAA are incorporated into the Federally-
approved SIP. Records of such SIP actions are maintained in the Code of
Federal Regulations (CFR) at Title 40, Part 52, entitled ``Approval and
Promulgation of Implementation Plans.'' The actual state regulations
which are approved are not reproduced in their entirety in the CFR
outright but are ``incorporated by reference,'' which means that we
have approved a given state regulation with a specific effective date.

What Does Federal Approval of a State Regulation Mean to Me?

Enforcement of the state regulation before and after it is
incorporated into the Federally-approved SIP is primarily a state
responsibility. However, after the regulation is Federally approved, we
are authorized to take enforcement action against violators. Citizens
are also offered legal recourse to address violations as described in
section 304 of the CAA.

EPA's Final Action

What Comments Were Received on the December 5, 2001, Proposal and What
Is EPA's Response?

EPA received two written comments of a general nature relating to
the Doe Run facility. One comment supported the facility operating in
Herculaneum, and the other comment described the adverse health effects
of lead emissions, particularly on children. With respect to the latter
comment, EPA notes that the lead standard is set at a level to protect
public health, including the health of children, and that EPA's
approval of the SIP means that the control strategy designed by the
state to bring about attainment of the standard will now be enforceable
by EPA as well as the state.
EPA also received adverse comments on behalf of an environmental
organization (Missouri Coalition for the Environment--the
``Coalition'') specifically directed to the Proposed Rulemaking
published on December 5, 2001 (66 FR 63204). The adverse comments
focused on concerns regarding: (1) The ambient monitoring network and
monitoring schedules, and collection of samples; (2) enforcement; (3)
modeling at the slag pile; and (4) editorial comments.

[[Page 18499]]

EPA sets forth below in this section a summary of the Coalition's
comments and our responses.

Issue 1: Comments on Monitoring Schedules and Collection of Samples

Comment 1: The commenter states that there are ``anecdotal
reports'' that Doe Run alters the facility's operating schedule on days
that ambient monitoring is being conducted (i.e., every sixth day) to
lower emissions during days on which monitoring samples are collected.
The commenter implies that the SIP is inadequate because it does not
address mechanisms to ensure that monitored data represents emissions
during normal source operations.
Response to Comment 1: In general, EPA notes that the attainment
demonstration and control strategy approved in today's action are based
on dispersion modeling and receptor modeling. The analysis is discussed
in more detail in the December 5, 2001, proposal (66 FR at 63206). The
analysis used monitored data to evaluate the accuracy of the
predictions from the dispersion model, to ``fingerprint'' the emission
units contributing to the monitors, and to confirm the adequacy of the
control strategy. However, the monitoring was done in accordance with
specific protocols developed for the attainment demonstration
(including the requirement that only the highest monitored values would
be used) and was not dependent on the routine ambient monitoring
referenced by the commenter. In addition, the attainment demonstration
relied on emission rates based on stack testing performed at a
production rate of at least 90 percent of maximum capacity. Therefore,
the attainment demonstration was based on ``worst-case'' source
operations and would not be impacted by the reported alteration of
operating schedules described by the commenter.
Although the representativeness of the ongoing ambient monitoring
is not relevant to the attainment demonstration and control strategy
which is the subject of today's action, we note that ambient monitoring
will be used to determine whether the area has attained the lead
standard after the control strategy is implemented. Therefore, EPA is
concerned that accurate and representative ambient air data is
collected. EPA and the Missouri Department of Natural Resources (MDNR)
will continue to compare production levels and process operational data
to reported ambient levels. EPA and MDNR will use this information to
assist in the evaluation of whether the area has attained the standard
by the attainment date and in the evaluation of the monitoring
strategy. In addition, any request for redesignation to attainment
after implementation of the control strategy would require a showing
that air quality improvements are due to permanent and enforceable
emission reductions (section 107(d)(3)(E)(iii) of the CAA), so that
temporary and voluntary cut-backs in production (if any have occurred)
could not be considered in determining whether this requirement has
been met.
Comment 2: The statement in the proposal that air quality has
improved in the Herculaneum area is not supported because of the
inadequacies in the monitoring conducted by Doe Run.
Response to Comment 2: In the technical support document for the
proposal, EPA stated that historical monitoring data show improvements
in air quality in the area. This information was only included to
provide a brief background of the Herculaneum area and is not part of
the rationale for approval of the SIP. As stated in the response to the
previous comment, EPA's basis for approval is that the SIP modeling and
the control strategy based on the modeling show attainment of the
standard and meet the applicable requirements of the CAA (the
applicable requirements and EPA's analysis of how the SIP meets those
requirements are set forth in the December 5, 2001, proposal at 66 FR
63206-63208). Ambient monitors located some distance from the plant
show that air quality has generally improved over the years. However,
the air does not meet Federal standards and the air emission controls
required at the Herculaneum facility by the SIP will help further
improve the air quality in the Herculaneum area. The modeling shows
that the controls in the SIP will be adequate to achieve the lead
standard.
Comment 3: The commenter stated that the Herculaneum community has
a ``healthy skepticism'' of the current monitoring network because 7 of
the 8 lead network monitors are operated by the Doe Run company.
Response to Comment 3: For the reasons explained in the response to
comment 1, the operation of the ambient monitoring network is not
relevant to the development of the control strategy and attainment
demonstration. However, EPA notes that Missouri currently operates
collocated monitors at four of the eight monitoring sites, including
the ``Broad Street'' site, which has recently been recording the
highest ambient lead values in the area. To ensure that the data
generated by all monitoring stations are accurate, the data generated
by Doe Run is quality assured by MDNR. In addition, Doe Run was
required to submit a monitoring plan and quality assurance plan that
was approved by MDNR. MDNR conducts quarterly audits of the monitoring
performed by Doe Run. MDNR and EPA have no reason to believe that Doe
Run is improperly operating the monitors or performing invalid
laboratory analyses.
MDNR and EPA are currently re-evaluating the lead monitoring
strategy for the Herculaneum area based upon existing monitoring data
and modeling analyses. EPA and MDNR intend to fully evaluate the
accuracy of the monitoring data prior to any determination on whether
the area has attained the standard as of the attainment date.
Comment 4: The commenter notes that the consent judgment allows Doe
Run to reduce the number of monitors from seven to three, and states
that the use of three monitors is inappropriate to determine
attainment.
Response to Comment 4: The consent judgment requires that Doe Run
operate a minimum of three monitors on a long-term basis. EPA notes,
however, that the consent judgment requires that the company continue
to operate the monitors which historically have been the most critical
monitors (i.e., the monitors which have consistently monitored
violations of the standards) including the ``Broad Street'' monitor. In
addition, Missouri will continue to operate the collocated monitors as
described above.
EPA also notes that the attainment determination to be made after
the attainment date will involve a separate rulemaking, and that
commenters will have an opportunity to review the data and comment on
the adequacy of the data which will be used by EPA in support of its
determination.

Issue 2: Enforcement

Comment 5: The commenter states that the consent judgment does not
provide sufficient penalties (stipulated penalties of $100.00 a day to
$500.00 a day) to establish a financial incentive for Doe Run to
comply.
Response to Comment 5: EPA is not a party to the consent judgment
and is not constrained by state law (or the limits in the consent
judgment on the state's ability to collect penalties for noncompliance)
with respect to enforcement of the control strategies contained in the
consent judgment and the state regulations applicable to the Doe Run
facility. Our approval of the consent judgement relates only to the
controls therein. The consent

[[Page 18500]]

judgment's penalty provisions constrain Missouri concerning the amount
of penalties it may collect (for example, stating that Missouri may not
collect penalties in certain instances in which a penalty has been
assessed by EPA) but nothing in the consent judgment constrains EPA's
enforcement authority. Once the control requirements in the consent
judgment become applicable requirements of the SIP, EPA may enforce
them under the CAA. For example, if Doe Run were to violate a control
requirement, Doe Run would be subject, under section 113 of the CAA, to
penalties of up to $25,000 per day per violation (as adjusted for
inflation pursuant to other authority).
Comment 6: The commenter states that the consent judgement does not
contain reporting requirements for Doe Run or provisions for compliance
inspections and audits.
Response to Comment 6: The recordkeeping provisions in the consent
judgement are located in Section B: (Enforcement Measures), part (6a-
c). Doe Run is required to maintain the following records for a minimum
of 5 years following the recording of information:
a. Maintain a quarterly file for: (1) Sinter Machine throughput;
(2) Blast Furnace throughput; and (3) Refined lead produced;
b. Baghouse inspection findings as required in the Work Practice
Manual; and
c. Upset operating incidents or material spills that affect lead
emissions.
MDNR and EPA have separate authorities to obtain these required
records and conduct inspections and audits of the facility (e.g.,
section 114 of the CAA) and the fact that the consent judgement does
not include these provisions does not limit our ability to obtain the
information necessary to determine compliance.

Issue 3: Emission Sources Used in Modeling

Comment 7: The commenter states that the dispersion models used as
a basis for SIP approval do not include the slag pile as an emission
source and that the SIP does not document the rationale for exclusion.
The commenter states that all potential emissions sources should have
been considered in evaluating the control strategy.
Response to Comment 7: A review of the emission source inventory
used for the dispersion modeling identified the slag stockpiles as an
emission source. Emission factors for both handling and wind erosion
were developed based upon EPA-approved AP-42 factors. Therefore, the
emissions from these sources were considered in evaluating the
attainment strategy. As a result of the inventory and modeling efforts
conducted by EPA and MDNR, these sources were not identified as
contributing significantly to the ambient air lead levels in
Herculaneum. The control strategy does not include restrictions on air
emissions from the slag piles because they were not shown by the
modeling, on which the attainment demonstration and control strategy is
based, to have a significant impact on attainment.

Issue 4: Editorial Comments

Comment 8: The commenter stated that in the proposal EPA
incorrectly described the contingency measures in the SIP, and that
they should be correctly identified before taking final action on the
SIP.
Response to Comment 8: The commenter did not take issue with our
proposed approval of the contingency measures, but only with our
description of them. As the commenter points out, the proposal (66 FR
63207) incorrectly stated that one contingency measure requires a
twenty percent production cut and an additional curtailment by a
specified formula. In fact, the contingency measures relating to
curtailment state that production must be cut either by 20 percent or
by a specified formula.

What Action Is EPA Taking?

EPA is finalizing the Doe Run-Herculaneum nonattainment area SIP
submitted by Missouri on January 10, 2001. The SIP meets the
requirements of section 110, and part D of the CAA and 40 CFR part 51.
EPA is also approving the Doe Run-Glover SIP submission which merely
reflects a change in ownership of the smelter. This action terminates
EPA's obligation to promulgate a Federal plan for the area under
Section 110(c) of the CAA.

Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does 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 (64
FR 43255, August 10, 1999). This action 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 CAA.
This rule also is not subject to Executive Order 13045, ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997).
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the State
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the CAA. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must

[[Page 18501]]

submit a rule report, which includes a copy of the rule, to each House
of the Congress and to the Comptroller General of the United States.
EPA will submit 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 United States prior to publication of
the rule in the Federal Register. A major rule cannot take effect until
60 days after it is published in the Federal Register. This action is
not a ``major rule'' as defined by 5 U.S.C. 804(2).
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 June 17, 2002. 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides.

Dated: March 29, 2002.
James B. Gulliford,
Regional Administrator, Region 7.

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 et seq.

Subpart AA--Missouri

2. Section 52.1320 is amended:
a. In the table to paragraph (c) under Chapter 6 by revising the
entry for ``10-6.120''.
b. In the table to paragraph (d) by removing the center heading
``St. Louis City Incinerator Permits'' and adding entries at the end of
the table.
c. In the table to paragraph (e) by adding entries at the end of
the table.
The revision and additions read as follows:

Sec. 52.1320 Identification of Plan.

* * * * *
(c) * * *

EPA-Approved Missouri Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Missouri citation Title State effective date EPA approval date Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
Missouri Department of Natural Resources
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Chapter 6--Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control Regulations for the State of Missouri
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
10-6.120.......................... Restriction of Emissions 03/30/01 April 16, 2002 and 67 FR
of Lead From Specific 18501.
Lead smelter-Refinery
Installations.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

(d) * * *

EPA-Approved State Source-Specific Permits and Orders
--------------------------------------------------------------------------------------------------------------------------------------------------------
Name of source Order/permit number State effective date EPA approval date Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
Asarco, Glover, MO................ Modification of Consent 07/31/00 April 16, 2002 and 67 FR
Decree, CV596-98CC. 18501.
Doe Run, Herculaneum, MO.......... Consent Judgement, CV301- 01/05/01 April 16, 2002 and 67 FR
0052C-J1, with Work 18501.
Practice Manual and
S.O.P. for Control of
Lead Emissions (Rev
2000).
--------------------------------------------------------------------------------------------------------------------------------------------------------

(e) * * *

[[Page 18502]]

EPA-Approved Missouri Nonregulatory SIP Provisions
--------------------------------------------------------------------------------------------------------------------------------------------------------
Name of nonregulatory SIP Applicable geographic or
provision non-attainment Area State submittal date EPA approval date Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Doe Run Resources Corporation Herculaneum, MO........... 01/09/01 April 16, 2002 and 67 FR The SIP was reviewed and
Primary Lead Smelter, 2000 18502. approved by EPA on 1/11/01.
Revision of Lead SIP.
Doe Run Resources Corporation Glover, MO................ 06/15/01 April 16, 2002 and 67 FR The SIP was reviewed and
Primary Lead Smelter, 2000 18502. approved by EPA on 6/26/01.
Revision of Lead SIP.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. 02-8950 Filed 4-15-02; 8:45 am]
BILLING CODE 6560-50-P]

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