02-8950. Approval and Promulgation of Implementation Plans; State of Missouri

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

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.

DATES:

This rule is effective on May 16, 2002.

FOR FURTHER INFORMATION CONTACT:

James Hirtz at [phone], or E-mail him at [e-mail].

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 (m³) 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.

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 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 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:

§ 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 of Lead From Specific Lead smelter-Refinery Installations.	03/30/01	April 16, 2002 and 67 FR 18501.
*         *         *         *         *         *         *

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

(e) * * *

EPA-Approved Missouri Nonregulatory SIP Provisions

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