[Federal Register Volume 66, Number 117 (Monday, June 18, 2001)]
[Rules and Regulations]
[Pages 32767-32769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15143]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[SIP NO. MT-001-0030a; FRL-6985-8]


Clean Air Act Approval and Promulgation of Air Quality 
Implementation Plan; Montana; East Helena Lead State Implementation 
Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is taking direct final action approving revisions to 
the East Helena Lead (Pb) State Implementation Plan (SIP) submitted by 
the Government of Montana on November 27, 2000. The revisions make 
minor modifications to Asarco's control strategy in the Pb SIP. The 
intended effect of this action is to make the revisions federally 
enforceable. The EPA is taking this action under sections 110 and 301 
of the Clean Air Act (Act).

DATES: This rule is effective on August 17, 2001. without further 
notice, unless EPA receives adverse comment by July 18, 2001. If 
adverse comment is received, EPA will publish a timely withdrawal of 
the direct final rule in the Federal Register informing the public that 
the rule will not take effect.

ADDRESSES: Written comments may be mailed to Richard R. Long, Director, 
Air and Radiation Program, Mailcode 8P-AR, Environmental Protection 
Agency (EPA), 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 and copies of the 
Incorporation by Reference material are available at the Air and 
Radiation Docket and Information Center, Environmental Protection 
Agency, 401 M Street, SW, Washington, DC 20460. Copies of the State 
documents relevant to this action are available for public inspection 
at the Montana Department of Environmental Quality, Air and Waste 
Management Bureau, 1520 E. 6th Avenue, Helena, Montana 59620.

FOR FURTHER INFORMATION CONTACT: Kerri Fiedler, EPA, Region VIII, (303) 
312-6493 or Laurie Ostrand, EPA, Region VIII, (303) 312-6437.

SUPPLEMENTARY INFORMATION:

Definitions

    For the purpose of this document, we are giving meaning to certain 
words as follows:
    (i) The words or initials Act of CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials Pb mean or refer to the element lead.
    (iv) The initials MDEQA mean or refer to the Montana Department of 
Environmental Quality.
    (v) The initials SIP mean or refer to State Implementation Plan.
    (vi) The words State or Montana mean the State of Montana, unless 
the context indicates otherwise.

Background

    On November 6, 1991 (56 FR 56694), we designated the East Helena 
area as nonattainment for Pb. This designation was effective on January 
6, 1992 and required the State to submit a Part D SIP by July 6, 1993. 
On August 16, 1995, July 2, 1996 and October 20, 1998 the Governor of 
Montana submitted SIP revisions to meet the Part D SIP requirements. On 
October 10, 2000 (65 FR 60144) we proposed to partially approve and 
partially disapprove these State submittals. In a separate action 
published today we are finalizing our proposal to partially approve and 
partially disapprove the State submittals.
    Subsequent to our October 10, 2000 proposed rulemaking, the State 
of Montana submitted another revision to the East Helena Pb SIP on 
November 27, 2000. Since the State's November 27, 2000 submittal 
revises portions of the plan on which we proposed action, we believe we 
should act on the new provisions at the same time we take final action 
on our proposed rulemaking, so that the end result will be a federally 
approved plan that is consistent with the current State plan (except 
for those provisions of the plan that we are partially disapproving in 
a separate action published today).

Review of State's November 27, 2000 Submittal

    With the November 27, 2000 submittal, the State is revising the 
control strategy for the Asarco lead smelter in East Helena, Montana, 
by removing reference to the Pb bullion granulating process in the 
Dross Building from the control plan and by renaming several emission 
points and a process vessel at the Asarco facility. The revisions were 
effective at the State level on September 15, 2000.
Pb Granulating Process Changes
    When the State developed the Pb SIP for East Helena (SIP submitted 
on August 16, 1995), at the request of Asarco, the SIP referenced a new 
granulating technology in the Dross Building. We proposed approval of 
this SIP on October 10, 2000 (65 FR 60144). Subsequently, Asarco found 
that the granulating technology did not work well and discontinued its 
use, reverting back to conventional drossing technology in 1997. The 
MDEQ has concluded that discontinuing the granulating technology and 
reverting back to the conventional technology will not change any of 
the inputs or assumptions in the modeling demonstration used to 
demonstrate compliance with the National Ambient Air Quality Standards 
(NAAQS) for Pb in East Helena. Additionally, the MDEQ has concluded 
that changing the drossing process will not have an effect on actual 
levels of fugitive Pb emissions from the Dross Plant building or on 
actual levels of Pb emissions from the Dross Plant baghouse stack. The 
MDEQ reached these conclusions based on the following information:
     The subject drossing activities are conducted entirely 
within the Dross Plan building;
     The Dross Plant building is completely enclosed and 
ventilated to the Dross Plant baghouse;
     There will be no change in the fugitive emission rate with 
the conventional technology; and
     There will be no change in emissions from the Dross Plant 
baghouse stack.
    We have reviewed the MDEQ's conclusions and supporting 
documentation; we agree that there will be no change in levels of 
emissions from

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the Dross Plant building or Dross Plant baghouse stack and no changes 
in the inputs and assumptions used in the Pb NAAQS attainment 
demonstration. Therefore, we are approving the revisions to the SIP 
that remove all references to the granulating process in the Dross 
Plant. The specific sections of exhibit A to Asarco's stipulation that 
are being revised thus include: Sections 3(A)(12)(a), 3(A)(12)(p), 
3(A)(12)(q), 3(A)(12)(r), and 5(G)(4). These revisions, which became 
effective on September 15, 2000, replace the same numbered sections in 
previously approved SIP revisions.
Renaming of Emission Points and Process Vessel
    The November 27, 2000 submittal also renamed two emission points 
and a process unit to better reflect the current configuration of 
Asarco's East Helena facility. All references to the ``Crushing Mill 
Baghouses # 1 and #2'' and ``Crushing Mill Baghouse Stacks #1 and #2'' 
have been replaced with ``Sinter Plant Roof Baghouses #7 and #8.'' We 
understand that there is no change in emissions from or in waste gas 
streams vented to these baghouses. We are approving the renaming of 
these baghouses. The specific sections of exhibit A to Asarco's 
stipulation that are being revised to reflect the new baghouse names 
include: sections 1(B)(4), 1(B)(5), 3(A)(3), 3(A)(4), 3(A)(16)(a), 
5(D)(1), 5(D)(2), 8(A)(3), 9(B)(2), and 9(B)(3). These revisions, which 
became effective on September 15, 2000, replace the same numbered 
sections in previously approved SIP revisions.
    Finally, the November 27, 2000 submittal also renamed the ``60-ton 
kettle'' in the Dross Plant to the ``#4 kettle.'' Again, this was done 
to better represent the current configuration at the Asarco facility. 
We understand that there is no change in emissions from the ``60-ton 
kettle.'' We are approving the renaming of the ``60-ton kettle'' to the 
``#4 kettle.'' The specific sections of exhibit A to Asarco's 
stipulation that are being revised to reflect the new kettle name 
include: sections 3(A)(12)(a), 3(A)(12)(i), 3(A)(12)(m), 3(A)(12)(o) 
and 3(A)(12)(p). These revisions, which became effective on September 
15, 2000, replace the same numbered sections in previously approved SIP 
revisions.

II. Final Action

    We are approving the State's November 27, 2000 submittal, which 
revised the part of the control strategy related to the Asarco Pb 
smelter by removing references to the Pb bullion granulating process 
(in the Dross Plant) and by renaming several emission points and a 
process vessel at the Asarco facility. The specific sections of exhibit 
A to Asarco's stipulation that are being revised include: 1(B)(4), 
1(B)(5), 3(A)(3), 3(A)(4), 3(A)(12)(a), 3(A)(12)(i), 3(A)(12)(m), 
3(A)(12)(o), 3(A)(12)(p), 3(A)(12)(q), 3(A)(12)(r), 3(A)(16)(a), 
5(D)(1), 5(D)(2), 5(G)(4), 8(A)(2), 8(A)(3), 9(B)(2), and 9(B)(3). 
These revisions, which became effective on September 15, 2000, replace 
the same-numbered sections in previously approved SIP revisions.
    We caution that if Asarco is subject to more stringent requirements 
under other provisions of the Act (e.g., section 111, Part C, or SIP-
approved permit programs under Part A), our approval of this SIP 
revision would not excuse Asarco from meeting these other more 
stringent requirements. Also, our approval of this SIP revision is not 
meant to imply any sort of applicability determination under other 
provisions of the Act (e.g., section 111, Part C, or SIP approved 
permit programs under Part A).
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments on this minor revision to the Lead SIP. However, in 
the ``Proposed Rules'' section of today's Federal Register publication, 
EPA is publishing a separate document that will serve as the proposal 
to approve the SIP revision if adverse comments are filed. This rule 
will be effective August 17, 2001, without further notice unless the 
Agency receives adverse comments by July 18, 2001. If the EPA receives 
adverse comments, EPA will publish a timely withdrawal in the Federal 
Register informing the public that the rule will not take effect. EPA 
will address all public comments in a subsequent final rule based on 
the proposed rule. The EPA will not institute a second comment period 
on this action. Any parties interested in commenting must do so at this 
time. Please note that if EPA receives adverse comment on an amendment, 
paragraph, or section of this rule and if that provision may be severed 
from the remainder of the rule, EPA may adopt as final those provisions 
of the rule that are not the subject of an adverse comment.

III. 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. 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 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), nor will it 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), 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. This rule also is 
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 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 Clean Air Act. 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. As required by section 3 
of Executive order 12988 (61 FR 4729, February 7, 1996), in issuing 
this rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive order 12630 (53 FR 8859, March 15, 1988) by examining the

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takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
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. Section 804, however, exempts from section 801 the 
following types of rules: rules of particular applicability; rules 
relating to agency management or personnel; and rules of agency 
organization, procedure, or practice that do not substantially affect 
the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA 
is not required to submit a rule report regarding this action under 
section 801 because this is a rule of particular applicability.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 17, 2001. 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, Reporting and 
recordkeeping requirements.

    Dated: May 16, 2001.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.

    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 et seq.

Subpart BB--Montana

    2. Section 52.1370 is amended by adding paragraph (c)(53) to read 
as follows:


Sec. 52.1370  Identification of plan.

* * * * *
    (c) * * *
    (53) The Governor of Montana submitted minor revisions to Asarco's 
control strategy in the East Helena Lead SIP on November 27, 2000.
    (i) Incorporation by reference.
    (A) Board order issued on September 15, 2000, by the Montana Board 
of Environmental Review adopting and incorporating the stipulation of 
the Montana Department of Environmental Quality and Asarco dated July 
18, 2000. The July 18, 2000 stipulation revises the following sections 
in the previously adopted exhibit A to the stipulation: 1(B(4), 
1(B)(5), 3(A)(3), 3(A)(4), 3(A)(12)(a), 3(A)(12)(i), 3(A)(12)(m), 
3(A)(12)(o), 3(A)(12)(p), 3(A)(12)(q), 3(A)(12)(r), 3(A)(16)(a), 
5(D)(1), 5(D)(2), 5(G)(4), 8(A),(2), 8(A)(3), 9(B)(2), and 9(B)(3). 
These revisions, which became effective on September 15, 2000, replace 
the same-numbered sections in previously approved SIP revisions.

[FR Doc. 01-15143 Filed 6-15-01; 8:45 am]
BILLING CODE 6560-50-M