[Federal Register Volume 67, Number 73 (Tuesday, April 16, 2002)]
[Rules and Regulations]
[Pages 18497-18502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8950]


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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 [email protected].

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 (g) 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
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         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
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          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).
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    (e) * * *

[[Page 18502]]



                                                   EPA-Approved Missouri Nonregulatory SIP Provisions
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     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.
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[FR Doc. 02-8950 Filed 4-15-02; 8:45 am]
BILLING CODE 6560-50-P]