[Federal Register Volume 76, Number 9 (Thursday, January 13, 2011)]
[Rules and Regulations]
[Pages 2263-2267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-337]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2010-0675; FRL-9250-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Minnesota; Gopher Resource, LLC

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a request submitted by the Minnesota 
Pollution Control Agency (MPCA) on July 29, 2010, to revise the 
Minnesota State Implementation Plan (SIP) for lead (Pb) under the Clean 
Air Act (CAA). The State has submitted a joint Title I/Title V document 
(joint document) in the form of Air Emission Permit No. 03700016-003, 
and has requested that the conditions laid out with the citation 
``Title I Condition: SIP for Lead NAAQS'' replace an existing 
Administrative Order (Order) as the enforceable SIP conditions for 
Gopher Resource, LLC. The existing Order was approved by EPA on October 
18, 1994. MPCA's July 29, 2010, revisions were meant to satisfy the 
maintenance requirements for the 1978 Pb National Ambient Air Quality 
Standard (NAAQS), promulgated at 1.5 micrograms per cubic meter, or 1.5 
[mu]g/m3.

DATES: This direct final rule will be effective March 14, 2011, unless 
EPA receives adverse comments by February 14, 2011. If adverse comments 
are 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: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2010-0675, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: (312) 692-2551.
    4. Mail: John Mooney, Chief, Attainment Planning and Maintenance 
Section (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson 
Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: John Mooney, Chief, Attainment Planning and 
Maintenance Section (AR-18J), U.S. Environmental Protection Agency, 77 
West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are 
only accepted during the Regional Office normal hours of operation, and 
special arrangements should be made for deliveries of boxed

[[Page 2264]]

information. The Regional Office official hours of business are Monday 
through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2010-0675. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, Region 5, Air and Radiation Division, 77 West 
Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal 
holidays. We recommend that you telephone Andy Chang, Environmental 
Engineer, at (312) 886-0258 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Andy Chang, Environmental Engineer, 
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-0258, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. Background
    A. When and why did the State make this submittal?
    B. Did the State hold public hearings for this submittal?
II. What is EPA's analysis of MPCA's submittal?
    A. Gopher Resource, LLC, and General SIP Conditions
    B. Emissions Units, Processes, and Limits
    C. Stack Emissions Testing
    D. Consistency With the Existing Order
    E. Rescission of the Order.
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. Background

A. When and why did the State make this submittal?

    MPCA submitted this revision to the Minnesota SIP on July 29, 2010. 
Air Emission Permit No. 03700016-003 was submitted as a joint document, 
and MPCA requested that the conditions labeled ``Title I Condition: SIP 
for Lead NAAQS'' serve as the enforceable SIP conditions for the Gopher 
Resource, LLC, (Gopher) facility. The State's submittal, as well as 
EPA's analysis of the submittal elements, will be discussed in 
subsequent sections of this document.
    Portions of Dakota County were designated as nonattainment for the 
1978 Pb NAAQS on January 6, 1992. It was found that Gopher was the 
primary source of elevated Pb levels in the area. Gopher was formerly 
known as Gopher Smelting and Refining Company, and the change to Gopher 
Resource, LLC will be discussed in Section IIA, below.
    EPA approved a request to redesignate Dakota County as attainment 
for the 1978 Pb NAAQS on October 18, 1994. The redesignation request 
was part of a SIP revision which also included a maintenance plan in 
accordance with section 175A of the CAA, as interpreted by a September 
4, 1992, EPA memorandum entitled, ``Procedures for Processing Requests 
to Redesignate Areas to Attainment.'' EPA also approved the Order for 
Gopher on October 18, 1994. This Order was originally issued by MPCA 
for the facility on June 22, 1993, and contained emissions limits and 
other requirements ensuring attainment of the 1978 Pb NAAQS.
    Section 175A(b) of the CAA required MPCA to submit an update to its 
maintenance plan, which the agency did on November 18, 2002. On this 
date, the State also submitted a request to replace the existing Order 
with a joint document, in this case, a permit. This concept does not 
set any new precedent, because Minnesota routinely houses the 
conditions necessary to attain and maintain the NAAQS in facility 
permits. The required SIP conditions are denoted as, ``Title I 
Condition: SIP for (pollutant) NAAQS.'' However, EPA did not act on the 
submittal because, among other things, the revisions to the SIP for 
Gopher removed contingency measures from the maintenance plan.
    On November 19, 2007, MPCA formally withdrew the request to replace 
the Order with the joint document, but asked that EPA consider the 
maintenance plan update, which EPA approved on June 3, 2008 (73 FR 
31614). On November 16, 2010, the Administrator of EPA signed 
designations for Pb nonattainment areas for the 2008 Pb NAAQS, for 
those areas exceeding 0.15 [mu]g/m3. A subsequent Federal 
Register notice published on November 22, 2010 (75 FR 71033), confirmed 
that portions of Eagan, located in Dakota County, and identical to the 
current maintenance area for the 1978 Pb NAAQS, are in nonattainment 
for the 2008 Pb NAAQS. However, the 1978 Pb NAAQS remains in effect for 
the Eagan area until December 31, 2011. MPCA's July 29, 2010, requested 
revisions are meant to address only the maintenance requirements of the 
1978 Pb NAAQS.
    MPCA has worked closely with EPA to form a joint document that 
meets all the requirements to replace the existing Order as the 
enforceable SIP conditions for the Gopher facility. As previously 
mentioned, Minnesota houses all conditions necessary to attain and 
maintain the NAAQS in facility permits through a joint document. The 
conditions of this joint document are established under Minnesota's 
Clean Air Act Title I authority and Title V permitting authority. The 
State's July 29, 2010, submittal from MPCA is the Title V permit for 
Gopher Resource, LLC, with appropriately denoted Title I SIP 
conditions. This joint document will replace the existing Order, and 
although this SIP revision has been submitted in conjunction with 
reissuance of the facility's operating permit, this action will focus 
only on the relevant changes to the facility's Title I SIP conditions 
for Pb.

[[Page 2265]]

B. Did the State hold public hearings for this submittal?

    The public notice for the joint document and associated SIP 
revision was published in the St. Paul Pioneer Press on February 17, 
2010. The public notice period for the joint document began on February 
18, 2010, and lasted until March 19, 2010. MPCA did not receive a 
request to hold a public hearing, but did receive comments on the 
reissuance of the Title V permit. However, none of the comments that 
MPCA received were applicable to the maintenance requirements for the 
1978 Pb NAAQS, and no changes to the joint document were made as a 
result of the comments.

II. What is EPA's analysis of MPCA's submittal?

A. Gopher Resource, LLC, and General SIP Conditions

    The existing Order refers to the facility as ``Gopher Smelting and 
Refining Company,'' whereas the joint document submitted by MPCA on 
July 29, 2010, correctly identifies the facility as ``Gopher Resource, 
LLC.'' This change reflects only a change of ownership structure, 
whereas the actual ownership remained largely unchanged. General SIP 
conditions, such as those that describe when facility changes require a 
SIP revision, have been reworded or clarified to fit with MPCA's 
current format for such conditions. Additional conditions that allowed 
the facility a choice in compliance options in the Order have been 
updated to reflect the compliance choice made by Gopher. Lastly, the 
joint document organizes and names emissions units differently than the 
Order, thereby reflecting current operations. Aligning the current name 
of the facility into the SIP prevents potential confusion as to the 
correct name of the facility, and the enforceable conditions in the 
joint document now apply to the same properly designated entity on both 
the State and Federal levels. Therefore, EPA finds the updated name of 
Gopher Resource, LLC, to be approvable. The changes to the general SIP 
conditions as outlined in the joint document pertain to format only; 
these changes ensure that MPCA has been consistent with other joint 
documents, and because there are no significant emissions changes that 
stem from formatting, rewording, or clarifications, EPA finds these 
revisions to be approvable. Gopher has selected a set of compliance 
options based on EPA regulations and guidelines, or based on the 
previously approved Order, and therefore, EPA finds these changes to be 
approvable. Organizing emissions units to reflect current operations 
aligns State and Federal nomenclature; therefore, EPA finds these 
changes to be approvable.

B. Emissions Units, Processes, and Limits

    The State-submitted joint document contains updated emissions units 
and processes that reflect current operations. Flue dust agglomeration 
is no longer a process at Gopher, nor does there exist a central vacuum 
system. The existing Order refers to six refining kettles instead of 
the ten that are currently in operation; these ten kettles are 
reflected in the joint document. These kettles vent to the main stack 
SV003, and although there has been a change in the specifics of the 
emissions units, the emissions limits for SV003 in the joint document 
are identical to those found in the Order. Therefore, EPA does not 
expect a net effect on the emissions exiting at SV003, nor does EPA 
expect a violation of the 1978 Pb NAAQS to occur as a result of these 
added units.
    Gopher has added two additional Torit dust collectors that collect 
fugitive Pb emissions from raw material handling, the battery breaking 
dock, material transfer rooms, and the furnace areas. These dust 
collectors exhaust into the new Torit stack SV008, and the purpose of 
these collectors is to control dust that was observed to ``leak'' from 
various points, i.e., it was assumed that the dust at these new 
collectors was going into Torit stack SV002. Emissions that were 
assumed to be entering the SV002 in their entirety are now being split 
between SV002 and SV008.
    MPCA performed a modeling analysis showing that the added Torit 
stack SV008 would not result in negative ambient impacts. The modeling 
shows that the area of maximum impact, on a monthly average level, is 
0.78 [mu]g/m3. Monitoring data from Air Quality System 
ID 270370465 has corroborated compliance with the 1978 Pb 
NAAQS; the highest quarterly average recorded between 2007 and 2009 
(consistent with the form of the 1978 Pb NAAQS) was 0.70 [mu]g/
m3. Available data from 2010 have demonstrated compliance 
with the 1978 Pb NAAQS as well. Based on the static emission limits, as 
well as supporting modeling and monitoring data, EPA finds the 
requested revisions concerning emissions units, processes, and limits 
to be approvable.

C. Stack Emissions Testing

    MPCA requested in the joint document that the stack testing 
frequency be changed from once every year to once every two years. The 
basis of the request is found in the Amendments to the National 
Emission Standards for Hazardous Air Pollutants (NESHAP) From Secondary 
Lead Smelting (62 FR 32209). The amendments affirm that if a compliance 
test shows a source emitted Pb compounds at 1.0 milligram of lead per 
dry standard cubic meter (0.00044 grains of lead per dry standard cubic 
foot) or less during the time of the compliance test, the owner or 
operator of the lead smelter would be allowed up to 24 calendar months 
from the previous compliance test to conduct the next annual compliance 
test for Pb compounds. MPCA submitted emissions test reports from 2006 
and 2008; the highest average concentration was recorded in 2006 at the 
main stack, and the concentration was .16 milligrams of lead per dry 
standard cubic meter. This value is 16% of the bi-annual stack testing 
frequency threshold. The facility has been complying with the NESHAP 
for secondary lead smelters since December 23, 1997, and to the extent 
that the NESHAP requirements are more stringent than the requirements 
contained in the SIP, EPA approves Gopher's request for bi-annual stack 
testing.

D. Consistency With the Existing Order

    EPA did not act on MPCA's November 18, 2002, joint document because 
provisions in that document would remove contingency plan elements from 
the maintenance plan. In its July 29, 2010, submittal, MPCA included 
contingency plans and associated record keeping requirements identical 
to those found in the Order. EPA finds the inclusion of contingency 
measures in the joint document to be appropriate and necessary in 
conjunction with section 175A(d) of the CAA.
    Significant changes have been discussed in detail already, and EPA 
has determined that any other minor deviations from the existing Order 
are de minimis. For example, MPCA requested that mobile equipment 
traffic be allowed on non-paved areas for maintenance and inspection 
purposes. These activities are not expected to have a negative impact 
on the surrounding ambient air quality.
    EPA finds that all elements included in the existing Order are 
included in the July 29, 2010, joint document. Adopting the joint 
document in lieu of the Order should not result in any applicability, 
emissions, or otherwise detrimental gaps. EPA also expects the Eagan 
area of Dakota County to continue to meet the 1978 Pb NAAQS.

[[Page 2266]]

E. Rescission of the Order

    On July 27, 2010, MPCA revoked the Order and subsequent amendments 
to the Order. For the reasons discussed in previous sections, the joint 
document submitted by MPCA on July 29, 2010, is appropriate and 
sufficient to serve as the only document that contains SIP conditions 
for Gopher Resource, LLC. As such, EPA finds it appropriate to rescind 
the original Order from the SIP.

III. What action is EPA taking?

    EPA is approving a joint Title I/Title V document submitted by MPCA 
for Gopher Resource, LLC. The conditions labeled, ``Title I Condition: 
SIP for Lead'' will replace the existing Order as the enforceable SIP 
conditions for the facility. Specifically, these conditions can be 
found in Air Emission Permit No. 03700016-003. The joint document 
includes elements necessary for Dakota County to continue meeting the 
1978 Pb NAAQS. EPA is simultaneously rescinding the existing Order from 
the SIP.
    We are publishing this action without prior proposal because we 
view this as a noncontroversial amendment and anticipate no adverse 
comments. However, in the Proposed Rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the State plan if relevant adverse 
written comments are filed. This rule will be effective March 14, 2011 
without further notice unless we receive relevant adverse written 
comments by February 14, 2011. If we receive such comments, we will 
withdraw this action before the effective date by publishing a 
subsequent document that will withdraw the final action. All public 
comments received will then be addressed in a subsequent final rule 
based on the proposed action. EPA will not institute a second comment 
period; therefore, any parties interested in commenting on this action 
should do so at this time. If we do not receive any comments, this 
action will be effective March 14, 2011.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve State choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves State law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by State 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the State, 
and EPA notes that it will not impose substantial direct costs on 
Tribal governments or preempt Tribal law.
    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 action 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 March 14, 2011. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the Proposed Rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking. 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, Lead, Reporting and recordkeeping requirements.

    Dated: December 29, 2010.
Susan Hedman,
Regional Administrator, Region 5.
    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart Y--Minnesota

0
2. In Sec.  52.1220 the table in paragraph (d) is amended by removing 
the entry for ``Gopher Smelting and Refining Company'' and adding an 
entry for ``Gopher Resource, LLC'' in its place to read as follows:


Sec.  52.1220  Identification of plan.

* * * * *
    (d) * * *

[[Page 2267]]



                                 EPA-Approved Minnesota Source-Specific Permits
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                                                      State effective
          Name of source              Permit No.           date          EPA approval date         Comments
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                                                  * * * * * * *
Gopher Resource, LLC.............      03700016-003          06/29/10  01/13/11, [Insert     Only conditions
                                                                        page number where     cited as ``Title I
                                                                        the document          condition: SIP for
                                                                        begins].              Lead NAAQS.''
 
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[FR Doc. 2011-337 Filed 1-12-11; 8:45 am]
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