Designation of Areas for Air Quality Planning Purposes; Montana; Redesignation Request and Associated Maintenance Plan for East Helena SO2, 34090-34102 [2019-15111]
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III. Proposed Action
7. Review of Current Monitoring
Strategy
For progress reports for the first
implementation period, the provisions
under 40 CFR 51.308(g) require a review
of the State’s visibility monitoring
strategy and any modifications to the
strategy as necessary. In its Progress
Report, Colorado summarizes the
existing monitoring network in the State
to monitor visibility at the twelve Class
I areas within the State, which consists
of Colorado relying on the national
IMPROVE network to meet monitoring
and data collection goals. There are
currently six IMPROVE sites, which the
State explains, continue to provide
adequate and complete data records.50
In the Progress Report, the State finds
that the current monitoring network is
sufficient at this time to monitor
progress towards RPGs.51 The IMPROVE
monitoring network is the primary
monitoring network for regional haze,
both nationwide and in Colorado.
The EPA proposes to find that
Colorado has adequately addressed the
applicable provisions of 40 CFR
51.308(g) regarding a monitoring
strategy because the State reviewed its
visibility monitoring strategy and
determined that no further
modifications to the strategy are
necessary.
B. Determination of Adequacy of the
Existing Regional Haze Plan
The provisions under 40 CFR
51.308(h) require states to determine the
adequacy of their existing
implementation plan to meet existing
goals. Colorado’s Progress Report
includes a negative declaration
regarding the need for additional actions
or emissions reductions in Colorado
beyond those already in place and those
to be implemented by 2018 according to
Colorado’s SIP.52 53
The EPA proposes to conclude that
Colorado has adequately addressed 40
CFR 51.308(h) because the visibility
trends in the majority of Class I areas in
the State indicate that the relevant RPGs
will be met via emission reductions
already in place and therefore the SIP
does not require substantiative revisions
at this time to meet those RPGs.
50 Colorado
Progress Report, p. 6.
Progress Report, p. 37.
52 Colorado Progress Report, p. 38.
53 Additionally, Colorado’s Report explains that
the State ‘‘actively participates in maintenance of
commitments associated with RH plan
requirements’’ and continues ‘‘to work
collaboratively with the scientific research
community to refine our understanding of air
quality issues in Colorado.’’ Colorado Progress
Report, p. 38.
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51 Colorado
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The EPA is proposing to approve
Colorado’s May 2, 2016, Regional Haze
Progress Report as meeting the
applicable regional haze requirements
set forth in 40 CFR 51.308(g) and
51.308(h).
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
Act and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely proposes to approve 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 Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because SIP approvals are
exempted under Executive Order 12866;
• 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 CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
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health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the proposed rule does
not have tribal implications and will not
impose substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations,
Greenhouse gases, Lead, Nitrogen
dioxide, Ozone, Particulate matter,
Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 11, 2019.
Gregory Sopkin,
Regional Administrator, EPA Region 8.
[FR Doc. 2019–15110 Filed 7–16–19; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2019–0340; FRL–9996–64–
Region 8]
Designation of Areas for Air Quality
Planning Purposes; Montana;
Redesignation Request and
Associated Maintenance Plan for East
Helena SO2 Nonattainment Area
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
On October 26, 2018, the
Montana Department of Environmental
Quality (MDEQ) submitted a request to
the EPA for redesignation of the East
Helena, Montana 1971 sulfur dioxide
(SO2) National Ambient Air Quality
Standards (NAAQS) nonattainment area
(NAA) to attainment, and to approve a
State Implementation Plan (SIP)
revision for a maintenance plan of the
East Helena area. After review and
analysis of Montana’s submittal, the
EPA is proposing to redesignate the East
Helena, Montana SO2 nonattainment
area to attainment for the 1971 primary
24-hour and annual, and secondary 3hour SO2 NAAQS, and to approve
SUMMARY:
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Federal Register / Vol. 84, No. 137 / Wednesday, July 17, 2019 / Proposed Rules
Montana’s SIP revision for continued
maintenance and attainment of the 1971
primary 24-hour and annual, and
secondary 3-hour SO2 NAAQS in East
Helena, Montana.
DATES: Written comments must be
received on or before August 16, 2019.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2019–0340, to the Federal
Rulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from
www.regulations.gov. The EPA may
publish any comment received to its
public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. The EPA will
generally not consider comments or
comment contents located outside of the
primary submission (i.e., on the web,
cloud, or other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
Docket: All documents in the docket
are listed in the 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
www.regulations.gov or in hard copy at
the Air and Radiation Division,
Environmental Protection Agency
(EPA), Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202–1129. The EPA
requests that if at all possible, you
contact the individual listed in the FOR
FURTHER INFORMATION CONTACT section to
view the hard copy of the docket. You
may view the hard copy of the docket
Monday through Friday, 8:00 a.m. to
4:00 p.m., excluding federal holidays.
FOR FURTHER INFORMATION CONTACT:
Adam Clark, (303) 312–7104,
clark.adam@epa.gov, or Clayton Bean,
(303) 312–6143, bean.clayton@epa.gov,
Air and Radiation Division, U.S. EPA,
Region 8, Mail-code 8ARD–QP, 1595
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Wynkoop Street, Denver, Colorado
80202–1129.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
the EPA.
I. Background for the EPA’s Proposed
Actions
A. The 1971 SO2 NAAQS
In 1971, the EPA promulgated new
primary and secondary NAAQS for
SO2.1 The primary standard addressed
24-hour and annual average ambient
SO2 concentrations. The secondary
standard addressed 3-hour and annual
average ambient SO2 concentrations. In
1973, the EPA revoked the secondary
annual average standard.2 Thus, the
1971 SO2 NAAQS is comprised of a
primary 24-hour standard of 0.14 parts
per million (ppm) not to be exceeded
more than once per year, a primary
annual average standard of 0.03 ppm,
and a secondary 3-hour standard of 0.5
ppm not to be exceeded more than once
per year.3
On June 2, 2010, the EPA revised the
primary SO2 NAAQS, thus establishing
a new 1-hour SO2 standard of 75 parts
per billion (ppb). Although the 1971
primary SO2 NAAQS have been revised
to the 2010 1-hour SO2 NAAQS, today’s
proposed action only addresses the 1971
SO2 NAAQS for the East Helena NAA.
The EPA notes that all of Lewis and
Clark County, Montana, including the
East Helena SO2 NAA, is designated as
‘‘attainment/unclassifiable’’ under the
2010 SO2 NAAQS.4
B. Nonattainment Designation and
Development of the East Helena SO2
Attainment SIP
The American Smelting and Refining
Company (ASARCO) lead smelter began
operating in 1888 in the city of East
Helena, Montana. ASARCO has been the
cause of SO2 violations throughout the
history of the East Helena area,5 as will
be described further below, and was
permanently shut down in 2001.]
On September 19, 1975 the EPA
approved a revision to the Montana SIP
for SO2 control strategies providing for
attainment and maintenance of the 1971
SO2 NAAQS near the ASARCO lead
smelter in East Helena. SIP-approved
emission limitations for SO2 at the
FR 8186, April 30, 1971.
FR 25678, September 14, 1973.
3 Table of historical SO NAAQS. See https://
2
www3.epa.gov/ttn/naaqs/standards/so2/s_so2_
history.html.
4 See 40 CFR 81.327. See also the EPA’s ‘‘Air
Quality Designations for the 2010 Sulfur Dioxide
(SO2) Primary National Ambient Air Quality
Standard—Round 3,’’ 83 FR 1098, January 9, 2018.
5 60 FR 5313, January 27, 1995.
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2 38
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ASARCO smelter were limited to 80
tons per day (tpd) and 20 tons per six
hours.6
Section 107(d) of the 1977 CAA
Amendments gave the EPA authority to
designate areas as nonattainment
without a state’s request.7 On March 3,
1978 the EPA designated the ‘‘East
Helena Area’’ 8 as nonattainment for the
primary and secondary SO2 NAAQS.9
The East Helena SO2 NAA is
demarcated by a circle centered on the
previously existing ASARCO sinter
storage building 10 with a radius of 0.67
km (0.43 miles).
On November 20, 1980 the EPA
conditionally approved a SIP revision
for the East Helena SO2 NAA. This SIP
revision identified the continued SO2
violations as being caused by low-level
downwash emissions from the three
110-foot stacks serving the smelter’s
blast furnace operations. The control
strategy identified in the SIP revision
included replacing the three 110-foot
stacks with a single 425-foot stack and
setting new emission limits on the 425foot stack.11 The EPA’s action was
conditioned upon adequate
demonstration of good engineering
practice (GEP) stack height for the new
blast furnace stack, and revised
dispersion modeling if GEP height was
determined to be below 375 feet.
ASARCO completed a field tracer study
demonstration in 1982, and
subsequently proceeded to complete
construction of its new stack based on
the study results justifying a stack
height of 375 feet as necessary to
overcome the effects of downwash,
which had been identified as the cause
of monitored ambient SO2 violations
near the smelter site.12 On July 5, 1983
the EPA proposed to approve 13 the SIP
and GEP demonstration as satisfying the
conditional approval requirements, yet
pending litigation 14 over federal stack
6 40
FR 43216, September 19, 1975.
the EPA’s initial designation of areas as
attainment/unclassifiable or nonattainment in 1978,
however, subsequent designations could be made
only at a State’s request. In that same year, the EPA
published, for the first time, a list of all section
107(d) nonattainment areas in 40 CFR part 81,
which included East Helena.
8 Generally, where the EPA promulgated a
designation for SO2 the minimum area was to be the
county in which the violating monitoring site was
located. If states had monitoring data to substantiate
the size of areas they designated, they would be
acceptable by the EPA regardless of size. See 43 FR
8962, March 3, 1978.
9 43 FR 8962, March 3, 1978.
10 NAD27 UTM Zone 12, 429484 mE, 5158997
mN.
11 45 FR 76685, November 20, 1980.
12 60 FR 5313, January 27, 1995.
13 48 FR 30696 July, 5, 1983.
14 Sierra Club v. Environmental Protection
Agency, 719 F.2d 436 (D.C. Cir. 1983).
7 After
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height regulations postponed final EPA
action until years later.
The CAA Amendments of 1990
reaffirmed the nonattainment
designation of East Helena with respect
to the primary and secondary SO2
NAAQS under section 107(d).15
Pursuant to the CAA Amendments of
1990, any state that lacked a fullyapproved SIP complying with the
requirements of the Act for an area
designated as nonattainment with
respect to the primary SO2 NAAQS, was
to resubmit a SIP fully meeting the
requirements of the CAA by May 15,
1992. For the secondary SO2 NAAQS
SIP for East Helena, the EPA established
November 15, 1993 as the submittal due
date.16
Given that the East Helena primary
SO2 SIP was not submitted by May 15,
1992, the EPA made a finding of failure
to submit, pursuant to section 179 of the
Act, and notified the Governor in a
findings letter dated June 16, 1992.17
The date of the findings letter started
the mandatory 18-month sanction clock
and established a two-year deadline by
which the EPA was required to
promulgate a federal implementation
plan (‘‘FIP’’).
In our October 7, 1993 ‘‘Deadline for
SIP Submittal’’ action (58 FR 52237) the
EPA recognized that for the ASARCO
smelter, the primary and secondary SO2
NAAQS do not require the same level of
controls. Modeling results indicated an
additional 35 percent reduction in
emissions was needed (beyond those
reductions to achieve the primary SO2
NAAQS) in order to comply with the
secondary SO2 NAAQS.18 We therefore
concluded that attainment of the
secondary SO2 NAAQS will require
significant emission reductions, beyond
what was required for attainment of the
primary SO2 NAAQS.
After the East Helena primary SO2
Attainment SIP was submitted by the
State on March 30, 1994, the EPA found
the submittal complete pursuant to
section 110(k)(1) of the Act and notified
the Governor accordingly in a letter
dated May 12, 1994. This completeness
determination corrected the State’s
deficiency and, therefore, terminated
the 18-month sanctions clock for the
15 See 56 FR 56694, November 6, 1991,
‘‘Designation of Areas for Air Quality Planning
Purposes’’ at 56706.
16 The Act did not explicitly specify a deadline
for the secondary SO2 NAAQS, however, section
172(b) provides that the Administrator shall
establish a schedule for plan submissions, but that
such submissions shall not extend longer than three
years from the date of nonattainment designation.
17 57 FR 48614, October 27, 1992.
18 58 FR 52237, October 7, 1993.
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primary SO2 SIP under section 179 of
the Act.19
On January 27, 1995 the EPA fully
approved the East Helena primary SO2
Attainment SIP for the East Helena
NAA. The EPA noted in that approval
action that Montana’s SIP revision only
addressed the 24-hour and annual
primary SO2 NAAQS, and did not
address the 3-hour secondary SO2
NAAQS.20 The modeling conducted by
the State to demonstrate attainment of
the 1971 primary NAAQS by the
applicable attainment deadline of
November 15, 1995, which the EPA
approved in our January 27, 1995 final
rulemaking, will be discussed further in
Section III.A. of today’s proposed
rulemaking action.
As the State of Montana failed to
submit the East Helena secondary SO2
Attainment SIP by November 15, 1993,
the EPA acted pursuant to the nondiscretionary requirement of section 179
of the Act by notifying the Governor in
a findings letter dated January 19, 1994,
of the State’s failure to submit the SO2
SIP secondary standard.21 In the letter,
the EPA also notified Montana of
sanctions available to the EPA under
section 110(m) that could be imposed,
including highway funding sanctions,
2:1 emission offsets, and promulgation
of a FIP under section 179(a). The date
of the findings letter started the
mandatory 18-month sanction and the
two-year FIP clocks. The sanction clock
expired due to inaction by the State on
July 19, 1995, and the FIP clock expired
on January 19, 1996. The EPA did not
promulgate a FIP upon expiration of the
FIP clock. As the sanction clocks were
never stayed or deferred, emissions
offsets and highway sanctions were
imposed by operation of law and have
remained in place to date.22
The State of Montana indicated that
they were in the process of revising the
3-hour secondary SO2 SIP for East
Helena when ASARCO shut down
operations on April 4, 2001.23 Initially,
the ASARCO shutdown was to be a
suspension of operations for an
indeterminate amount of time.
Accordingly, ASARCO did not request
revocation of their Title V operating
permit, nor their Montana Air Quality
Permit (MAQP #2557–12). ASARCO’s
indeterminate suspension of operations
19 60
FR 5313, January 27, 1995.
20 Ibid.
21 This letter is available in the docket for this
action.
22 See https://www.fhwa.dot.gov/environment/
air_quality/highway_sanctions/sanctionsclock.cfm
for the status of sanction clocks under the CAA,
including East Helena’s status.
23 See ‘‘East Helena SO Redesignation Request’’,
2
October 26, 2018, at 5.
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later officially became a permanent
shutdown, and the State of Montana
never resumed work on the required
secondary SO2 SIP. Therefore, the 3hour secondary SO2 SIP revision for
East Helena was never submitted to the
EPA, causing the aforementioned
sanctions to remain in place. On April
4, 2007, ASARCO’s Title V permit
(#OP2557–04) expired without renewal,
and on January 5, 2010, MAQP #2557–
12 was formally revoked by the State of
Montana.24
On November 25, 2002 the EPA made
a technical correction to the East Helena
SO2 SIP pursuant to our authority under
110(k)(6) of the CAA. (67 FR 70554).
Specifically, we clarified that in our
January 27, 1995 approval of the East
Helena primary SO2 Attainment SIP (60
FR 5313), we failed to indicate that this
approval superseded our approval of the
East Helena SO2 Attainment SIP on
September 19, 1975 and terminated the
East Helena SO2 Attainment SIP
approved on May 1, 1984. The
November 25, 2002 action corrected
these errors.
On October 26, 2018, the State of
Montana submitted to the EPA a request
for redesignation of the East Helena SO2
NAA to attainment for the 1971 primary
and secondary NAAQS (hereafter ‘‘East
Helena SO2 Redesignation Request’’),
and a SIP revision containing a
maintenance plan for the East Helena
attainment area (hereafter ‘‘East Helena
SO2 Maintenance Plan’’).25 The details
of Montana’s East Helena SO2
Redesignation Request and Maintenance
Plan are discussed in greater detail
below.
C. Additional History of the East Helena
SO2 Nonattainment Area
Between 1969 and 1983, concerns of
contamination in the East Helena area
led to investigations by the EPA and the
State of Montana. High metal levels
were found in air, soil, surface water,
and dust in and around East Helena. In
1984, the EPA listed the 140-acre
ASARCO smelter site and about 2,000
additional acres of surrounding land 26
on the Superfund program’s National
Priorities List (NPL).27 In 1998, the
24 The request to revoke MAQP (#2557–12), and
MDEQ’s letter in response confirming revocation,
can be found in Appendix A of Montana’s October
26, 2018 ‘‘Request for Redesignation of East Helena
SO2 Nonattainment Area.’’
25 The submissions are collectively referred to as
the ‘‘East Helena SO2 Redesignation Request and
Maintenance Plan.’’
26 The East Helena Superfund site encompasses
and extends beyond the exterior boundary of the
East Helena SO2 NAA.
27 ‘‘Fourth Five-Year Review Report for the East
Helena Superfund Site,’’ September 2016. See
https://semspub.epa.gov/work/08/1768518.pdf.
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United States Department of Justice
issued a Consent Decree requiring
ASARCO to resolve major
environmental compliance issues under
the Resource Conservation and
Recovery Act (RCRA). ASARCO began
dismantling the smelter site following
the 2001 shutdown. ASARCO filed for
bankruptcy in 2005, and on June 5,
2009, the Bankruptcy Court approved
the Consent Decree and a Settlement
Agreement.28 In part, the settlement
agreement transferred the East Helena
ASARCO properties and administration
thereof to the appointed Custodial
Trustee, the Montana Environmental
Trust Group (METG), who assumed
responsibility of corrective action
cleanup under oversight of the EPA. The
three remaining smelter stacks were
felled in a controlled demolition on
August 4, 2009.29 Later, in December
2009, the smelter site was officially
transferred from ASARCO to the
METG.30
As of mid-2019 all that remains of the
former ASARCO smelter site is a 65-acre
slag pile, and 65-acres of contaminated
land that has been capped with an
evapotranspiration cover. Restorative
actions have allowed open meadows,
grasslands, and wetlands to flourish on
the former site; and one and a half miles
of the Prickly Pear Creek has been
successfully restored.31 The site is
privately held by METG, and public
access is restricted. In the future, deed
restrictions will be placed on the
property that will prevent another
facility from being constructed on the
cap.
II. CAA Requirements for
Redesignation Requests and
Maintenance Plans
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A. Statutory Provisions
The CAA provides the requirements
for redesignating a nonattainment area
to attainment. Specifically, section
107(d)(3)(E) of the CAA allows for
redesignation of a nonattainment area
provided that: (1) The Administrator
determines that the area has attained the
applicable NAAQS; (2) the
Administrator has fully approved the
applicable implementation plan for the
This document is also available in the docket for
this action.
28 Ibid.
29 See https://missoulian.com/news/state-andregional/asarco-smokestacks-in-east-helenatoppled-in-early-morning-demolition/article_
a86273aa-88e1-11de-9466-001cc4c03286.html.
30 ‘‘Fourth Five-Year Review Report for the East
Helena Superfund Site,’’ September 2016. See
https://semspub.epa.gov/work/08/1768518.pdf.
This document is also available in the docket for
this action.
31 See https://www.mtenvironmentaltrust.org/
east-helena/photo-galleries/east-helena-site-videos/.
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area under section 110(k); (3) the
Administrator determines that the
improvement in air quality is due to
permanent and enforceable reductions
in emissions resulting from
implementation of the applicable SIP
and applicable federal air pollutant
control regulations and other permanent
and enforceable reductions; (4) the
Administrator has fully approved a
maintenance plan for the area as
meeting the requirements of section
175A; and (5) the state containing such
area has met all requirements applicable
to the area for purposes of redesignation
under section 110 and part D of title I
of the CAA.
CAA section 175A provides the
general framework for maintenance
plans. The maintenance plan must
provide for maintenance of the NAAQS
for at least 10 years after redesignation,
including any additional control
measures as may be necessary to ensure
such maintenance. In addition,
maintenance plans are to contain such
contingency provisions as we deem
necessary to assure the prompt
correction of a violation of the NAAQS
that occurs after redesignation. The
contingency measures must include, at
a minimum, a requirement that the state
will implement all control measures
contained in the nonattainment SIP
prior to redesignation. Beyond these
provisions, however, CAA section 175A
does not define the content of a
maintenance plan.
B. EPA Guidance Applicable to the East
Helena SO2 Redesignation Request and
Maintenance Plan
On April 16, 1992, the EPA provided
guidance on redesignation in the
General Preamble for the
Implementation of title I of the CAA
Amendments of 1990 (57 FR 13498) and
supplemented this guidance on April
28, 1992 (57 FR 18070). The EPA has
provided further guidance on processing
redesignation requests in several
guidance documents. Our primary
guidance on maintenance plans and
redesignation requests is a September 4,
1992 memo from John Calcagni, entitled
‘‘Procedures for Processing Requests to
Redesignate Areas to Attainment’’
(hereafter referred to as the ‘‘Calcagni
Memo’’). Specific guidance on SO2
redesignations also appears in a January
26, 1995 memo from Sally L. Shaver,
entitled ‘‘Attainment Determination
Policy for Sulfur Dioxide Nonattainment
Areas’’ (hereafter referred to as the
‘‘Shaver Memo’’). The recommendations
for addressing the redesignation request
requirements of CAA section
107(d)(3)(E) and the maintenance plan
requirements of 175A provided in these
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34093
guidance documents will be referenced
throughout the forthcoming sections.
Guidance specific to areas lacking
ambient monitoring data, and whose
historic violations were caused by a
major point source that is no longer in
operation, is found in an October 18,
2000 memo from John S. Seitz entitled
‘‘Redesignation of Sulfur Dioxide
Nonattainment Areas in the Absence of
Monitored Data’’ (hereafter referred to as
the ‘‘Seitz Memo’’). The Seitz Memo
exempts eligible areas from the
maintenance plan requirements of
continued monitoring. The Seitz Memo
also describes how attainment and
continued maintenance should be
demonstrated in such areas and how
sources currently shut down should be
treated if they resume operation. The
EPA finds that the East Helena SO2
NAA is an appropriate area for
application of the guidance laid out in
the Seitz Memo. Therefore, as will be
discussed further in the EPA’s review of
the State’s 175A maintenance plan
(Section III.B.), the EPA is proposing to
find that the East Helena maintenance
area should not require ambient
monitoring to verify continued
attainment.
III. EPA’s Evaluation of the East Helena
SO2 Redesignation Request and
Maintenance Plan
A. EPA Review of CAA Section
107(d)(3)(E) Requirements
The EPA’s evaluation of the East
Helena SO2 Redesignation Request was
based on consideration of the five
redesignation criteria provided under
CAA section 107(d)(3)(E). We analyze
each of these criteria individually,
below. Based on this analysis, we
propose to find that the State of
Montana has met the redesignation
criteria of CAA section 107(d)(3)(E).
1. Criteria (1) Determination That the
East Helena Area Has Attained the 1971
SO2 NAAQS
a. Review of Ambient Monitoring and
Emissions Data
In the East Helena SO2 Redesignation
Request, the State primarily relied on
historic SO2 ambient data which
indicated attainment of the 1971
primary and secondary NAAQS for the
15 years preceding the ASARCO facility
shutdown in 2001. Ambient SO2
monitoring began in the East Helena
area as early as 1968. An enhanced
ambient SO2 monitoring network was
established in 1993. This was the result
of extensive efforts between ASARCO
and the State of Montana (in
coordination with the EPA) to identify
maximum pollutant impact areas using
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tracing studies, monitored atmospheric
dispersion parameters, dispersion
modeling, and ambient SO2
concentrations.32 The ambient SO2
monitoring network for the East Helena
area was discontinued on May 31, 2001
following the ASARCO shutdown.
After reviewing the East Helena SO2
Redesignation Request and the historic
ambient SO2 monitoring data, the EPA
concludes that the monitoring data were
collected, and quality assured in
accordance with EPA guidelines.33
Table 1 below shows for all of the 1971
SO2 NAAQS the highest monitored SO2
value in the East Helena area annually
from 1987 to 2001 throughout the
enhanced monitoring network.34
TABLE 1—AMBIENT SO2 MONITORING IN EAST HELENA
[1987–2001]
Year
Max 3-hour
value
(500 PPM
secondary
NAAQS)
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
380
446.6
396.6
443.4
406.6
* 279
* 201.6
230.6
356
223.3
166
199
151
188.3
* 196.6
Max 24-hour
block average
(140 PPB
primary
NAAQS)
Monitor
Water Tank ..........................
Water Tank ..........................
Water Tank ..........................
Water Tank ..........................
Water Tank ..........................
Kennedy Park ......................
Water Tank ..........................
Water Tank ..........................
Microwave ............................
McClellan Rd #6 ..................
McClellan Rd #6 ..................
Water Tank ..........................
Water Tank ..........................
McClellan Rd #6 ..................
McClellan Rd #6 ..................
114.6
107.1
120
67.1
57.5
*123
* 54.3
78.2
112.7
56
62.7
42.7
46.6
62
* 91.2
Max annual
average
(30 PPB annual primary
NAAQS)
Monitor
Water Tank ..........................
Water Tank ..........................
Water Tank ..........................
Water Tank ..........................
Water Tank ..........................
Kennedy Park ......................
Water Tank ..........................
McClellan Rd #6 ..................
McClellan Rd #6 ..................
McClellan Rd #6 ..................
McClellan Rd #6 ..................
Water Tank ..........................
McClellan Rd #6 ..................
McClellan Rd #6 ..................
McClellan Rd #6 ..................
14.88
9.35
6.28
6.95
5.01
* 12.93
* 5.35
10.41
10.76
9.24
5.64
5.33
5.23
8.61
* 5.71
Monitor
Microwave.
Water Tank.
Water Tank.
Water Tank.
Kennedy Park.
Kennedy Park.
Kennedy Park.
Kennedy Park.
Microwave.
McClellan Rd #4.
Water Tank.
Kennedy Park.
Kennedy Park.
Kennedy Park.
McClellan Rd #6.
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* Indicates site did not have at least 75% data completeness for all 4 quarters this year.35
As Table 1 shows, there were no
monitored violations of any of the 1971
SO2 NAAQS from 1987 until the
ASARCO shutdown in 2001 at which
time monitoring was discontinued. For
the purposes of determining whether an
area has attained the SO2 NAAQS
predicated upon monitoring data, the
EPA requires no fewer than two
consecutive years of clean data (i.e.,
eight quarters with no observed
violations) as recorded in EPA’s Air
Quality System (AQS).36 In addition, to
qualify for attainment determination
purposes, the annual average and
second-highest 24-hour average
concentrations must be based upon
hourly data that are at least 75 percent
complete in each calendar quarter.37
The East Helena NAA has recorded
more than eight consecutive quarters of
quality-assured monitoring data that is
free of NAAQS violations while
ASARCO operated. Specifically, the
three enhanced network monitors
(Microwave, Water Tank, Kennedy Park)
operating in the period between 1987
and 1992 each showed five consecutive
years (or 20 consecutive quarters) of
complete, quality-assured attaining
monitoring data from 1987 to 1991. As
shown, the East Helena enhanced SO2
monitoring network experienced data
completeness issues in 1992 and 1993.
Complete data are available for every
year from 1994 to 2000 for all five
enhanced network monitors (the
aforementioned and the McClellan Road
#4 and McClellan Road #6 monitors,
both added as part of the enhanced
network in 1993), which show seven
consecutive years (or 28 consecutive
quarters) of complete, quality-assured
attaining monitoring data from 1994–
2000. Further, from 1996 until 2001
(between the period of time from EPA’s
approval of the 1995 East Helena
primary SO2 Attainment SIP until
ASARCO’s shutdown), none of the East
Helena area ambient SO2 monitors
recorded a maximum value equivalent
to or above 50% of a primary or
secondary 1971 SO2 NAAQS. This
decrease in monitored emissions is in
alignment with emissions data, as the
average annual SO2 emissions from
ASARCO dropped from 14,792 tons per
year (tpy) from 1990–1995, to 10,000 tpy
from 1996–2000.38 These data indicate
that the East Helena area was attaining
the NAAQS before the ASARCO
closure.
In the East Helena SO2 Redesignation
Request, the State also measured these
monitor data alongside the emissions
from the two SO2 emitting sources in or
near the East Helena NAA.39 The State
asserted that these emissions data,
presented in Table 2, below, indicate
that the attaining SO2 monitor values
were driven almost entirely by SO2
emissions from ASARCO, and that it is
therefore reasonable to conclude that
the monitored concentrations would
have decreased substantially (and thus
continued attaining the NAAQS)
following the ASARCO shutdown.
32 ‘‘Primary SO NAAQS SIP Revision for East
2
Helena, Montana, Technical Support Document,
October 4, 1994,’’ at pages 13–15.
33 Calcagni Memo at 2.
34 From 1986 to 1992 six SO monitoring sites
2
operated. One site was removed June 1992. In 1993,
the enhanced monitoring network added eight
additional SO2 sites. In 1997, eight SO2 sites were
removed from the network, thereby leaving five
(Microwave, McClellan Creek Road #4, McClellan
Creek Road #6, Water Tank, Kennedy Park) SO2
monitoring sites in the East Helena area. These five
remaining sites, together making up the ‘‘enhanced
monitoring network,’’ were located in areas of
historic violations and modeled maximum
pollutant impact areas.
35 The data collected in 2001 did not meet data
completeness owing to the ASARCO facility
shutdown in April 2001, after which the monitoring
network was discontinued in June 2001.
36 See EPA Memo ‘‘Section 107 Questions and
Answers,’’ G.T. Helms, December 23, 1983, in the
docket for this action.
37 40 CFR 50.4.
38 See East Helena SO Redesignation Request and
2
Maintenance Plan, at 8.
39 The EPA is not including emissions from the
American Chemet facility, which is located within
the East Helena SO2 NAA, because this facility has
not emitted a ton of SO2 in any single year since
1990.
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34095
TABLE 2—EMISSIONS DATA FOR SO2 SOURCES 40 IN AND NEAR THE EAST HELENA SO2 NAA
ASARCO
emissions
Year
1996
1997
1998
1999
2000
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
As shown in Table 2, the Ash Grove
Cement plant (‘‘Ash Grove’’) contributed
less than 2.5% of total emissions in or
near the East Helena NAA area in each
of the final five years of complete
ambient SO2 monitoring. Ash Grove is
located outside the geographic boundary
of the East Helena SO2 NAA, at a
distance of 3 km to the south of the
NAA’s southern boundary and remains
in operation. Ash Grove’s allowable SO2
emissions are limited to 386 tpy by its
MAQP #2005–13 and Title V operating
permit #OP2005–09.41 Based on the
emissions data provided above, and
consistent with our past conclusions
regarding the East Helena NAA,42 the
EPA proposes to concur with MDEQ’s
assertion that ASARCO emitted nearly
all of the SO2 in the East Helena area
prior to its 2001 shutdown, and to
concur with the State that monitored
SO2 concentrations in the area would
have decreased substantially following
the ASARCO shutdown.
As Montana submitted the East
Helena SO2 Redesignation Request to
the EPA on October 26, 2018,
contemporaneous ambient SO2
monitoring data was not available due
to the discontinuation of the East
Helena monitoring network on May 31,
2001. Generally, for a redesignation, the
most recent eight quarters of ambient
monitoring data must show compliance
with the NAAQS.43 For this reason and
based on the recommendations of
applicable guidance discussed further
below, the EPA also found it
appropriate to review available air
quality modeling to complete our
determination of attainment analysis.
b. Review of Air Quality Modeling Data
Generally, for redesignating a
nonattainment area to attainment, the
CAA requires the EPA to determine that
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40 Ibid.
41 These permits are available in the docket for
this proposed rulemaking action.
42 As noted in the EPA’s ‘‘Establishment of Due
Date for Sulfur Dioxide SIP for the Secondary
NAAQS for East Helena, MT,’’ ASARCO ‘‘is the
only major source of SO2 emissions in the East
Helena area.’’ See 58 FR 52237, October 7, 1993.
43 EPA Memo ‘‘Section 107 Designation Policy
Summary,’’ Sheldon Meyers, April 21, 1983.
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the area has attained the applicable
NAAQS.44 For some pollutants, this
determination relies solely on air
quality monitoring data. However, for
SO2, monitoring data alone is generally
insufficient to assess an area’s
attainment status. The EPA’s Calcagni
Memo states that for SO2 and specified
other pollutants, ‘‘dispersion modeling
will generally be necessary to evaluate
comprehensively sources’ impacts.’’
Typically, attainment planning for SO2
involves dispersion modeling used to
demonstrate that the emission limits
adopted by the state suffice to assure
attainment. With such modeling
available, the EPA can generally
determine an area to be attaining the
standard without further modeling,
provided monitoring data also support
that determination. As noted, dispersion
modeling was provided by the State and
ASARCO and approved by the EPA to
show attainment of the primary, but not
secondary, SO2 NAAQS. Because the
EPA has approved Montana’s primary
SO2 NAAQS dispersion modeling and
attainment demonstration but has not
received a secondary SO2 NAAQS
dispersion modeling and attainment
demonstration from the State, we cannot
rely on dispersion modeling as the sole
basis for redesignation. Therefore, we
have combined our analysis of
monitoring and emissions data, listed
above, with the modeling data discussed
here to reach our proposed conclusion
that the East Helena SO2 NAA currently
attains the 1971 SO2 primary and
secondary NAAQS.
In 1992, after promulgation of the
CAA Amendments of 1990, MDEQ,
ASARCO, and the EPA had been
working together through compliance
schedules and work plans to address
issues found with early modeling
studies to predict the ambient impacts
of SO2 emissions from the ASARCO
smelter. These model results indicated
that the NAAQS were violated when the
facility operated at allowable emissions
limits. Modeling results predicted SO2
exceedances in two areas to the south
and southeast of the smelter. The EPA
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44 CAA
section 107(d)(3)(E)(i).
Frm 00024
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10,181.97
10,246.02
9,797.69
9,819.84
9,957.31
Ash Grove
emissions
102.88
96.78
95.7
240.89
229.23
Percentage of
total emissions
from ASARCO
99.0
99.1
99.0
97.6
97.7
concluded from these early modeling
runs that there is an ambient SO2
problem caused by ASARCO’s
emissions.45 Consequently, ASARCO
opted to establish an enhanced ambient
monitoring network in the areas where
initial modeling results indicated
maximum SO2 concentrations.
Based on the results of the early
dispersion modeling, ASARCO
developed an updated modeling
protocol and refined dispersion
modeling studies to demonstrate
compliance with the primary SO2
NAAQS. Control strategies to meet the
NAAQS in this scenario included
production and process limitations that
would be put into place with the, as of
that time, yet to be submitted East
Helena primary SO2 Attainment SIP
approved by the EPA on January 27,
1995 (60 FR 5313).
The General Preamble of the Act
details the EPA’s interpretation of
reasonably available control measures
(RACM), including reasonably available
control technology (RACT),
requirements, and defines RACT for SO2
as the control technology necessary to
achieve the NAAQS.46 As part of the
EPA-approved ISCST and RTDM
dispersion models used to predict
ambient SO2 concentrations around the
ASARCO smelter, multiple modeling
runs were performed to test SO2
concentrations related to emissions from
each stack. The results were then used
to develop the emission limits and
operating stipulations below for several
of the major emission points of the
ASARCO smelter.
From the modeling results, ASARCO
developed a set of parameters for
combined emissions of the two largest
SO2 emission points, the sinter and blast
furnace stacks, in order to provide
operating flexibility while still
providing for attainment of both the
annual and 24-hour primary SO2
45 ‘‘Primary SO NAAQS SIP Revision for East
2
Helena, Montana, Technical Support Document,
October 4, 1994.’’ See Appendix E, October 9, 1992
letter from Douglas Skie to Jeffery Chaffee, with
enclosure, discussing ASARCO’s acceptance of the
de minimis GEP height of 65 m for the blast furnace
stack.
46 57 FR 13547, April 16, 1992; at 13560–13561.
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NAAQS. These emissions compliance
parameters were approved as a set of
three linear equations 47 regulating the
sinter stack and blast furnace stack daily
SO2 emissions. Per these parameters, the
emissions rate from the sinter stack
would limit the allowable emissions
rate at the blast furnace to a level that
provided for protection of the annual
and 24-hour primary SO2 NAAQS. If the
sinter stack daily emissions fell within
one of the three equation ranges, then
the daily emissions of the blast furnace
stack must not exceed a corresponding
given value determined by that
equation.
In addition to the compliance
parameters developed for regulating
combined emissions of the sinter and
blast furnace stacks, maximum daily
SO2 emission limits were also
established for these and other ASARCO
emission points. The maximum
allowable SO2 emissions for the sinter
and blast furnace stacks were set at
60.27 tons per calendar day and 29.64
tons per calendar day, respectively.
Daily emissions of SO2 from the doublecontact sulfuric acid plant stack were
not to exceed 4.30 tons per calendar
day. ASARCO was required to operate
continuous emission monitoring
systems (CEMS) to determine
compliance with the emission
limitations for the sinter plant stack,
blast furnace stack, and acid plant stack.
SO2 emissions from the concentrate
storage and handling building stack
(including the exhaust from the sinter
plant ventilation system baghouse) were
not to exceed 46 pounds per hour or
0.552 tons per calendar day.
The SIP-approved daily maximum
emission limits, and also the
compliance parameters for the
combined emissions of the sinter and
blast furnace stacks, went into effect
September 1, 1994.48 Two additional
emission limitations on minor stack
sources at the ASARCO smelter took
effect on June 30, 1995; SO2 emissions
from the crushing mill baghouse stacks
#1 and #2 were not to exceed 0.19 and
0.37 tons per calendar day, respectively.
As well as the aforementioned
emission limitations, the EPA also
imposed additional provisions 49 on
ASARCO’s operating stipulations to
ensure that SO2 emissions from
miscellaneous volume and fugitive
sources would not increase beyond their
current levels. Moreover, ASARCO’s
47 ‘‘Primary SO NAAQS SIP Revision for East
2
Helena, Montana, Technical Support Document,
October 4, 1994,’’ at 20.
48 60 FR 5313, January 27, 1995.
49 ‘‘Primary SO NAAQS SIP Revision for East
2
Helena, Montana, Technical Support Document,
October 4, 1994,’’ at 21.
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previously approved catalyst screening
maintenance procedures were
prohibited.50 As a result, sulfur dioxide
emissions were no longer allowed to
bypass the double-contact sulfuric acid
plant for catalyst screening while the
blast furnace was operating. The East
Helena primary SO2 Attainment SIP set
the sunset date of the catalyst screening
exemption as November 15, 1995. The
above emissions limitations and
stipulations imposed on ASARCO were
incorporated into the control strategy
that the EPA fully approved for the East
Helena primary SO2 Attainment Plan’s
RACM (including RACT) as attaining
the primary SO2 NAAQS by November
15, 1995.
In addition to these modeled emission
rates for the ASARCO smelter, Ash
Grove was also included in the
modeling for Montana’s East Helena SO2
Attainment SIP. The facility was
modeled at a constant rate of 28.71
grams/second, equivalent to 998 tpy of
SO2. As noted, Ash Grove’s current
allowable SO2 emissions are limited to
386 tpy by MAQP #2005–13 and Title
V operating permit #OP2005–09.51
The EPA’s criteria for evaluation of
the modeling and attainment
demonstration was the most recent
version (at that time) of the EPA’s
Guideline on Air Quality Models at 40
CFR part 51, Appendix W. Through the
modeling provided, Montana
demonstrated that the emission limits
ensured compliance with both the 24hour and annual primary NAAQS. The
EPA determined that the modeling
indicated that both primary SO2
NAAQS would be attained by November
15, 1995, thereby complying with the
attainment date stipulated in the CAA
Amendments of 1990. The ASARCO
modeling and the East Helena primary
SO2 Attainment SIP were approved by
the EPA on January 27, 1995 (60 FR
5313).52
As noted in our January 27, 1995
approval of the East Helena primary SO2
Attainment SIP (and elsewhere in this
notice), the State of Montana was to
provide the EPA with its 3-hour
secondary NAAQS Attainment SIP in a
forthcoming submittal. This was due to
issues with compliance with the
NAAQS, as discussed further below.
50 During catalyst screening maintenance, SO
2
that would normally be transformed into sulfuric
acid and recovered as a product, instead was
bypassing the acid plant pollution controls and was
directly emitted to the atmosphere. See 49 FR
18482, May 1, 1984.
51 These permits are available in the docket for
this proposed rulemaking action.
52 ‘‘Primary SO NAAQS SIP Revision for East
2
Helena, Montana, Technical Support Document,
October 4, 1994.’’ See C. Dispersion Modeling and
Attainment Demonstration, at 16.
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After the promulgation of the CAA
Amendments of 1990, the State of
Montana was to provide modeling as
part of an attainment demonstration
showing compliance with the secondary
3-hour SO2 NAAQS. Due to early
modeled NAAQS violations, ASARCO
elected to perform additional dispersion
modeling using CTDMPLUS/ISCST2
and CTSCREEN models, and control
strategy evaluations to show attainment
with the secondary SO2 NAAQS.
Additionally, an enhanced
meteorological monitoring network (to
include doppler SODAR) was
established to collect data for the
complex CTDMPLUS dispersion model.
Despite these efforts, the required
submittal (including the modeled
attainment demonstration) never
materialized before the ASARCO
smelter ceased operations in 2001.
As discussed earlier in this notice,
ASARCO determined that the allowable
emission rates modeled to achieve the
primary 1971 SO2 NAAQS in the East
Helena primary SO2 Attainment SIP
would need to reduce emissions an
additional 35 percent to achieve
modeled compliance with the secondary
SO2 NAAQS. In our October 7, 1993
‘‘Deadline for SIP Submittal’’ action, we
noted that the substantial emissions
reductions required to model attainment
of the secondary SO2 NAAQS cannot
reasonably be achieved through
production or process changes.
ASARCO estimated that if production
were reduced by 35 percent, annual
revenue would be reduced by more than
$12.4 million. ASARCO contended that
such a reduction in revenue would
make continued operation of the East
Helena smelter economically infeasible.
Though the EPA could not confirm the
projected level of revenue loss, we
noted that the economic impact to the
industry and the community would be
significant. We agreed with the State of
Montana and ASARCO that the only
feasible way to meet the secondary SO2
NAAQS, based on modeling results,
would be to install new air pollution
control equipment or new process
technologies.53 Because Montana failed
to submit the required secondary SO2
NAAQS SIP, highway and offset
sanctions were imposed by operation of
law pursuant to a finding of failure to
submit for a designated nonattainment
area (42 U.S.C. 7509(a)(1)) on December
16, 1993.54
Considering ASARCO’s estimate
(based on dispersion modeling) 55 that
53 58
FR 52237, October 7, 1993.
EPA’s January 19, 1994 letter to Montana
Governor Racicot in the docket for this action.
55 58 FR 52237, October 7, 1993.
54 See
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an additional 35 percent emissions
reduction would be necessary to meet
the secondary SO2 NAAQS, the EPA
concludes that this level of reduction
was far surpassed by the ASARCO
shutdown. ASARCO’s maximum
allowable SO2 emissions were permitted
at 18,773 tpy when the EPA determined
that this level of control was sufficient
to attain the 1971 primary SO2 NAAQS,
and thus approved the East Helena
primary SO2 Attainment SIP.56 As
noted, Ash Grove was also included in
this attainment modeling, with a
modeled constant emission rate of 28.71
grams per second, equivalent to 998 tpy
of SO2. Hence, an additional reduction
of 6,570.5 tpy (35 percent of 18,773) of
SO2 from ASARCO, or estimated
allowable emissions 12,202.5 tpy,
should suffice to meet the secondary
SO2 NAAQS even if Ash Grove were to
emit 998 tpy of SO2 annually, over 2.5
times current Ash Grove allowable
emissions. The current allowable
emissions in the East Helena area are
386.09 tpy of SO2 (See Table 3), just 3
percent of the estimated allowable rates
sufficient to attain the secondary SO2
NAAQS. On this basis, the EPA is
proposing to conclude that the modeling
performed as part of the East Helena
primary SO2 Attainment SIP, considered
alongside current allowable emissions
in the East Helena area and the attaining
monitoring listed in Table 1,
demonstrate that the East Helena area is
attaining the 3-hour secondary SO2
NAAQS.
As will be discussed further in the
EPA’s review of 107(d)(3)(E) criteria 2
and 5, the EPA’s longstanding
interpretation of the nonattainment
planning requirements of CAA section
172 is that once an area is attaining the
NAAQS, those requirements are not
‘‘applicable’’ for purposes of CAA
section 107(d)(3)(E)(ii) and therefore
need not be approved into the SIP
before the EPA can redesignate the area.
The EPA is proposing to reach a similar
conclusion regarding the State’s
outstanding requirement to submit to
56 ASARCO’s enforceable SO emission limits
2
have been comprised of permit limits and SIPapproved limits. ASARCO’s MAQP SO2 emission
limit was 18,733 tpy before the permit was revoked
in 2010. The East Helena primary SO2 Attainment
SIP further strengthened ASARCO’s SO2 emissions
limits as discussed in detail above. All of
ASARCO’s emission limits, be they SIP-approved or
permitted, are enforceable. Had ASARCO operated
at its daily maximum emission limits as a constant
yearlong rate, doing so would have violated the
MAQP emission limit and the enforceable
compliance parameters. The daily maximum
emission limit was never intended as a constant
maximum allowable emission rate. Rather, the 1995
primary SO2 Attainment SIP emission limits and
operating stipulations were developed to provide
ASARCO with maximum operating flexibility.
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the EPA a 3-hour secondary NAAQS
Attainment SIP. Specifically, because
the EPA is proposing to conclude that
the East Helena NAA is currently
attaining the 3-hour secondary SO2
NAAQS, the State is not required to also
submit a SIP providing for such
attainment.
c. EPA’s Proposed Determination of
Attainment
As discussed above, the normal
prerequisite for redesignation of a
nonattainment area is submittal of
quality-assured ambient data with no
violations of the NAAQS for the most
recent eight consecutive quarters.57
Generally, a modeling demonstration is
also necessary for SO2 nonattainment
areas seeking to redesignate.58 The Seitz
Memo recognizes that states should be
provided an opportunity to request
redesignation for areas where there is no
contemporary monitoring data available
if there is no reasonable basis for
assuming that SO2 violations persist
after closure of the sources that were the
cause of these violations.59 We find that
East Helena is such an area, and that
available monitoring and modeling data
discussed above also indicate current
attainment of both the primary and
secondary 1971 SO2 NAAQS. We
therefore propose to determine that the
East Helena NAA is attaining the
primary and secondary 1971 SO2
NAAQS.
2. Criteria (2)—Montana Has a Fully
Approved SIP Under Section 110(k);
and Criteria (5)—Montana Has Met All
Applicable Requirements Under Section
110 and Part D of Title I of the CAA
For redesignating a nonattainment
area to attainment under a NAAQS, the
CAA requires the EPA to determine that
the state has met all applicable
requirements for that NAAQS under
section 110 and part D of title I of the
CAA (CAA section 107(d)(3)(E)(v)) and
that the state has a fully approved SIP
under section 110(k) for that NAAQS for
the area (CAA section 107(d)(3)(E)(ii)).
The EPA proposes to find that Montana
has met all applicable SIP requirements
for the East Helena SO2 NAA under
section 110 of the CAA (general SIP
requirements) for purposes of
redesignation. Additionally, the EPA
proposes to find that the Montana SIP
satisfies the criterion that it meets
applicable SIP requirements for
purposes of redesignation under part D
of title I of the CAA in accordance with
section 107(d)(3)(E)(v). Further, the EPA
PO 00000
57 Helms
Memo at 1.
Memo at 3.
59 Seitz Memo at 1.
58 Calcagni
Frm 00026
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Sfmt 4702
34097
proposes to determine that the SIP is
fully approved with respect to all
requirements applicable for the 1971
SO2 NAAQS for purposes of
redesignation in accordance with
section 107(d)(3)(E)(ii). In making these
determinations, the EPA ascertained
which requirements are applicable to
the East Helena SO2 NAA and, if
applicable, that they are fully approved
under section 110(k).
a. The East Helena SO2 NAA Has Met
All Applicable Requirements Under
Section 110 and Part D of the CAA
General SIP Requirements
General SIP elements and
requirements are delineated in section
110(a)(2) of title I, part A of the CAA.
These requirements include, but are not
limited to, the following: Submittal of a
SIP that has been adopted by the state
after reasonable public notice and
hearing; provisions for establishment
and operation of appropriate procedures
needed to monitor ambient air quality;
implementation of a source permit
program; provisions for the
implementation of part C requirements
(Prevention of Significant Deterioration
(PSD)) and provisions for the
implementation of part D requirements
(New Source Review (NSR) permit
programs); provisions for air pollution
modeling; and provisions for public and
local agency participation in planning
and emission control rule development.
Section 110(a)(2)(D) requires that SIPs
contain certain measures to prevent
sources in a state from significantly
contributing to air quality problems in
another state. To implement this
provision, the EPA has required certain
states to establish programs to address
the interstate transport of air pollutants.
The section 110(a)(2)(D) requirements
for a state are not linked with a
particular nonattainment area’s
designation and classification in that
state. The EPA believes that the
requirements linked with a particular
nonattainment area’s designation and
classifications are the relevant measures
to evaluate in reviewing a redesignation
request. The transport SIP submittal
requirements, where applicable,
continue to apply to a state regardless of
the designation of any one particular
area in the state. Thus, the EPA does not
believe that the CAA’s interstate
transport requirements should be
construed to be applicable requirements
for purposes of redesignation.
In addition, the EPA believes other
section 110 elements that are neither
connected with nonattainment plan
submissions nor linked with an area’s
attainment status are applicable
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requirements for purposes of
redesignation. The area will still be
subject to these requirements after the
area is redesignated. The section 110
and part D requirements which are
linked with a particular area’s
designation and classification are the
relevant measures to evaluate in
reviewing a redesignation request. This
approach is consistent with the EPA’s
existing policy on applicability (i.e., for
redesignations) of conformity and
oxygenated fuels requirements, as well
as with section 184 ozone transport
requirements. See Reading,
Pennsylvania, proposed and final
rulemakings (61 FR 53174–53176,
October 10, 1996), (62 FR 24826, May 7,
2008); Cleveland-Akron-Loraine, Ohio,
final rulemaking (61 FR 20458, May
7,1996); and Tampa, Florida, final
rulemaking at (60 FR 62748, December
7, 1995). See also the discussion on this
issue in the Cincinnati, Ohio,
redesignation (65 FR 37890, June 19,
2000), and in the Pittsburgh,
Pennsylvania, redesignation (66 FR
50399, October 19, 2001).
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Title I, Part D, Applicable SIP
Requirements
Section 172(c) of the CAA sets forth
the basic requirements of attainment
plans for nonattainment areas that are
required to submit them pursuant to
section 172(b). Subpart 5 of part D,
which includes section 191 and 192 of
the CAA, establishes requirements for
SO2, nitrogen dioxide and lead
nonattainment areas. A thorough
discussion of the requirements
contained in sections 172(c) can be
found in the General Preamble for
Implementation of Title I (57 FR 13498).
Subpart 5 Section 172 Requirements
Section 172(c)(1) requires the plans
for all nonattainment areas to provide
for the implementation of all RACM as
expeditiously as practicable and to
provide for attainment of the NAAQS.
The EPA interprets this requirement to
impose a duty on all nonattainment
areas to consider all available control
measures and to adopt and implement
such measures as are reasonably
available for implementation in each
area as components of the area’s
attainment demonstration. Under
section 172, states with nonattainment
areas must submit plans providing for
timely attainment and meeting a variety
of other requirements.
The EPA’s longstanding interpretation
of the nonattainment planning
requirements of section 172 is that once
an area is attaining the NAAQS, those
requirements are not ‘‘applicable’’ for
purposes of CAA section 107(d)(3)(E)(ii)
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and therefore need not be approved into
the SIP before the EPA can redesignate
the area. In the 1992 General Preamble
for Implementation of Title I, the EPA
set forth its interpretation of applicable
requirements for purposes of evaluating
redesignation requests when an area is
attaining a standard. See 57 FR 13498,
13564 (April 16, 1992). The EPA noted
that the requirements for Reasonable
Further Progress (RFP) and other
measures designed to provide for
attainment do not apply in evaluating
redesignation requests because those
nonattainment planning requirements
‘‘have no meaning’’ for an area that has
already attained the standard. Id. This
interpretation was also set forth in the
Calcagni Memo. The EPA’s
understanding of section 172 also forms
the basis of its Clean Data Policy, which
was articulated with regard to SO2 in
the 2010 SO2 NAA Guidance and
suspends a state’s obligation to submit
most of the attainment planning
requirements that would otherwise
apply, including an attainment
demonstration and planning SIPs to
provide for RFP, RACM, and
contingency measures under section
172(c)(9). Courts have upheld the EPA’s
interpretation of section 172(c)(1) for
‘‘reasonably available’’ control measures
and control technology as meaning only
those controls that advance attainment,
which precludes the need to require
additional measures where an area is
already attaining. NRDC v. EPA, 571
F.3d 1245, 1252 (D.C. Cir. 2009); Sierra
Club v. EPA, 294 F.3d 155, 162 (D.C.
Cir. 2002); Sierra Club v. EPA, 314 F.3d
735, 744 (5th Cir. 2002); Sierra Club v.
EPA, 375 F.3d 537 (7th Cir. 2004). But
see Sierra Club v. EPA, 793 F.3d 656
(6th Cir. 2015).
Therefore, because attainment has
been reached in the East Helena SO2
NAA, no additional measures are
needed to provide for attainment, and
section 172(c)(1) requirements for an
attainment demonstration and RACM
are not part of the ‘‘applicable
implementation plan’’ required to have
been approved prior to redesignation
per CAA section 107(d)(3)(E)(ii). The
other section 172 requirements that are
designed to help an area achieve
attainment—the section 172(c)(2)
requirement that nonattainment plans
contain provisions promoting
reasonable further progress, the
requirement to submit the section
172(c)(9) contingency measures, and the
section 172(c)(6) requirement for the SIP
to contain control measures necessary to
provide for attainment of the NAAQS—
are also not required to be approved as
part of the ‘‘applicable implementation
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Fmt 4702
Sfmt 4702
plan’’ for purposes of satisfying CAA
section 107(d)(3)(E)(ii).60
Section 172(c)(3) requires submission
and approval of a comprehensive,
accurate, and current inventory of actual
emissions. The East Helena primary SO2
Attainment SIP contained an inventory
which the EPA approved as meeting the
requirements of CAA section
172(c)(3).61 This inventory reported
annual SO2 emissions for the ASARCO
facility at approximately 18,000 tpy,
with approximately 280 tpy attributed
to the Ash Grove kiln stacks. The more
contemporary emissions inventory
submitted as part of the maintenance
plan for the East Helena SO2 NAA will
be discussed further in the maintenance
plan portion of this proposed action.
Section 172(c)(4) requires the
identification and quantification of
allowable emissions for major new and
modified stationary sources to be
allowed in an area, and section 172(c)(5)
requires source permits for the
construction and operation of new and
modified major stationary sources
anywhere in the nonattainment area.
The EPA has a longstanding
interpretation that because
Nonattainment NSR (NNSR) is replaced
by PSD upon redesignation,
nonattainment areas seeking
redesignation to attainment need not
have a fully approved part D NNSR
program in order to be redesignated. A
more detailed rationale for this view is
described in a memorandum from Mary
Nichols, Assistant Administrator for Air
and Radiation, dated October 14, 1994,
entitled ‘‘Part D New Source Review
Requirements for Areas Requesting
Redesignation to Attainment.’’ Montana
currently has a fully-approved PSD and
part D NNSR program in place at
Administrative Rules of Montana (ARM)
Subchapter 8. Montana’s PSD program
will become effective in the East Helena
SO2 NAA upon redesignation to
attainment.
Section 172(c)(7) requires the SIP to
meet the applicable provisions of
section 110(a)(2). As noted above, the
EPA believes the Montana SIP meets the
requirements of section 110(a)(2)
applicable for purposes of
redesignation.
Section 176 Conformity Requirements
Section 176(c) of the CAA requires
states to establish criteria and
procedures to ensure that federally
supported or funded projects conform to
60 The EPA notes that MDEQ has met the
requirements of CAA section 172(c)(1), (2), (6), and
(9) for the 1971 primary SO2 NAAQS, but not for
the 1971 secondary SO2 NAAQS. 60 FR 5315,
January 27, 1995.
61 60 FR 5315, January 27, 1995.
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the air quality planning goals in the
applicable SIP. The requirement to
determine conformity applies to
transportation plans, programs, and
projects that are developed, funded, or
approved under title 23 of the United
States Code (U.S.C.) and the Federal
Transit Act (transportation conformity)
as well as to all other federally
supported or funded projects (general
conformity). State transportation
conformity SIP revisions must be
consistent with federal conformity
regulations relating to consultation,
enforcement, and enforceability that the
EPA promulgated pursuant to its
authority under the CAA.
Montana has an approved general
conformity SIP for the East Helena area.
See 67 FR 62392 (October 7, 2002).
Moreover, the EPA interprets the
conformity SIP requirements as not
applying for purposes of evaluating a
redesignation request under section
107(d) because, like other requirements
listed above, state conformity rules are
still required after redesignation and
federal conformity rules apply where
state rules have not been approved. See
Wall v. EPA, 265 F.3d 426 (6th Cir.
2001) (upholding this interpretation);
see also 60 FR 62748 (December 7,
1995) (redesignation of Tampa, Florida).
For these reasons, the EPA proposes
to find that Montana has satisfied all
applicable requirements for purposes of
redesignation of the East Helena SO2
NAA under section 110 and part D of
title I of the CAA.
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b. The East Helena SO2 NAA Has a
Fully Approved Applicable SIP Under
Section 110(k) of the CAA
The EPA has fully approved the
applicable Montana SIP for the East
Helena SO2 NAA under section 110(k)
of the CAA for all requirements
applicable for purposes of
redesignation. As indicated above, the
EPA believes that the section 110
elements that are neither connected
with nonattainment plan submissions
nor linked to an area’s nonattainment
status are not applicable requirements
for purposes of redesignation. The EPA
has approved all part D requirements
applicable under the 1971 SO2 NAAQS,
as identified above, for purposes of this
redesignation.
3. Criteria (3)—The Air Quality
Improvement in the East Helena SO2
NAA Is Due to Permanent and
Enforceable Reductions in Emissions
For redesignating a nonattainment
area to attainment, the CAA requires the
EPA to determine that the air quality
improvement in the area is due to
permanent and enforceable reductions
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in emissions resulting from
implementation of the SIP, applicable
federal air pollution control regulations,
and other permanent and enforceable
reductions (CAA section
107(d)(3)(E)(iii)). The EPA proposes to
find that Montana has demonstrated
that the observed air quality
improvement in the East Helena SO2
NAA is due to permanent and
enforceable reductions in emissions.
Specifically, the EPA considers the
shutdown of the ASARCO smelter,
identified as the cause of SO2 NAAQS
violations,62 to be both permanent and
enforceable due to the source’s
dismantling and permit revocation. The
EPA notes that the ASARCO smelter
was still operating during the 1987–
2001 period during which the 1971
primary and secondary SO2 NAAQS
was attained across the East Helena
enhanced monitoring network. Due to
the ASARCO shutdown, the EPA
reasonably concludes that the 1971 SO2
NAAQS would have and will continue
to be attained by a far greater margin
following the facility’s shutdown. As
stated in the Calcagni Memo, ‘‘Emission
reductions from source shutdowns can
be considered permanent and
enforceable to the extent that those
shutdowns have been reflected in the
SIP and all applicable permits have
been modified accordingly.’’ 63 As
noted, MDEQ revoked ASARCO’s
MAQP #2557–12 on January 5, 2010,
and the source’s Title V permit
#OP2557–04 expired on April 4, 2007.64
Further, the ASARCO facility has been
demolished, making its future operation
impossible and thus exhibiting the
permanence of the emissions reductions
in the nonattainment area. Any new
sources seeking to operate within the
East Helena NAA would first be
required to demonstrate that their new
SO2 emissions would not interfere with
attainment and maintenance of the 1971
(and 2010) SO2 NAAQS.65 Therefore,
the EPA is proposing to find that the air
quality improvement in the East Helena
FR 52237, October 7, 1993.
Memo at 10.
64 Permit revocation letter is included in the
docket for this action.
65 All 1971 SO NAAQS will continue to apply
2
in the East Helena SO2 NAA (in addition to the
2010 SO2 NAAQS) after redesignation to attainment
unless further action is taken by the State
requesting 1971 primary SO2 NAAQS revocation.
As stated in the 2010 SO2 NAAQS promulgation,
‘‘EPA is also providing that the annual and 24-hour
NAAQS remain in place for any current
nonattainment area . . . until the affected area
submits, and EPA approves, a SIP with an
attainment, implementation, maintenance and
enforcement SIP which fully addresses the
attainment and maintenance requirements of the
new SO2 NAAQS.’’ See 75 FR 35581, June 22, 2010.
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63 Calcagni
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Fmt 4702
Sfmt 4702
34099
SO2 NAA is due to permanent and
enforceable reductions in emissions.
4. Criteria (4)—The East Helena SO2
Nonattainment Area Has a Fully
Approved Maintenance Plan Pursuant
to Section 175A of the CAA
To redesignate a nonattainment area
to attainment, the CAA requires the EPA
to determine that the area has a fully
approved maintenance plan pursuant to
section 175A of the CAA (CAA section
107(d)(3)(E)(iv)). In conjunction with its
request to redesignate the East Helena
SO2 NAA to attainment for the 1971
primary and secondary SO2 NAAQS,
MDEQ submitted a SIP revision to
provide for the maintenance of these
NAAQS for at least 10 years after the
effective date of redesignation to
attainment. As will be discussed in
further detail in Section III.B., ‘‘CAA
Section 175A Requirements,’’ the EPA is
proposing to find that this maintenance
plan for the area meets the requirements
for approval under section 175A of the
CAA.
B. EPA Review of CAA Section 175A
Requirements
1. Maintenance Plan Requirements
CAA section 175A sets forth the
elements of a maintenance plan for
areas seeking redesignation from
nonattainment to attainment. Under
section 175A, the plan must
demonstrate continued attainment of
the applicable NAAQS for at least 10
years after the Administrator approves a
redesignation to attainment. Eight years
after the redesignation, the state must
submit a revised maintenance plan
demonstrating that attainment will
continue to be maintained for the 10
years following the initial 10-year
period. To address the possibility of
future NAAQS violations, the
maintenance plan must contain
contingency measures as the EPA deems
necessary to assure prompt correction of
any future SO2 NAAQS violations. The
Calcagni Memo provides further
guidance on the content of a
maintenance plan, explaining that a
maintenance plan should address five
requirements: The attainment emissions
inventory; maintenance demonstration;
monitoring; verification of continued
attainment; and a contingency plan.66
As noted, the Seitz Memo provides
maintenance plan guidance specific to
nonattainment areas whose historic
violations were caused by a major point
source that is no longer in operation.
The Seitz memo provides a path for
such areas to justify exemption from
66 Calcagni
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maintenance plan requirements of
continued monitoring and describes
how attainment and continued
maintenance could be demonstrated in
such areas. Based on our review of the
East Helena SO2 Redesignation Request
and relevant past rulemaking actions,67
the EPA finds that the East Helena SO2
NAA is an appropriate area for
application of the guidance laid out in
the Seitz Memo. The EPA has therefore
elected to assess the East Helena SO2
Maintenance Plan based on the
recommendations provided in the Seitz
Memo, as discussed further below.
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2. Review of the East Helena SO2
Maintenance Plan in the Context of the
Seitz Memo
In order to allow areas to qualify for
redesignation to attainment, the Seitz
Memo policy requires that the
maintenance plan address otherwise
applicable provisions, and include: (1)
Emissions inventories representing
actual emissions when violations
occurred, current emissions and
emissions projected to the 10th year
after redesignation; (2) Dispersion
modeling showing that no NAAQS
violations will occur over the next 10
years and that the shut down source was
the dominant cause of the high
concentrations in the past; (3) Evidence
that if the shut down source resumes
operation, it would be considered a new
source and be required to obtain a
permit under the PSD provisions of the
CAA; and (4) A commitment to resume
monitoring before any major SO2 source
commences operation. The EPA will
address these requirements
individually, below.
a. Emissions Inventory
The Seitz Memo recommends a state’s
maintenance plan include emissions
inventories representing actual
emissions when violations occurred,
current emissions and emissions
projected to the 10th year after
redesignation. Montana’s East Helena
SO2 Maintenance Plan included both
past actual and future projected
attainment emissions inventories 68 for
the East Helena SO2 NAA. The two
sources included in these inventories
are the American Chemet Corporation
(Chemet) and Ash Grove, despite the
latter facility’s location outside of the
East Helena SO2 NAA. MDEQ’s future
projected attainment inventory used
Chemet’s permitted allowable SO2 limit
of 0.09 tpy (per MAQP #1993–19) and
Ash Grove’s permitted allowable limit
and the EPA in the 1990’s as part of the
East Helena primary SO2 Attainment
Plan, to make this two-part showing. An
in depth discussion on this modeling is
presented in section III.A.1., above.
The EPA finds that the dispersion
modeling for the East Helena primary
SO2 Attainment Plan is adequate to
make the two-part showing
recommended by the Seitz Memo. First,
the SO2 limits relied upon to model
attainment of the 1971 primary SO2
NAAQS, and the additional 35 percent
SO2 reduction necessary to model
attainment of the secondary SO2
NAAQS, both projected annual
ASARCO emissions above 10,000 tpy
and Ash Grove emissions at 998 tpy.
Because current allowable emissions in
the East Helena area are just 386.09 tpy,
we find this sufficient evidence that no
violations presently occur or can be
projected to occur during the next 10
years anywhere within the
nonattainment area. Second, the
information provided throughout
today’s proposed rulemaking, most
TABLE 3—EAST HELENA SO2 MAINTE- notably Table 2, clearly demonstrate
that ASARCO was the dominant source
NANCE AREA PROJECTED ATTAINcontributing to high SO2 concentrations
MENT INVENTORY
in the East Helena area. For these
reasons, the EPA finds that the ambient
Ash
Year
Chemet
SO2 modeling requirement for
grove
redesignations and maintenance plans is
2017 ..........................
* 102
* 0.02 met.
of 386 tpy, to calculate a total projection
of 386.09 tpy of SO2 emissions each year
from 2017 to 2026. This attainment
inventory is provided in Table 3, below,
with actual emissions replacing the
State’s projected allowable limits for
2017. We conclude that the inventories
provided by the State are complete,
accurate, and consistent with applicable
CAA provisions and the Seitz Memo.
The State also included historic
emissions data for ASARCO and Ash
Grove from 1990 to 2001.69 Neither the
State nor the EPA has emissions data
available for these facilities prior to
1990, due to ASARCO’s 2001 shut down
and the passage of time. Therefore, there
is not an inventory available that can
provide actual emissions when
violations occurred, as recommended by
the Seitz Memo. We do not consider this
to be an issue, as the historic emissions
inventory provided by the State and our
review of previous rulemaking actions
for East Helena clearly show that the
shut down source, ASARCO, was the
cause of historic SO2 violations.
2018
2019
2020
2021
2022
2023
2024
2025
2026
..........................
..........................
..........................
..........................
..........................
..........................
..........................
..........................
..........................
386
386
386
386
386
386
386
386
386
* Indicates actual emissions.
b. Dispersion Modeling
Past EPA policy memoranda on SO2
redesignations have recommended
dispersion modeling. Per the Seitz
Memo, the purpose of such modeling
analysis is to show that; (1) No SO2
NAAQS violations presently occur or
can be projected to occur during the
next 10 years anywhere within the
nonattainment area, and (2) point
sources, which have since shut down,
were the dominant sources contributing
to high SO2 concentrations in the
airshed.70 The State elected not to
submit an updated dispersion modeling
analysis to the EPA as part of the East
Helena SO2 Maintenance Plan. For this
reason, the EPA is relying on the
dispersion modeling conducted in
coordination with ASARCO, the MDEQ,
67 60
FR 5315, January 27, 1995.
Helena SO2 Redesignation Request and
Maintenance Plan, October 26, 2018, at 13–14.
68 East
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0.09
0.09
0.09
0.09
0.09
0.09
0.09
0.09
0.09
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70 Seitz Memo at 3.
Fmt 4702
For the East Helena SO2 NAA, the
NNSR permit program responsibilities
are held by MDEQ. MDEQ has
longstanding, SIP-approved PSD and
minor NSR permitting programs.71 In
conjunction with all SIP-approved
requirements of MDEQ’s SIP-approved
PSD permitting program, the Source
Impact Analysis requires ‘‘[t]he owner
or operator of the proposed source or
modification shall demonstrate that
allowable emission increases from the
proposed source or modification, in
conjunction with all other applicable
emission increases or reductions
(including secondary emissions), would
not cause or contribute to air pollution
in violation of any national ambient air
quality standard in any air quality
control region or any applicable
maximum allowable increase over the
baseline concentration in any area.’’ 72
Furthermore, in conjunction with all
SIP-approved requirements of MDEQ’s
SIP-approved minor source permitting
program, Conditions For Issuance or
71 ARM Title 17, Chapter 8, Subchapters 7, 8, 9
and 10.
72 ARM 17.8.820.
69 Id.
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c. Permitting of New or Modified
Sources
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Denial of Permit,73 requires that, ‘‘[a]
Montana air quality permit may not be
issued for a new or modified facility or
emitting unit unless the applicant
demonstrates that the facility or
emitting unit can be expected to operate
in compliance with the Clean Air Act of
Montana and rules adopted under that
Act, the Federal Clean Air Act and rules
promulgated under that Act (as
incorporated by reference in ARM
17.8.767), and any applicable
requirement contained in the Montana
State Implementation Plan (as
incorporated by reference in ARM
17.8.767), and that it will not cause or
contribute to a violation of any Montana
or national ambient air quality
standard.’’ MDEQ is committed to
continuing to implement its SIPapproved major and minor source
permitting programs in the East Helena
maintenance area to ensure that any
new or modified (or reopened) 74
industrial source of SO2 emissions will
not cause or contribute to a subsequent
SO2 NAAQS violation in the area.
Further, any appropriate changes to the
ARM will be submitted to the EPA for
approval as a SIP revision.
These programs will apply to any
major source wishing to locate in the
East Helena NAA once the it is
redesignated to attainment. The MDEQ
commitment to treat any major source in
or near East Helena as ‘‘new’’ under the
PSD program satisfies the
preconstruction permit provision of the
Seitz Memo as one of the prerequisites
to redesignation.
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d. Monitoring
In the East Helena SO2 Maintenance
Plan, the State requires installation of
appropriate SO2 monitoring for a
minimum of three years if a major
source of SO2 attempts to locate within
the East Helena SO2 NAA and the
source’s modeling indicates that the SO2
impacts are greater than 75 percent of
the NAAQS including background to
ensure that the NAAQS are adequately
protected. Moreover, Montana’s PSD
program also requires that permit
applicants conduct preconstruction
monitoring to identify baseline
concentrations. Together, these
commitments address the monitoring
provision of the Seitz Memo.
73 ARM
17.8.749.
EPA does not foresee any new source
operating within the boundaries of the East Helena
NAA due to its Superfund designation, completed
remediation activities to date, and institutional
controls imposed on the East Helena Site (including
future deed restrictions).
74 The
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34101
3. Review of Remaining Maintenance
Plan Provisions
As discussed above, CAA section
175A sets forth the statutory
requirements for maintenance plans,
and the Calcagni and Shaver memos
cited above contain specific EPA
guidance. The only maintenance plan
element not covered by the Seitz Memo
is the contingency provision. CAA
Section 175A provides that maintenance
plans ‘‘contain such contingency
provisions as the Administrator deems
necessary to assure that the State will
promptly correct any violation of the
standard which occurs after the
redesignation of the area as an
attainment area.’’
The East Helena SO2 Maintenance
Plan includes the State’s commitment to
continue to implement and enforce
measures necessary to maintain the SO2
NAAQS. MDEQ’s current operating
permit program places limits on SO2
emissions from existing sources. Should
an existing facility (such as Chemet)
want to increase SO2 emissions by 40
tpy or more, the facility would be
subject to the PSD program. Should a
new facility be constructed in the East
Helena maintenance area, the facility
would also be subject to PSD.
The Calcagni Memo emphasizes the
importance of specific contingency
measures, schedules for adoption, and
action levels to trigger implementation
of the contingency plan. The Calcagni
Memo also states that a contingency
plan must require that the state
implement all measures contained in
the part D nonattainment plan. Since all
of the measures contained in the East
Helena primary SO2 Attainment Plan
(which satisfied part D for the 1971
primary NAAQS) specifically addressed
the ASARCO facility, the EPA does not
find it reasonable to contain such
measures in the East Helena SO2
Maintenance Plan now that the facility
does not exist. Additionally, the EPA is
proposing to conclude that the projected
allowable SO2 emissions limits for the
two remaining sources in the East
Helena area (Ash Grove and Chemet) are
protective of the NAAQS. For these
reasons, the State’s contingency plan
focuses on ensuring that new sources or
modifications of existing permitted
sources are protective of the SO2
NAAQS. We agree with the State that
any new source planning to locate
within the maintenance area or existing
source proposing a significant 75
increase in SO2 emissions would be
subject to Montana’s SIP-approved PSD
and minor NSR permitting programs.76
Thus, we find that MDEQ’s permitting
program is sufficient to track future air
quality trends and to assure that the East
Helena maintenance area will not
violate the NAAQS. If Montana
identifies the potential for a NAAQS
violation through the permitting
process, the State would be required to
ascertain what measures must be taken
to avoid the violation. We are therefore
proposing to conclude that the East
Helena SO2 Maintenance Plan
satisfactorily addresses the
‘‘contingency plan’’ requirement of CAA
section 175A.
The EPA generally requires that a
state continue ambient monitoring to
meet the maintenance plan requirement
for verification of continued attainment.
However, the Seitz Memo provides the
opportunity for redesignated areas to be
exempt from continued ambient
monitoring of maintenance areas when
the dominant source of SO2 in the area
has shut down.77 As discussed earlier in
this proposed notice, we find that the
East Helena SO2 NAA’s unique
circumstances are appropriate for
application of the Seitz Memo guidance.
Therefore, we determine that in this
instance, an exemption to continued
monitoring would be appropriate. If
today’s action is finalized as proposed,
MDEQ will not be monitoring to verify
SO2 NAAQS compliance in the East
Helena area unless required by
Montana’s permitting program following
the introduction of a new or modified
source to the area. The state has
provided evidence that SO2 monitoring
conducted between 1987 and
ASARCO’s shutdown in 2001 met the
applicable NAAQS with no violations
observed during that time (See Table 1).
Additionally, due to the total removal of
the ASARCO facility, the source of the
SO2 NAAQS violations have been
eliminated. With ASARCO removed
from the total SO2 emissions in the East
Helena area, available evidence
indicates attainment will be met by a
wide margin. We agree with MDEQ that
maintenance of the SO2 NAAQS in the
East Helena SO2 maintenance area can
be tracked through updates to the
emissions inventory and operating
permit applications received for SO2
emitting sources for verification of
continued attainment.
75 Per 40 CFR 52.21(b)(23)(i), a net emissions
increase or potential to emit of 40 tpy or greater is
considered ‘‘significant’’ for SO2.
76 ARM Title 17, Chapter 8, Subchapters 7, 8, 9
and 10.
77 Seitz Memo at 1.
PO 00000
Frm 00030
Fmt 4702
Sfmt 4702
C. EPA’s Proposed Conclusion
Based on the EPA’s analysis of the
East Helena SO2 Redesignation Request
and Maintenance Plan, provided in
E:\FR\FM\17JYP1.SGM
17JYP1
34102
Federal Register / Vol. 84, No. 137 / Wednesday, July 17, 2019 / Proposed Rules
sections III.A. and III.B., the EPA is
proposing to determine that the State
has met all applicable requirements of
CAA sections 107(d)(3)(E) and 175A.
IV. Proposed Action
After review and analysis of
Montana’s submittal, the EPA is
proposing to redesignate the East
Helena, Montana SO2 NAA to
attainment for the 1971 primary 24-hour
and annual, and secondary 3-hour SO2
NAAQS. The EPA is also proposing to
approve the State’s plan for continued
maintenance and attainment of the 1971
primary 24-hour and annual, and
secondary 3-hour SO2 NAAQS in East
Helena, Montana for ten years following
redesignation to attainment.
jbell on DSK3GLQ082PROD with PROPOSALS
V. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely proposes to approve state law as
meeting federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this proposed action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because SIP approvals are
exempted under Executive Order 12866;
• 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);
VerDate Sep<11>2014
16:35 Jul 16, 2019
Jkt 247001
• 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 the 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, the SIP is not proposed to
apply on any Indian reservation land or
in any other area where the EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Particulate matter,
Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 11, 2019.
Gregory Sopkin,
Regional Administrator, EPA Region 8.
[FR Doc. 2019–15111 Filed 7–16–19; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2019–0320; FRL–9996–63–
Region 8]
Approval and Promulgation of Air
Quality Implementation Plans; State of
Montana; East Helena Lead
Nonattainment Area Maintenance Plan
and Redesignation Request
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
the Maintenance Plan, submitted by the
State of Montana to the EPA on October
28, 2018, for the East Helena Lead (Pb)
nonattainment area (East Helena NAA)
and concurrently redesignating the East
Helena NAA to attainment of the 1978
SUMMARY:
PO 00000
Frm 00031
Fmt 4702
Sfmt 4702
Pb National Ambient Air Quality
Standard (NAAQS). The EPA is taking
this action pursuant to the Clean Air Act
(CAA).
Written comments must be
received on or before August 16, 2019.
DATES:
Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–EPA–R08–OAR–2019–0320, to the
Federal Rulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from
www.regulations.gov. The EPA may
publish any comment received to its
public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. The EPA will
generally not consider comments or
comment contents located outside of the
primary submission (i.e., on the web,
cloud, or other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
Docket: All documents in the docket
are listed in the 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
www.regulations.gov or in hard copy at
the Air and Radiation Division,
Environmental Protection Agency
(EPA), Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202–1129. The EPA
requests that if at all possible, you
contact the individual listed in the FOR
FURTHER INFORMATION CONTACT section to
view the hard copy of the docket. You
may view the hard copy of the docket
Monday through Friday, 8:00 a.m. to
4:00 p.m., excluding federal holidays.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
James Hou, Air and Radiation Division,
EPA, Region 8, Mailcode 8ARD–IO,
1595 Wynkoop Street, Denver,
Colorado, 80202–1129, (303) 312–6210,
hou.james@epa.gov.
E:\FR\FM\17JYP1.SGM
17JYP1
]]>Agencies
[Federal Register Volume 84, Number 137 (Wednesday, July 17, 2019)]
[Proposed Rules]
[Pages 34090-34102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15111]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2019-0340; FRL-9996-64-Region 8]
Designation of Areas for Air Quality Planning Purposes; Montana;
Redesignation Request and Associated Maintenance Plan for East Helena
SO2 Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: On October 26, 2018, the Montana Department of Environmental
Quality (MDEQ) submitted a request to the EPA for redesignation of the
East Helena, Montana 1971 sulfur dioxide (SO2) National
Ambient Air Quality Standards (NAAQS) nonattainment area (NAA) to
attainment, and to approve a State Implementation Plan (SIP) revision
for a maintenance plan of the East Helena area. After review and
analysis of Montana's submittal, the EPA is proposing to redesignate
the East Helena, Montana SO2 nonattainment area to
attainment for the 1971 primary 24-hour and annual, and secondary 3-
hour SO2 NAAQS, and to approve
[[Page 34091]]
Montana's SIP revision for continued maintenance and attainment of the
1971 primary 24-hour and annual, and secondary 3-hour SO2
NAAQS in East Helena, Montana.
DATES: Written comments must be received on or before August 16, 2019.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2019-0340, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
www.regulations.gov. The EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. The EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
Docket: All documents in the docket are listed in the
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 www.regulations.gov or in hard copy at the Air and Radiation
Division, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop
Street, Denver, Colorado 80202-1129. The EPA requests that if at all
possible, you contact the individual listed in the FOR FURTHER
INFORMATION CONTACT section to view the hard copy of the docket. You
may view the hard copy of the docket Monday through Friday, 8:00 a.m.
to 4:00 p.m., excluding federal holidays.
FOR FURTHER INFORMATION CONTACT: Adam Clark, (303) 312-7104,
[email protected]epa.gov, or Clayton Bean, (303) 312-6143,
[email protected], Air and Radiation Division, U.S. EPA, Region 8,
Mail-code 8ARD-QP, 1595 Wynkoop Street, Denver, Colorado 80202-1129.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
I. Background for the EPA's Proposed Actions
A. The 1971 SO2 NAAQS
In 1971, the EPA promulgated new primary and secondary NAAQS for
SO2.\1\ The primary standard addressed 24-hour and annual
average ambient SO2 concentrations. The secondary standard
addressed 3-hour and annual average ambient SO2
concentrations. In 1973, the EPA revoked the secondary annual average
standard.\2\ Thus, the 1971 SO2 NAAQS is comprised of a
primary 24-hour standard of 0.14 parts per million (ppm) not to be
exceeded more than once per year, a primary annual average standard of
0.03 ppm, and a secondary 3-hour standard of 0.5 ppm not to be exceeded
more than once per year.\3\
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\1\ 36 FR 8186, April 30, 1971.
\2\ 38 FR 25678, September 14, 1973.
\3\ Table of historical SO2 NAAQS. See https://www3.epa.gov/ttn/naaqs/standards/so2/s_so2_history.html.
---------------------------------------------------------------------------
On June 2, 2010, the EPA revised the primary SO2 NAAQS,
thus establishing a new 1-hour SO2 standard of 75 parts per
billion (ppb). Although the 1971 primary SO2 NAAQS have been
revised to the 2010 1-hour SO2 NAAQS, today's proposed
action only addresses the 1971 SO2 NAAQS for the East Helena
NAA. The EPA notes that all of Lewis and Clark County, Montana,
including the East Helena SO2 NAA, is designated as
``attainment/unclassifiable'' under the 2010 SO2 NAAQS.\4\
---------------------------------------------------------------------------
\4\ See 40 CFR 81.327. See also the EPA's ``Air Quality
Designations for the 2010 Sulfur Dioxide (SO2) Primary
National Ambient Air Quality Standard--Round 3,'' 83 FR 1098,
January 9, 2018.
---------------------------------------------------------------------------
B. Nonattainment Designation and Development of the East Helena SO2
Attainment SIP
The American Smelting and Refining Company (ASARCO) lead smelter
began operating in 1888 in the city of East Helena, Montana. ASARCO has
been the cause of SO2 violations throughout the history of
the East Helena area,\5\ as will be described further below, and was
permanently shut down in 2001.]
---------------------------------------------------------------------------
\5\ 60 FR 5313, January 27, 1995.
---------------------------------------------------------------------------
On September 19, 1975 the EPA approved a revision to the Montana
SIP for SO2 control strategies providing for attainment and
maintenance of the 1971 SO2 NAAQS near the ASARCO lead
smelter in East Helena. SIP-approved emission limitations for
SO2 at the ASARCO smelter were limited to 80 tons per day
(tpd) and 20 tons per six hours.\6\
---------------------------------------------------------------------------
\6\ 40 FR 43216, September 19, 1975.
---------------------------------------------------------------------------
Section 107(d) of the 1977 CAA Amendments gave the EPA authority to
designate areas as nonattainment without a state's request.\7\ On March
3, 1978 the EPA designated the ``East Helena Area'' \8\ as
nonattainment for the primary and secondary SO2 NAAQS.\9\
The East Helena SO2 NAA is demarcated by a circle centered
on the previously existing ASARCO sinter storage building \10\ with a
radius of 0.67 km (0.43 miles).
---------------------------------------------------------------------------
\7\ After the EPA's initial designation of areas as attainment/
unclassifiable or nonattainment in 1978, however, subsequent
designations could be made only at a State's request. In that same
year, the EPA published, for the first time, a list of all section
107(d) nonattainment areas in 40 CFR part 81, which included East
Helena.
\8\ Generally, where the EPA promulgated a designation for
SO2 the minimum area was to be the county in which the
violating monitoring site was located. If states had monitoring data
to substantiate the size of areas they designated, they would be
acceptable by the EPA regardless of size. See 43 FR 8962, March 3,
1978.
\9\ 43 FR 8962, March 3, 1978.
\10\ NAD27 UTM Zone 12, 429484 mE, 5158997 mN.
---------------------------------------------------------------------------
On November 20, 1980 the EPA conditionally approved a SIP revision
for the East Helena SO2 NAA. This SIP revision identified
the continued SO2 violations as being caused by low-level
downwash emissions from the three 110-foot stacks serving the smelter's
blast furnace operations. The control strategy identified in the SIP
revision included replacing the three 110-foot stacks with a single
425-foot stack and setting new emission limits on the 425-foot
stack.\11\ The EPA's action was conditioned upon adequate demonstration
of good engineering practice (GEP) stack height for the new blast
furnace stack, and revised dispersion modeling if GEP height was
determined to be below 375 feet. ASARCO completed a field tracer study
demonstration in 1982, and subsequently proceeded to complete
construction of its new stack based on the study results justifying a
stack height of 375 feet as necessary to overcome the effects of
downwash, which had been identified as the cause of monitored ambient
SO2 violations near the smelter site.\12\ On July 5, 1983
the EPA proposed to approve \13\ the SIP and GEP demonstration as
satisfying the conditional approval requirements, yet pending
litigation \14\ over federal stack
[[Page 34092]]
height regulations postponed final EPA action until years later.
---------------------------------------------------------------------------
\11\ 45 FR 76685, November 20, 1980.
\12\ 60 FR 5313, January 27, 1995.
\13\ 48 FR 30696 July, 5, 1983.
\14\ Sierra Club v. Environmental Protection Agency, 719 F.2d
436 (D.C. Cir. 1983).
---------------------------------------------------------------------------
The CAA Amendments of 1990 reaffirmed the nonattainment designation
of East Helena with respect to the primary and secondary SO2
NAAQS under section 107(d).\15\ Pursuant to the CAA Amendments of 1990,
any state that lacked a fully-approved SIP complying with the
requirements of the Act for an area designated as nonattainment with
respect to the primary SO2 NAAQS, was to resubmit a SIP
fully meeting the requirements of the CAA by May 15, 1992. For the
secondary SO2 NAAQS SIP for East Helena, the EPA established
November 15, 1993 as the submittal due date.\16\
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\15\ See 56 FR 56694, November 6, 1991, ``Designation of Areas
for Air Quality Planning Purposes'' at 56706.
\16\ The Act did not explicitly specify a deadline for the
secondary SO2 NAAQS, however, section 172(b) provides
that the Administrator shall establish a schedule for plan
submissions, but that such submissions shall not extend longer than
three years from the date of nonattainment designation.
---------------------------------------------------------------------------
Given that the East Helena primary SO2 SIP was not
submitted by May 15, 1992, the EPA made a finding of failure to submit,
pursuant to section 179 of the Act, and notified the Governor in a
findings letter dated June 16, 1992.\17\ The date of the findings
letter started the mandatory 18-month sanction clock and established a
two-year deadline by which the EPA was required to promulgate a federal
implementation plan (``FIP'').
---------------------------------------------------------------------------
\17\ 57 FR 48614, October 27, 1992.
---------------------------------------------------------------------------
In our October 7, 1993 ``Deadline for SIP Submittal'' action (58 FR
52237) the EPA recognized that for the ASARCO smelter, the primary and
secondary SO2 NAAQS do not require the same level of
controls. Modeling results indicated an additional 35 percent reduction
in emissions was needed (beyond those reductions to achieve the primary
SO2 NAAQS) in order to comply with the secondary
SO2 NAAQS.\18\ We therefore concluded that attainment of the
secondary SO2 NAAQS will require significant emission
reductions, beyond what was required for attainment of the primary
SO2 NAAQS.
---------------------------------------------------------------------------
\18\ 58 FR 52237, October 7, 1993.
---------------------------------------------------------------------------
After the East Helena primary SO2 Attainment SIP was
submitted by the State on March 30, 1994, the EPA found the submittal
complete pursuant to section 110(k)(1) of the Act and notified the
Governor accordingly in a letter dated May 12, 1994. This completeness
determination corrected the State's deficiency and, therefore,
terminated the 18-month sanctions clock for the primary SO2
SIP under section 179 of the Act.\19\
---------------------------------------------------------------------------
\19\ 60 FR 5313, January 27, 1995.
---------------------------------------------------------------------------
On January 27, 1995 the EPA fully approved the East Helena primary
SO2 Attainment SIP for the East Helena NAA. The EPA noted in
that approval action that Montana's SIP revision only addressed the 24-
hour and annual primary SO2 NAAQS, and did not address the
3-hour secondary SO2 NAAQS.\20\ The modeling conducted by
the State to demonstrate attainment of the 1971 primary NAAQS by the
applicable attainment deadline of November 15, 1995, which the EPA
approved in our January 27, 1995 final rulemaking, will be discussed
further in Section III.A. of today's proposed rulemaking action.
---------------------------------------------------------------------------
\20\ Ibid.
---------------------------------------------------------------------------
As the State of Montana failed to submit the East Helena secondary
SO2 Attainment SIP by November 15, 1993, the EPA acted
pursuant to the non-discretionary requirement of section 179 of the Act
by notifying the Governor in a findings letter dated January 19, 1994,
of the State's failure to submit the SO2 SIP secondary
standard.\21\ In the letter, the EPA also notified Montana of sanctions
available to the EPA under section 110(m) that could be imposed,
including highway funding sanctions, 2:1 emission offsets, and
promulgation of a FIP under section 179(a). The date of the findings
letter started the mandatory 18-month sanction and the two-year FIP
clocks. The sanction clock expired due to inaction by the State on July
19, 1995, and the FIP clock expired on January 19, 1996. The EPA did
not promulgate a FIP upon expiration of the FIP clock. As the sanction
clocks were never stayed or deferred, emissions offsets and highway
sanctions were imposed by operation of law and have remained in place
to date.\22\
---------------------------------------------------------------------------
\21\ This letter is available in the docket for this action.
\22\ See https://www.fhwa.dot.gov/environment/air_quality/highway_sanctions/sanctionsclock.cfm for the status of sanction
clocks under the CAA, including East Helena's status.
---------------------------------------------------------------------------
The State of Montana indicated that they were in the process of
revising the 3-hour secondary SO2 SIP for East Helena when
ASARCO shut down operations on April 4, 2001.\23\ Initially, the ASARCO
shutdown was to be a suspension of operations for an indeterminate
amount of time. Accordingly, ASARCO did not request revocation of their
Title V operating permit, nor their Montana Air Quality Permit (MAQP
#2557-12). ASARCO's indeterminate suspension of operations later
officially became a permanent shutdown, and the State of Montana never
resumed work on the required secondary SO2 SIP. Therefore,
the 3-hour secondary SO2 SIP revision for East Helena was
never submitted to the EPA, causing the aforementioned sanctions to
remain in place. On April 4, 2007, ASARCO's Title V permit (#OP2557-04)
expired without renewal, and on January 5, 2010, MAQP #2557-12 was
formally revoked by the State of Montana.\24\
---------------------------------------------------------------------------
\23\ See ``East Helena SO2 Redesignation Request'',
October 26, 2018, at 5.
\24\ The request to revoke MAQP (#2557-12), and MDEQ's letter in
response confirming revocation, can be found in Appendix A of
Montana's October 26, 2018 ``Request for Redesignation of East
Helena SO2 Nonattainment Area.''
---------------------------------------------------------------------------
On November 25, 2002 the EPA made a technical correction to the
East Helena SO2 SIP pursuant to our authority under
110(k)(6) of the CAA. (67 FR 70554). Specifically, we clarified that in
our January 27, 1995 approval of the East Helena primary SO2
Attainment SIP (60 FR 5313), we failed to indicate that this approval
superseded our approval of the East Helena SO2 Attainment
SIP on September 19, 1975 and terminated the East Helena SO2
Attainment SIP approved on May 1, 1984. The November 25, 2002 action
corrected these errors.
On October 26, 2018, the State of Montana submitted to the EPA a
request for redesignation of the East Helena SO2 NAA to
attainment for the 1971 primary and secondary NAAQS (hereafter ``East
Helena SO2 Redesignation Request''), and a SIP revision
containing a maintenance plan for the East Helena attainment area
(hereafter ``East Helena SO2 Maintenance Plan'').\25\ The
details of Montana's East Helena SO2 Redesignation Request
and Maintenance Plan are discussed in greater detail below.
---------------------------------------------------------------------------
\25\ The submissions are collectively referred to as the ``East
Helena SO2 Redesignation Request and Maintenance Plan.''
---------------------------------------------------------------------------
C. Additional History of the East Helena SO2 Nonattainment
Area
Between 1969 and 1983, concerns of contamination in the East Helena
area led to investigations by the EPA and the State of Montana. High
metal levels were found in air, soil, surface water, and dust in and
around East Helena. In 1984, the EPA listed the 140-acre ASARCO smelter
site and about 2,000 additional acres of surrounding land \26\ on the
Superfund program's National Priorities List (NPL).\27\ In 1998, the
[[Page 34093]]
United States Department of Justice issued a Consent Decree requiring
ASARCO to resolve major environmental compliance issues under the
Resource Conservation and Recovery Act (RCRA). ASARCO began dismantling
the smelter site following the 2001 shutdown. ASARCO filed for
bankruptcy in 2005, and on June 5, 2009, the Bankruptcy Court approved
the Consent Decree and a Settlement Agreement.\28\ In part, the
settlement agreement transferred the East Helena ASARCO properties and
administration thereof to the appointed Custodial Trustee, the Montana
Environmental Trust Group (METG), who assumed responsibility of
corrective action cleanup under oversight of the EPA. The three
remaining smelter stacks were felled in a controlled demolition on
August 4, 2009.\29\ Later, in December 2009, the smelter site was
officially transferred from ASARCO to the METG.\30\
---------------------------------------------------------------------------
\26\ The East Helena Superfund site encompasses and extends
beyond the exterior boundary of the East Helena SO2 NAA.
\27\ ``Fourth Five-Year Review Report for the East Helena
Superfund Site,'' September 2016. See https://semspub.epa.gov/work/08/1768518.pdf. This document is also available in the docket for
this action.
\28\ Ibid.
\29\ See https://missoulian.com/news/state-and-regional/asarco-smokestacks-in-east-helena-toppled-in-early-morning-demolition/article_a86273aa-88e1-11de-9466-001cc4c03286.html.
\30\ ``Fourth Five-Year Review Report for the East Helena
Superfund Site,'' September 2016. See https://semspub.epa.gov/work/08/1768518.pdf. This document is also available in the docket for
this action.
---------------------------------------------------------------------------
As of mid-2019 all that remains of the former ASARCO smelter site
is a 65-acre slag pile, and 65-acres of contaminated land that has been
capped with an evapotranspiration cover. Restorative actions have
allowed open meadows, grasslands, and wetlands to flourish on the
former site; and one and a half miles of the Prickly Pear Creek has
been successfully restored.\31\ The site is privately held by METG, and
public access is restricted. In the future, deed restrictions will be
placed on the property that will prevent another facility from being
constructed on the cap.
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\31\ See https://www.mtenvironmentaltrust.org/east-helena/photo-galleries/east-helena-site-videos/.
---------------------------------------------------------------------------
II. CAA Requirements for Redesignation Requests and Maintenance Plans
A. Statutory Provisions
The CAA provides the requirements for redesignating a nonattainment
area to attainment. Specifically, section 107(d)(3)(E) of the CAA
allows for redesignation of a nonattainment area provided that: (1) The
Administrator determines that the area has attained the applicable
NAAQS; (2) the Administrator has fully approved the applicable
implementation plan for the area under section 110(k); (3) the
Administrator determines that the improvement in air quality is due to
permanent and enforceable reductions in emissions resulting from
implementation of the applicable SIP and applicable federal air
pollutant control regulations and other permanent and enforceable
reductions; (4) the Administrator has fully approved a maintenance plan
for the area as meeting the requirements of section 175A; and (5) the
state containing such area has met all requirements applicable to the
area for purposes of redesignation under section 110 and part D of
title I of the CAA.
CAA section 175A provides the general framework for maintenance
plans. The maintenance plan must provide for maintenance of the NAAQS
for at least 10 years after redesignation, including any additional
control measures as may be necessary to ensure such maintenance. In
addition, maintenance plans are to contain such contingency provisions
as we deem necessary to assure the prompt correction of a violation of
the NAAQS that occurs after redesignation. The contingency measures
must include, at a minimum, a requirement that the state will implement
all control measures contained in the nonattainment SIP prior to
redesignation. Beyond these provisions, however, CAA section 175A does
not define the content of a maintenance plan.
B. EPA Guidance Applicable to the East Helena SO2
Redesignation Request and Maintenance Plan
On April 16, 1992, the EPA provided guidance on redesignation in
the General Preamble for the Implementation of title I of the CAA
Amendments of 1990 (57 FR 13498) and supplemented this guidance on
April 28, 1992 (57 FR 18070). The EPA has provided further guidance on
processing redesignation requests in several guidance documents. Our
primary guidance on maintenance plans and redesignation requests is a
September 4, 1992 memo from John Calcagni, entitled ``Procedures for
Processing Requests to Redesignate Areas to Attainment'' (hereafter
referred to as the ``Calcagni Memo''). Specific guidance on
SO2 redesignations also appears in a January 26, 1995 memo
from Sally L. Shaver, entitled ``Attainment Determination Policy for
Sulfur Dioxide Nonattainment Areas'' (hereafter referred to as the
``Shaver Memo''). The recommendations for addressing the redesignation
request requirements of CAA section 107(d)(3)(E) and the maintenance
plan requirements of 175A provided in these guidance documents will be
referenced throughout the forthcoming sections. Guidance specific to
areas lacking ambient monitoring data, and whose historic violations
were caused by a major point source that is no longer in operation, is
found in an October 18, 2000 memo from John S. Seitz entitled
``Redesignation of Sulfur Dioxide Nonattainment Areas in the Absence of
Monitored Data'' (hereafter referred to as the ``Seitz Memo''). The
Seitz Memo exempts eligible areas from the maintenance plan
requirements of continued monitoring. The Seitz Memo also describes how
attainment and continued maintenance should be demonstrated in such
areas and how sources currently shut down should be treated if they
resume operation. The EPA finds that the East Helena SO2 NAA
is an appropriate area for application of the guidance laid out in the
Seitz Memo. Therefore, as will be discussed further in the EPA's review
of the State's 175A maintenance plan (Section III.B.), the EPA is
proposing to find that the East Helena maintenance area should not
require ambient monitoring to verify continued attainment.
III. EPA's Evaluation of the East Helena SO2 Redesignation Request and
Maintenance Plan
A. EPA Review of CAA Section 107(d)(3)(E) Requirements
The EPA's evaluation of the East Helena SO2
Redesignation Request was based on consideration of the five
redesignation criteria provided under CAA section 107(d)(3)(E). We
analyze each of these criteria individually, below. Based on this
analysis, we propose to find that the State of Montana has met the
redesignation criteria of CAA section 107(d)(3)(E).
1. Criteria (1) Determination That the East Helena Area Has Attained
the 1971 SO2 NAAQS
a. Review of Ambient Monitoring and Emissions Data
In the East Helena SO2 Redesignation Request, the State
primarily relied on historic SO2 ambient data which
indicated attainment of the 1971 primary and secondary NAAQS for the 15
years preceding the ASARCO facility shutdown in 2001. Ambient
SO2 monitoring began in the East Helena area as early as
1968. An enhanced ambient SO2 monitoring network was
established in 1993. This was the result of extensive efforts between
ASARCO and the State of Montana (in coordination with the EPA) to
identify maximum pollutant impact areas using
[[Page 34094]]
tracing studies, monitored atmospheric dispersion parameters,
dispersion modeling, and ambient SO2 concentrations.\32\ The
ambient SO2 monitoring network for the East Helena area was
discontinued on May 31, 2001 following the ASARCO shutdown.
---------------------------------------------------------------------------
\32\ ``Primary SO2 NAAQS SIP Revision for East
Helena, Montana, Technical Support Document, October 4, 1994,'' at
pages 13-15.
---------------------------------------------------------------------------
After reviewing the East Helena SO2 Redesignation
Request and the historic ambient SO2 monitoring data, the
EPA concludes that the monitoring data were collected, and quality
assured in accordance with EPA guidelines.\33\ Table 1 below shows for
all of the 1971 SO2 NAAQS the highest monitored
SO2 value in the East Helena area annually from 1987 to 2001
throughout the enhanced monitoring network.\34\
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\33\ Calcagni Memo at 2.
\34\ From 1986 to 1992 six SO2 monitoring sites
operated. One site was removed June 1992. In 1993, the enhanced
monitoring network added eight additional SO2 sites. In
1997, eight SO2 sites were removed from the network,
thereby leaving five (Microwave, McClellan Creek Road #4, McClellan
Creek Road #6, Water Tank, Kennedy Park) SO2 monitoring
sites in the East Helena area. These five remaining sites, together
making up the ``enhanced monitoring network,'' were located in areas
of historic violations and modeled maximum pollutant impact areas.
Table 1--Ambient SO2 Monitoring in East Helena
[1987-2001]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Max 3-hour Max 24-hour Max annual
value (500 block average average (30
Year PPM secondary Monitor (140 PPB Monitor PPB annual Monitor
NAAQS) primary NAAQS) primary NAAQS)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1987............. 380 Water Tank.............. 114.6 Water Tank.............. 14.88 Microwave.
1988............. 446.6 Water Tank.............. 107.1 Water Tank.............. 9.35 Water Tank.
1989............. 396.6 Water Tank.............. 120 Water Tank.............. 6.28 Water Tank.
1990............. 443.4 Water Tank.............. 67.1 Water Tank.............. 6.95 Water Tank.
1991............. 406.6 Water Tank.............. 57.5 Water Tank.............. 5.01 Kennedy Park.
1992............. * 279 Kennedy Park............ *123 Kennedy Park............ * 12.93 Kennedy Park.
1993............. * 201.6 Water Tank.............. * 54.3 Water Tank.............. * 5.35 Kennedy Park.
1994............. 230.6 Water Tank.............. 78.2 McClellan Rd #6......... 10.41 Kennedy Park.
1995............. 356 Microwave............... 112.7 McClellan Rd #6......... 10.76 Microwave.
1996............. 223.3 McClellan Rd #6......... 56 McClellan Rd #6......... 9.24 McClellan Rd #4.
1997............. 166 McClellan Rd #6......... 62.7 McClellan Rd #6......... 5.64 Water Tank.
1998............. 199 Water Tank.............. 42.7 Water Tank.............. 5.33 Kennedy Park.
1999............. 151 Water Tank.............. 46.6 McClellan Rd #6......... 5.23 Kennedy Park.
2000............. 188.3 McClellan Rd #6......... 62 McClellan Rd #6......... 8.61 Kennedy Park.
2001............. * 196.6 McClellan Rd #6......... * 91.2 McClellan Rd #6......... * 5.71 McClellan Rd #6.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Indicates site did not have at least 75% data completeness for all 4 quarters this year.\35\
As Table 1 shows, there were no monitored violations of any of the
1971 SO2 NAAQS from 1987 until the ASARCO shutdown in 2001
at which time monitoring was discontinued. For the purposes of
determining whether an area has attained the SO2 NAAQS
predicated upon monitoring data, the EPA requires no fewer than two
consecutive years of clean data (i.e., eight quarters with no observed
violations) as recorded in EPA's Air Quality System (AQS).\36\ In
addition, to qualify for attainment determination purposes, the annual
average and second-highest 24-hour average concentrations must be based
upon hourly data that are at least 75 percent complete in each calendar
quarter.\37\
---------------------------------------------------------------------------
\35\ The data collected in 2001 did not meet data completeness
owing to the ASARCO facility shutdown in April 2001, after which the
monitoring network was discontinued in June 2001.
\36\ See EPA Memo ``Section 107 Questions and Answers,'' G.T.
Helms, December 23, 1983, in the docket for this action.
\37\ 40 CFR 50.4.
---------------------------------------------------------------------------
The East Helena NAA has recorded more than eight consecutive
quarters of quality-assured monitoring data that is free of NAAQS
violations while ASARCO operated. Specifically, the three enhanced
network monitors (Microwave, Water Tank, Kennedy Park) operating in the
period between 1987 and 1992 each showed five consecutive years (or 20
consecutive quarters) of complete, quality-assured attaining monitoring
data from 1987 to 1991. As shown, the East Helena enhanced
SO2 monitoring network experienced data completeness issues
in 1992 and 1993. Complete data are available for every year from 1994
to 2000 for all five enhanced network monitors (the aforementioned and
the McClellan Road #4 and McClellan Road #6 monitors, both added as
part of the enhanced network in 1993), which show seven consecutive
years (or 28 consecutive quarters) of complete, quality-assured
attaining monitoring data from 1994-2000. Further, from 1996 until 2001
(between the period of time from EPA's approval of the 1995 East Helena
primary SO2 Attainment SIP until ASARCO's shutdown), none of
the East Helena area ambient SO2 monitors recorded a maximum
value equivalent to or above 50% of a primary or secondary 1971
SO2 NAAQS. This decrease in monitored emissions is in
alignment with emissions data, as the average annual SO2
emissions from ASARCO dropped from 14,792 tons per year (tpy) from
1990-1995, to 10,000 tpy from 1996-2000.\38\ These data indicate that
the East Helena area was attaining the NAAQS before the ASARCO closure.
---------------------------------------------------------------------------
\38\ See East Helena SO2 Redesignation Request and
Maintenance Plan, at 8.
---------------------------------------------------------------------------
In the East Helena SO2 Redesignation Request, the State
also measured these monitor data alongside the emissions from the two
SO2 emitting sources in or near the East Helena NAA.\39\ The
State asserted that these emissions data, presented in Table 2, below,
indicate that the attaining SO2 monitor values were driven
almost entirely by SO2 emissions from ASARCO, and that it is
therefore reasonable to conclude that the monitored concentrations
would have decreased substantially (and thus continued attaining the
NAAQS) following the ASARCO shutdown.
---------------------------------------------------------------------------
\39\ The EPA is not including emissions from the American Chemet
facility, which is located within the East Helena SO2
NAA, because this facility has not emitted a ton of SO2
in any single year since 1990.
[[Page 34095]]
Table 2--Emissions Data for SO2 Sources \40\ in and Near the East Helena SO2 NAA
----------------------------------------------------------------------------------------------------------------
Percentage of
ASARCO Ash Grove total
Year emissions emissions emissions from
ASARCO
----------------------------------------------------------------------------------------------------------------
1996............................................................ 10,181.97 102.88 99.0
1997............................................................ 10,246.02 96.78 99.1
1998............................................................ 9,797.69 95.7 99.0
1999............................................................ 9,819.84 240.89 97.6
2000............................................................ 9,957.31 229.23 97.7
----------------------------------------------------------------------------------------------------------------
As shown in Table 2, the Ash Grove Cement plant (``Ash Grove'')
contributed less than 2.5% of total emissions in or near the East
Helena NAA area in each of the final five years of complete ambient
SO2 monitoring. Ash Grove is located outside the geographic
boundary of the East Helena SO2 NAA, at a distance of 3 km
to the south of the NAA's southern boundary and remains in operation.
Ash Grove's allowable SO2 emissions are limited to 386 tpy
by its MAQP #2005-13 and Title V operating permit #OP2005-09.\41\ Based
on the emissions data provided above, and consistent with our past
conclusions regarding the East Helena NAA,\42\ the EPA proposes to
concur with MDEQ's assertion that ASARCO emitted nearly all of the
SO2 in the East Helena area prior to its 2001 shutdown, and
to concur with the State that monitored SO2 concentrations
in the area would have decreased substantially following the ASARCO
shutdown.
---------------------------------------------------------------------------
\40\ Ibid.
\41\ These permits are available in the docket for this proposed
rulemaking action.
\42\ As noted in the EPA's ``Establishment of Due Date for
Sulfur Dioxide SIP for the Secondary NAAQS for East Helena, MT,''
ASARCO ``is the only major source of SO2 emissions in the
East Helena area.'' See 58 FR 52237, October 7, 1993.
---------------------------------------------------------------------------
As Montana submitted the East Helena SO2 Redesignation
Request to the EPA on October 26, 2018, contemporaneous ambient
SO2 monitoring data was not available due to the
discontinuation of the East Helena monitoring network on May 31, 2001.
Generally, for a redesignation, the most recent eight quarters of
ambient monitoring data must show compliance with the NAAQS.\43\ For
this reason and based on the recommendations of applicable guidance
discussed further below, the EPA also found it appropriate to review
available air quality modeling to complete our determination of
attainment analysis.
---------------------------------------------------------------------------
\43\ EPA Memo ``Section 107 Designation Policy Summary,''
Sheldon Meyers, April 21, 1983.
---------------------------------------------------------------------------
b. Review of Air Quality Modeling Data
Generally, for redesignating a nonattainment area to attainment,
the CAA requires the EPA to determine that the area has attained the
applicable NAAQS.\44\ For some pollutants, this determination relies
solely on air quality monitoring data. However, for SO2,
monitoring data alone is generally insufficient to assess an area's
attainment status. The EPA's Calcagni Memo states that for
SO2 and specified other pollutants, ``dispersion modeling
will generally be necessary to evaluate comprehensively sources'
impacts.'' Typically, attainment planning for SO2 involves
dispersion modeling used to demonstrate that the emission limits
adopted by the state suffice to assure attainment. With such modeling
available, the EPA can generally determine an area to be attaining the
standard without further modeling, provided monitoring data also
support that determination. As noted, dispersion modeling was provided
by the State and ASARCO and approved by the EPA to show attainment of
the primary, but not secondary, SO2 NAAQS. Because the EPA
has approved Montana's primary SO2 NAAQS dispersion modeling
and attainment demonstration but has not received a secondary
SO2 NAAQS dispersion modeling and attainment demonstration
from the State, we cannot rely on dispersion modeling as the sole basis
for redesignation. Therefore, we have combined our analysis of
monitoring and emissions data, listed above, with the modeling data
discussed here to reach our proposed conclusion that the East Helena
SO2 NAA currently attains the 1971 SO2 primary
and secondary NAAQS.
---------------------------------------------------------------------------
\44\ CAA section 107(d)(3)(E)(i).
---------------------------------------------------------------------------
In 1992, after promulgation of the CAA Amendments of 1990, MDEQ,
ASARCO, and the EPA had been working together through compliance
schedules and work plans to address issues found with early modeling
studies to predict the ambient impacts of SO2 emissions from
the ASARCO smelter. These model results indicated that the NAAQS were
violated when the facility operated at allowable emissions limits.
Modeling results predicted SO2 exceedances in two areas to
the south and southeast of the smelter. The EPA concluded from these
early modeling runs that there is an ambient SO2 problem
caused by ASARCO's emissions.\45\ Consequently, ASARCO opted to
establish an enhanced ambient monitoring network in the areas where
initial modeling results indicated maximum SO2
concentrations.
---------------------------------------------------------------------------
\45\ ``Primary SO2 NAAQS SIP Revision for East
Helena, Montana, Technical Support Document, October 4, 1994.'' See
Appendix E, October 9, 1992 letter from Douglas Skie to Jeffery
Chaffee, with enclosure, discussing ASARCO's acceptance of the de
minimis GEP height of 65 m for the blast furnace stack.
---------------------------------------------------------------------------
Based on the results of the early dispersion modeling, ASARCO
developed an updated modeling protocol and refined dispersion modeling
studies to demonstrate compliance with the primary SO2
NAAQS. Control strategies to meet the NAAQS in this scenario included
production and process limitations that would be put into place with
the, as of that time, yet to be submitted East Helena primary
SO2 Attainment SIP approved by the EPA on January 27, 1995
(60 FR 5313).
The General Preamble of the Act details the EPA's interpretation of
reasonably available control measures (RACM), including reasonably
available control technology (RACT), requirements, and defines RACT for
SO2 as the control technology necessary to achieve the
NAAQS.\46\ As part of the EPA-approved ISCST and RTDM dispersion models
used to predict ambient SO2 concentrations around the ASARCO
smelter, multiple modeling runs were performed to test SO2
concentrations related to emissions from each stack. The results were
then used to develop the emission limits and operating stipulations
below for several of the major emission points of the ASARCO smelter.
---------------------------------------------------------------------------
\46\ 57 FR 13547, April 16, 1992; at 13560-13561.
---------------------------------------------------------------------------
From the modeling results, ASARCO developed a set of parameters for
combined emissions of the two largest SO2 emission points,
the sinter and blast furnace stacks, in order to provide operating
flexibility while still providing for attainment of both the annual and
24-hour primary SO2
[[Page 34096]]
NAAQS. These emissions compliance parameters were approved as a set of
three linear equations \47\ regulating the sinter stack and blast
furnace stack daily SO2 emissions. Per these parameters, the
emissions rate from the sinter stack would limit the allowable
emissions rate at the blast furnace to a level that provided for
protection of the annual and 24-hour primary SO2 NAAQS. If
the sinter stack daily emissions fell within one of the three equation
ranges, then the daily emissions of the blast furnace stack must not
exceed a corresponding given value determined by that equation.
---------------------------------------------------------------------------
\47\ ``Primary SO2 NAAQS SIP Revision for East
Helena, Montana, Technical Support Document, October 4, 1994,'' at
20.
---------------------------------------------------------------------------
In addition to the compliance parameters developed for regulating
combined emissions of the sinter and blast furnace stacks, maximum
daily SO2 emission limits were also established for these
and other ASARCO emission points. The maximum allowable SO2
emissions for the sinter and blast furnace stacks were set at 60.27
tons per calendar day and 29.64 tons per calendar day, respectively.
Daily emissions of SO2 from the double-contact sulfuric acid
plant stack were not to exceed 4.30 tons per calendar day. ASARCO was
required to operate continuous emission monitoring systems (CEMS) to
determine compliance with the emission limitations for the sinter plant
stack, blast furnace stack, and acid plant stack. SO2
emissions from the concentrate storage and handling building stack
(including the exhaust from the sinter plant ventilation system
baghouse) were not to exceed 46 pounds per hour or 0.552 tons per
calendar day.
The SIP-approved daily maximum emission limits, and also the
compliance parameters for the combined emissions of the sinter and
blast furnace stacks, went into effect September 1, 1994.\48\ Two
additional emission limitations on minor stack sources at the ASARCO
smelter took effect on June 30, 1995; SO2 emissions from the
crushing mill baghouse stacks #1 and #2 were not to exceed 0.19 and
0.37 tons per calendar day, respectively.
---------------------------------------------------------------------------
\48\ 60 FR 5313, January 27, 1995.
---------------------------------------------------------------------------
As well as the aforementioned emission limitations, the EPA also
imposed additional provisions \49\ on ASARCO's operating stipulations
to ensure that SO2 emissions from miscellaneous volume and
fugitive sources would not increase beyond their current levels.
Moreover, ASARCO's previously approved catalyst screening maintenance
procedures were prohibited.\50\ As a result, sulfur dioxide emissions
were no longer allowed to bypass the double-contact sulfuric acid plant
for catalyst screening while the blast furnace was operating. The East
Helena primary SO2 Attainment SIP set the sunset date of the
catalyst screening exemption as November 15, 1995. The above emissions
limitations and stipulations imposed on ASARCO were incorporated into
the control strategy that the EPA fully approved for the East Helena
primary SO2 Attainment Plan's RACM (including RACT) as
attaining the primary SO2 NAAQS by November 15, 1995.
---------------------------------------------------------------------------
\49\ ``Primary SO2 NAAQS SIP Revision for East
Helena, Montana, Technical Support Document, October 4, 1994,'' at
21.
\50\ During catalyst screening maintenance, SO2 that
would normally be transformed into sulfuric acid and recovered as a
product, instead was bypassing the acid plant pollution controls and
was directly emitted to the atmosphere. See 49 FR 18482, May 1,
1984.
---------------------------------------------------------------------------
In addition to these modeled emission rates for the ASARCO smelter,
Ash Grove was also included in the modeling for Montana's East Helena
SO2 Attainment SIP. The facility was modeled at a constant
rate of 28.71 grams/second, equivalent to 998 tpy of SO2. As
noted, Ash Grove's current allowable SO2 emissions are
limited to 386 tpy by MAQP #2005-13 and Title V operating permit
#OP2005-09.\51\
---------------------------------------------------------------------------
\51\ These permits are available in the docket for this proposed
rulemaking action.
---------------------------------------------------------------------------
The EPA's criteria for evaluation of the modeling and attainment
demonstration was the most recent version (at that time) of the EPA's
Guideline on Air Quality Models at 40 CFR part 51, Appendix W. Through
the modeling provided, Montana demonstrated that the emission limits
ensured compliance with both the 24-hour and annual primary NAAQS. The
EPA determined that the modeling indicated that both primary
SO2 NAAQS would be attained by November 15, 1995, thereby
complying with the attainment date stipulated in the CAA Amendments of
1990. The ASARCO modeling and the East Helena primary SO2
Attainment SIP were approved by the EPA on January 27, 1995 (60 FR
5313).\52\
---------------------------------------------------------------------------
\52\ ``Primary SO2 NAAQS SIP Revision for East
Helena, Montana, Technical Support Document, October 4, 1994.'' See
C. Dispersion Modeling and Attainment Demonstration, at 16.
---------------------------------------------------------------------------
As noted in our January 27, 1995 approval of the East Helena
primary SO2 Attainment SIP (and elsewhere in this notice),
the State of Montana was to provide the EPA with its 3-hour secondary
NAAQS Attainment SIP in a forthcoming submittal. This was due to issues
with compliance with the NAAQS, as discussed further below. After the
promulgation of the CAA Amendments of 1990, the State of Montana was to
provide modeling as part of an attainment demonstration showing
compliance with the secondary 3-hour SO2 NAAQS. Due to early
modeled NAAQS violations, ASARCO elected to perform additional
dispersion modeling using CTDMPLUS/ISCST2 and CTSCREEN models, and
control strategy evaluations to show attainment with the secondary
SO2 NAAQS. Additionally, an enhanced meteorological
monitoring network (to include doppler SODAR) was established to
collect data for the complex CTDMPLUS dispersion model. Despite these
efforts, the required submittal (including the modeled attainment
demonstration) never materialized before the ASARCO smelter ceased
operations in 2001.
As discussed earlier in this notice, ASARCO determined that the
allowable emission rates modeled to achieve the primary 1971
SO2 NAAQS in the East Helena primary SO2
Attainment SIP would need to reduce emissions an additional 35 percent
to achieve modeled compliance with the secondary SO2 NAAQS.
In our October 7, 1993 ``Deadline for SIP Submittal'' action, we noted
that the substantial emissions reductions required to model attainment
of the secondary SO2 NAAQS cannot reasonably be achieved
through production or process changes. ASARCO estimated that if
production were reduced by 35 percent, annual revenue would be reduced
by more than $12.4 million. ASARCO contended that such a reduction in
revenue would make continued operation of the East Helena smelter
economically infeasible. Though the EPA could not confirm the projected
level of revenue loss, we noted that the economic impact to the
industry and the community would be significant. We agreed with the
State of Montana and ASARCO that the only feasible way to meet the
secondary SO2 NAAQS, based on modeling results, would be to
install new air pollution control equipment or new process
technologies.\53\ Because Montana failed to submit the required
secondary SO2 NAAQS SIP, highway and offset sanctions were
imposed by operation of law pursuant to a finding of failure to submit
for a designated nonattainment area (42 U.S.C. 7509(a)(1)) on December
16, 1993.\54\
---------------------------------------------------------------------------
\53\ 58 FR 52237, October 7, 1993.
\54\ See EPA's January 19, 1994 letter to Montana Governor
Racicot in the docket for this action.
---------------------------------------------------------------------------
Considering ASARCO's estimate (based on dispersion modeling) \55\
that
[[Page 34097]]
an additional 35 percent emissions reduction would be necessary to meet
the secondary SO2 NAAQS, the EPA concludes that this level
of reduction was far surpassed by the ASARCO shutdown. ASARCO's maximum
allowable SO2 emissions were permitted at 18,773 tpy when
the EPA determined that this level of control was sufficient to attain
the 1971 primary SO2 NAAQS, and thus approved the East
Helena primary SO2 Attainment SIP.\56\ As noted, Ash Grove
was also included in this attainment modeling, with a modeled constant
emission rate of 28.71 grams per second, equivalent to 998 tpy of
SO2. Hence, an additional reduction of 6,570.5 tpy (35
percent of 18,773) of SO2 from ASARCO, or estimated
allowable emissions 12,202.5 tpy, should suffice to meet the secondary
SO2 NAAQS even if Ash Grove were to emit 998 tpy of
SO2 annually, over 2.5 times current Ash Grove allowable
emissions. The current allowable emissions in the East Helena area are
386.09 tpy of SO2 (See Table 3), just 3 percent of the
estimated allowable rates sufficient to attain the secondary
SO2 NAAQS. On this basis, the EPA is proposing to conclude
that the modeling performed as part of the East Helena primary
SO2 Attainment SIP, considered alongside current allowable
emissions in the East Helena area and the attaining monitoring listed
in Table 1, demonstrate that the East Helena area is attaining the 3-
hour secondary SO2 NAAQS.
---------------------------------------------------------------------------
\55\ 58 FR 52237, October 7, 1993.
\56\ ASARCO's enforceable SO2 emission limits have
been comprised of permit limits and SIP-approved limits. ASARCO's
MAQP SO2 emission limit was 18,733 tpy before the permit
was revoked in 2010. The East Helena primary SO2
Attainment SIP further strengthened ASARCO's SO2
emissions limits as discussed in detail above. All of ASARCO's
emission limits, be they SIP-approved or permitted, are enforceable.
Had ASARCO operated at its daily maximum emission limits as a
constant yearlong rate, doing so would have violated the MAQP
emission limit and the enforceable compliance parameters. The daily
maximum emission limit was never intended as a constant maximum
allowable emission rate. Rather, the 1995 primary SO2
Attainment SIP emission limits and operating stipulations were
developed to provide ASARCO with maximum operating flexibility.
---------------------------------------------------------------------------
As will be discussed further in the EPA's review of 107(d)(3)(E)
criteria 2 and 5, the EPA's longstanding interpretation of the
nonattainment planning requirements of CAA section 172 is that once an
area is attaining the NAAQS, those requirements are not ``applicable''
for purposes of CAA section 107(d)(3)(E)(ii) and therefore need not be
approved into the SIP before the EPA can redesignate the area. The EPA
is proposing to reach a similar conclusion regarding the State's
outstanding requirement to submit to the EPA a 3-hour secondary NAAQS
Attainment SIP. Specifically, because the EPA is proposing to conclude
that the East Helena NAA is currently attaining the 3-hour secondary
SO2 NAAQS, the State is not required to also submit a SIP
providing for such attainment.
c. EPA's Proposed Determination of Attainment
As discussed above, the normal prerequisite for redesignation of a
nonattainment area is submittal of quality-assured ambient data with no
violations of the NAAQS for the most recent eight consecutive
quarters.\57\ Generally, a modeling demonstration is also necessary for
SO2 nonattainment areas seeking to redesignate.\58\ The
Seitz Memo recognizes that states should be provided an opportunity to
request redesignation for areas where there is no contemporary
monitoring data available if there is no reasonable basis for assuming
that SO2 violations persist after closure of the sources
that were the cause of these violations.\59\ We find that East Helena
is such an area, and that available monitoring and modeling data
discussed above also indicate current attainment of both the primary
and secondary 1971 SO2 NAAQS. We therefore propose to
determine that the East Helena NAA is attaining the primary and
secondary 1971 SO2 NAAQS.
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\57\ Helms Memo at 1.
\58\ Calcagni Memo at 3.
\59\ Seitz Memo at 1.
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2. Criteria (2)--Montana Has a Fully Approved SIP Under Section 110(k);
and Criteria (5)--Montana Has Met All Applicable Requirements Under
Section 110 and Part D of Title I of the CAA
For redesignating a nonattainment area to attainment under a NAAQS,
the CAA requires the EPA to determine that the state has met all
applicable requirements for that NAAQS under section 110 and part D of
title I of the CAA (CAA section 107(d)(3)(E)(v)) and that the state has
a fully approved SIP under section 110(k) for that NAAQS for the area
(CAA section 107(d)(3)(E)(ii)). The EPA proposes to find that Montana
has met all applicable SIP requirements for the East Helena
SO2 NAA under section 110 of the CAA (general SIP
requirements) for purposes of redesignation. Additionally, the EPA
proposes to find that the Montana SIP satisfies the criterion that it
meets applicable SIP requirements for purposes of redesignation under
part D of title I of the CAA in accordance with section
107(d)(3)(E)(v). Further, the EPA proposes to determine that the SIP is
fully approved with respect to all requirements applicable for the 1971
SO2 NAAQS for purposes of redesignation in accordance with
section 107(d)(3)(E)(ii). In making these determinations, the EPA
ascertained which requirements are applicable to the East Helena
SO2 NAA and, if applicable, that they are fully approved
under section 110(k).
a. The East Helena SO2 NAA Has Met All Applicable
Requirements Under Section 110 and Part D of the CAA
General SIP Requirements
General SIP elements and requirements are delineated in section
110(a)(2) of title I, part A of the CAA. These requirements include,
but are not limited to, the following: Submittal of a SIP that has been
adopted by the state after reasonable public notice and hearing;
provisions for establishment and operation of appropriate procedures
needed to monitor ambient air quality; implementation of a source
permit program; provisions for the implementation of part C
requirements (Prevention of Significant Deterioration (PSD)) and
provisions for the implementation of part D requirements (New Source
Review (NSR) permit programs); provisions for air pollution modeling;
and provisions for public and local agency participation in planning
and emission control rule development.
Section 110(a)(2)(D) requires that SIPs contain certain measures to
prevent sources in a state from significantly contributing to air
quality problems in another state. To implement this provision, the EPA
has required certain states to establish programs to address the
interstate transport of air pollutants. The section 110(a)(2)(D)
requirements for a state are not linked with a particular nonattainment
area's designation and classification in that state. The EPA believes
that the requirements linked with a particular nonattainment area's
designation and classifications are the relevant measures to evaluate
in reviewing a redesignation request. The transport SIP submittal
requirements, where applicable, continue to apply to a state regardless
of the designation of any one particular area in the state. Thus, the
EPA does not believe that the CAA's interstate transport requirements
should be construed to be applicable requirements for purposes of
redesignation.
In addition, the EPA believes other section 110 elements that are
neither connected with nonattainment plan submissions nor linked with
an area's attainment status are applicable
[[Page 34098]]
requirements for purposes of redesignation. The area will still be
subject to these requirements after the area is redesignated. The
section 110 and part D requirements which are linked with a particular
area's designation and classification are the relevant measures to
evaluate in reviewing a redesignation request. This approach is
consistent with the EPA's existing policy on applicability (i.e., for
redesignations) of conformity and oxygenated fuels requirements, as
well as with section 184 ozone transport requirements. See Reading,
Pennsylvania, proposed and final rulemakings (61 FR 53174-53176,
October 10, 1996), (62 FR 24826, May 7, 2008); Cleveland-Akron-Loraine,
Ohio, final rulemaking (61 FR 20458, May 7,1996); and Tampa, Florida,
final rulemaking at (60 FR 62748, December 7, 1995). See also the
discussion on this issue in the Cincinnati, Ohio, redesignation (65 FR
37890, June 19, 2000), and in the Pittsburgh, Pennsylvania,
redesignation (66 FR 50399, October 19, 2001).
Title I, Part D, Applicable SIP Requirements
Section 172(c) of the CAA sets forth the basic requirements of
attainment plans for nonattainment areas that are required to submit
them pursuant to section 172(b). Subpart 5 of part D, which includes
section 191 and 192 of the CAA, establishes requirements for
SO2, nitrogen dioxide and lead nonattainment areas. A
thorough discussion of the requirements contained in sections 172(c)
can be found in the General Preamble for Implementation of Title I (57
FR 13498).
Subpart 5 Section 172 Requirements
Section 172(c)(1) requires the plans for all nonattainment areas to
provide for the implementation of all RACM as expeditiously as
practicable and to provide for attainment of the NAAQS. The EPA
interprets this requirement to impose a duty on all nonattainment areas
to consider all available control measures and to adopt and implement
such measures as are reasonably available for implementation in each
area as components of the area's attainment demonstration. Under
section 172, states with nonattainment areas must submit plans
providing for timely attainment and meeting a variety of other
requirements.
The EPA's longstanding interpretation of the nonattainment planning
requirements of section 172 is that once an area is attaining the
NAAQS, those requirements are not ``applicable'' for purposes of CAA
section 107(d)(3)(E)(ii) and therefore need not be approved into the
SIP before the EPA can redesignate the area. In the 1992 General
Preamble for Implementation of Title I, the EPA set forth its
interpretation of applicable requirements for purposes of evaluating
redesignation requests when an area is attaining a standard. See 57 FR
13498, 13564 (April 16, 1992). The EPA noted that the requirements for
Reasonable Further Progress (RFP) and other measures designed to
provide for attainment do not apply in evaluating redesignation
requests because those nonattainment planning requirements ``have no
meaning'' for an area that has already attained the standard. Id. This
interpretation was also set forth in the Calcagni Memo. The EPA's
understanding of section 172 also forms the basis of its Clean Data
Policy, which was articulated with regard to SO2 in the 2010
SO2 NAA Guidance and suspends a state's obligation to submit
most of the attainment planning requirements that would otherwise
apply, including an attainment demonstration and planning SIPs to
provide for RFP, RACM, and contingency measures under section
172(c)(9). Courts have upheld the EPA's interpretation of section
172(c)(1) for ``reasonably available'' control measures and control
technology as meaning only those controls that advance attainment,
which precludes the need to require additional measures where an area
is already attaining. NRDC v. EPA, 571 F.3d 1245, 1252 (D.C. Cir.
2009); Sierra Club v. EPA, 294 F.3d 155, 162 (D.C. Cir. 2002); Sierra
Club v. EPA, 314 F.3d 735, 744 (5th Cir. 2002); Sierra Club v. EPA, 375
F.3d 537 (7th Cir. 2004). But see Sierra Club v. EPA, 793 F.3d 656 (6th
Cir. 2015).
Therefore, because attainment has been reached in the East Helena
SO2 NAA, no additional measures are needed to provide for
attainment, and section 172(c)(1) requirements for an attainment
demonstration and RACM are not part of the ``applicable implementation
plan'' required to have been approved prior to redesignation per CAA
section 107(d)(3)(E)(ii). The other section 172 requirements that are
designed to help an area achieve attainment--the section 172(c)(2)
requirement that nonattainment plans contain provisions promoting
reasonable further progress, the requirement to submit the section
172(c)(9) contingency measures, and the section 172(c)(6) requirement
for the SIP to contain control measures necessary to provide for
attainment of the NAAQS--are also not required to be approved as part
of the ``applicable implementation plan'' for purposes of satisfying
CAA section 107(d)(3)(E)(ii).\60\
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\60\ The EPA notes that MDEQ has met the requirements of CAA
section 172(c)(1), (2), (6), and (9) for the 1971 primary
SO2 NAAQS, but not for the 1971 secondary SO2
NAAQS. 60 FR 5315, January 27, 1995.
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Section 172(c)(3) requires submission and approval of a
comprehensive, accurate, and current inventory of actual emissions. The
East Helena primary SO2 Attainment SIP contained an
inventory which the EPA approved as meeting the requirements of CAA
section 172(c)(3).\61\ This inventory reported annual SO2
emissions for the ASARCO facility at approximately 18,000 tpy, with
approximately 280 tpy attributed to the Ash Grove kiln stacks. The more
contemporary emissions inventory submitted as part of the maintenance
plan for the East Helena SO2 NAA will be discussed further
in the maintenance plan portion of this proposed action.
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\61\ 60 FR 5315, January 27, 1995.
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Section 172(c)(4) requires the identification and quantification of
allowable emissions for major new and modified stationary sources to be
allowed in an area, and section 172(c)(5) requires source permits for
the construction and operation of new and modified major stationary
sources anywhere in the nonattainment area. The EPA has a longstanding
interpretation that because Nonattainment NSR (NNSR) is replaced by PSD
upon redesignation, nonattainment areas seeking redesignation to
attainment need not have a fully approved part D NNSR program in order
to be redesignated. A more detailed rationale for this view is
described in a memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation, dated October 14, 1994, entitled ``Part D New
Source Review Requirements for Areas Requesting Redesignation to
Attainment.'' Montana currently has a fully-approved PSD and part D
NNSR program in place at Administrative Rules of Montana (ARM)
Subchapter 8. Montana's PSD program will become effective in the East
Helena SO2 NAA upon redesignation to attainment.
Section 172(c)(7) requires the SIP to meet the applicable
provisions of section 110(a)(2). As noted above, the EPA believes the
Montana SIP meets the requirements of section 110(a)(2) applicable for
purposes of redesignation.
Section 176 Conformity Requirements
Section 176(c) of the CAA requires states to establish criteria and
procedures to ensure that federally supported or funded projects
conform to
[[Page 34099]]
the air quality planning goals in the applicable SIP. The requirement
to determine conformity applies to transportation plans, programs, and
projects that are developed, funded, or approved under title 23 of the
United States Code (U.S.C.) and the Federal Transit Act (transportation
conformity) as well as to all other federally supported or funded
projects (general conformity). State transportation conformity SIP
revisions must be consistent with federal conformity regulations
relating to consultation, enforcement, and enforceability that the EPA
promulgated pursuant to its authority under the CAA.
Montana has an approved general conformity SIP for the East Helena
area. See 67 FR 62392 (October 7, 2002). Moreover, the EPA interprets
the conformity SIP requirements as not applying for purposes of
evaluating a redesignation request under section 107(d) because, like
other requirements listed above, state conformity rules are still
required after redesignation and federal conformity rules apply where
state rules have not been approved. See Wall v. EPA, 265 F.3d 426 (6th
Cir. 2001) (upholding this interpretation); see also 60 FR 62748
(December 7, 1995) (redesignation of Tampa, Florida).
For these reasons, the EPA proposes to find that Montana has
satisfied all applicable requirements for purposes of redesignation of
the East Helena SO2 NAA under section 110 and part D of
title I of the CAA.
b. The East Helena SO2 NAA Has a Fully Approved Applicable
SIP Under Section 110(k) of the CAA
The EPA has fully approved the applicable Montana SIP for the East
Helena SO2 NAA under section 110(k) of the CAA for all
requirements applicable for purposes of redesignation. As indicated
above, the EPA believes that the section 110 elements that are neither
connected with nonattainment plan submissions nor linked to an area's
nonattainment status are not applicable requirements for purposes of
redesignation. The EPA has approved all part D requirements applicable
under the 1971 SO2 NAAQS, as identified above, for purposes
of this redesignation.
3. Criteria (3)--The Air Quality Improvement in the East Helena
SO2 NAA Is Due to Permanent and Enforceable Reductions in
Emissions
For redesignating a nonattainment area to attainment, the CAA
requires the EPA to determine that the air quality improvement in the
area is due to permanent and enforceable reductions in emissions
resulting from implementation of the SIP, applicable federal air
pollution control regulations, and other permanent and enforceable
reductions (CAA section 107(d)(3)(E)(iii)). The EPA proposes to find
that Montana has demonstrated that the observed air quality improvement
in the East Helena SO2 NAA is due to permanent and
enforceable reductions in emissions. Specifically, the EPA considers
the shutdown of the ASARCO smelter, identified as the cause of
SO2 NAAQS violations,\62\ to be both permanent and
enforceable due to the source's dismantling and permit revocation. The
EPA notes that the ASARCO smelter was still operating during the 1987-
2001 period during which the 1971 primary and secondary SO2
NAAQS was attained across the East Helena enhanced monitoring network.
Due to the ASARCO shutdown, the EPA reasonably concludes that the 1971
SO2 NAAQS would have and will continue to be attained by a
far greater margin following the facility's shutdown. As stated in the
Calcagni Memo, ``Emission reductions from source shutdowns can be
considered permanent and enforceable to the extent that those shutdowns
have been reflected in the SIP and all applicable permits have been
modified accordingly.'' \63\ As noted, MDEQ revoked ASARCO's MAQP
#2557-12 on January 5, 2010, and the source's Title V permit #OP2557-04
expired on April 4, 2007.\64\ Further, the ASARCO facility has been
demolished, making its future operation impossible and thus exhibiting
the permanence of the emissions reductions in the nonattainment area.
Any new sources seeking to operate within the East Helena NAA would
first be required to demonstrate that their new SO2
emissions would not interfere with attainment and maintenance of the
1971 (and 2010) SO2 NAAQS.\65\ Therefore, the EPA is
proposing to find that the air quality improvement in the East Helena
SO2 NAA is due to permanent and enforceable reductions in
emissions.
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\62\ 58 FR 52237, October 7, 1993.
\63\ Calcagni Memo at 10.
\64\ Permit revocation letter is included in the docket for this
action.
\65\ All 1971 SO2 NAAQS will continue to apply in the
East Helena SO2 NAA (in addition to the 2010
SO2 NAAQS) after redesignation to attainment unless
further action is taken by the State requesting 1971 primary
SO2 NAAQS revocation. As stated in the 2010
SO2 NAAQS promulgation, ``EPA is also providing that the
annual and 24-hour NAAQS remain in place for any current
nonattainment area . . . until the affected area submits, and EPA
approves, a SIP with an attainment, implementation, maintenance and
enforcement SIP which fully addresses the attainment and maintenance
requirements of the new SO2 NAAQS.'' See 75 FR 35581,
June 22, 2010.
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4. Criteria (4)--The East Helena SO2 Nonattainment Area Has
a Fully Approved Maintenance Plan Pursuant to Section 175A of the CAA
To redesignate a nonattainment area to attainment, the CAA requires
the EPA to determine that the area has a fully approved maintenance
plan pursuant to section 175A of the CAA (CAA section
107(d)(3)(E)(iv)). In conjunction with its request to redesignate the
East Helena SO2 NAA to attainment for the 1971 primary and
secondary SO2 NAAQS, MDEQ submitted a SIP revision to
provide for the maintenance of these NAAQS for at least 10 years after
the effective date of redesignation to attainment. As will be discussed
in further detail in Section III.B., ``CAA Section 175A Requirements,''
the EPA is proposing to find that this maintenance plan for the area
meets the requirements for approval under section 175A of the CAA.
B. EPA Review of CAA Section 175A Requirements
1. Maintenance Plan Requirements
CAA section 175A sets forth the elements of a maintenance plan for
areas seeking redesignation from nonattainment to attainment. Under
section 175A, the plan must demonstrate continued attainment of the
applicable NAAQS for at least 10 years after the Administrator approves
a redesignation to attainment. Eight years after the redesignation, the
state must submit a revised maintenance plan demonstrating that
attainment will continue to be maintained for the 10 years following
the initial 10-year period. To address the possibility of future NAAQS
violations, the maintenance plan must contain contingency measures as
the EPA deems necessary to assure prompt correction of any future
SO2 NAAQS violations. The Calcagni Memo provides further
guidance on the content of a maintenance plan, explaining that a
maintenance plan should address five requirements: The attainment
emissions inventory; maintenance demonstration; monitoring;
verification of continued attainment; and a contingency plan.\66\
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\66\ Calcagni Memo at 8-13.
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As noted, the Seitz Memo provides maintenance plan guidance
specific to nonattainment areas whose historic violations were caused
by a major point source that is no longer in operation. The Seitz memo
provides a path for such areas to justify exemption from
[[Page 34100]]
maintenance plan requirements of continued monitoring and describes how
attainment and continued maintenance could be demonstrated in such
areas. Based on our review of the East Helena SO2
Redesignation Request and relevant past rulemaking actions,\67\ the EPA
finds that the East Helena SO2 NAA is an appropriate area
for application of the guidance laid out in the Seitz Memo. The EPA has
therefore elected to assess the East Helena SO2 Maintenance
Plan based on the recommendations provided in the Seitz Memo, as
discussed further below.
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\67\ 60 FR 5315, January 27, 1995.
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2. Review of the East Helena SO2 Maintenance Plan in the
Context of the Seitz Memo
In order to allow areas to qualify for redesignation to attainment,
the Seitz Memo policy requires that the maintenance plan address
otherwise applicable provisions, and include: (1) Emissions inventories
representing actual emissions when violations occurred, current
emissions and emissions projected to the 10th year after redesignation;
(2) Dispersion modeling showing that no NAAQS violations will occur
over the next 10 years and that the shut down source was the dominant
cause of the high concentrations in the past; (3) Evidence that if the
shut down source resumes operation, it would be considered a new source
and be required to obtain a permit under the PSD provisions of the CAA;
and (4) A commitment to resume monitoring before any major
SO2 source commences operation. The EPA will address these
requirements individually, below.
a. Emissions Inventory
The Seitz Memo recommends a state's maintenance plan include
emissions inventories representing actual emissions when violations
occurred, current emissions and emissions projected to the 10th year
after redesignation. Montana's East Helena SO2 Maintenance
Plan included both past actual and future projected attainment
emissions inventories \68\ for the East Helena SO2 NAA. The
two sources included in these inventories are the American Chemet
Corporation (Chemet) and Ash Grove, despite the latter facility's
location outside of the East Helena SO2 NAA. MDEQ's future
projected attainment inventory used Chemet's permitted allowable
SO2 limit of 0.09 tpy (per MAQP #1993-19) and Ash Grove's
permitted allowable limit of 386 tpy, to calculate a total projection
of 386.09 tpy of SO2 emissions each year from 2017 to 2026.
This attainment inventory is provided in Table 3, below, with actual
emissions replacing the State's projected allowable limits for 2017. We
conclude that the inventories provided by the State are complete,
accurate, and consistent with applicable CAA provisions and the Seitz
Memo.
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\68\ East Helena SO2 Redesignation Request and
Maintenance Plan, October 26, 2018, at 13-14.
---------------------------------------------------------------------------
The State also included historic emissions data for ASARCO and Ash
Grove from 1990 to 2001.\69\ Neither the State nor the EPA has
emissions data available for these facilities prior to 1990, due to
ASARCO's 2001 shut down and the passage of time. Therefore, there is
not an inventory available that can provide actual emissions when
violations occurred, as recommended by the Seitz Memo. We do not
consider this to be an issue, as the historic emissions inventory
provided by the State and our review of previous rulemaking actions for
East Helena clearly show that the shut down source, ASARCO, was the
cause of historic SO2 violations.
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\69\ Id. at 8.
Table 3--East Helena SO2 Maintenance Area Projected Attainment Inventory
------------------------------------------------------------------------
Year Ash grove Chemet
------------------------------------------------------------------------
2017.............................................. * 102 * 0.02
2018.............................................. 386 0.09
2019.............................................. 386 0.09
2020.............................................. 386 0.09
2021.............................................. 386 0.09
2022.............................................. 386 0.09
2023.............................................. 386 0.09
2024.............................................. 386 0.09
2025.............................................. 386 0.09
2026.............................................. 386 0.09
------------------------------------------------------------------------
* Indicates actual emissions.
b. Dispersion Modeling
Past EPA policy memoranda on SO2 redesignations have
recommended dispersion modeling. Per the Seitz Memo, the purpose of
such modeling analysis is to show that; (1) No SO2 NAAQS
violations presently occur or can be projected to occur during the next
10 years anywhere within the nonattainment area, and (2) point sources,
which have since shut down, were the dominant sources contributing to
high SO2 concentrations in the airshed.\70\ The State
elected not to submit an updated dispersion modeling analysis to the
EPA as part of the East Helena SO2 Maintenance Plan. For
this reason, the EPA is relying on the dispersion modeling conducted in
coordination with ASARCO, the MDEQ, and the EPA in the 1990's as part
of the East Helena primary SO2 Attainment Plan, to make this
two-part showing. An in depth discussion on this modeling is presented
in section III.A.1., above.
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\70\ Seitz Memo at 3.
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The EPA finds that the dispersion modeling for the East Helena
primary SO2 Attainment Plan is adequate to make the two-part
showing recommended by the Seitz Memo. First, the SO2 limits
relied upon to model attainment of the 1971 primary SO2
NAAQS, and the additional 35 percent SO2 reduction necessary
to model attainment of the secondary SO2 NAAQS, both
projected annual ASARCO emissions above 10,000 tpy and Ash Grove
emissions at 998 tpy. Because current allowable emissions in the East
Helena area are just 386.09 tpy, we find this sufficient evidence that
no violations presently occur or can be projected to occur during the
next 10 years anywhere within the nonattainment area. Second, the
information provided throughout today's proposed rulemaking, most
notably Table 2, clearly demonstrate that ASARCO was the dominant
source contributing to high SO2 concentrations in the East
Helena area. For these reasons, the EPA finds that the ambient
SO2 modeling requirement for redesignations and maintenance
plans is met.
c. Permitting of New or Modified Sources
For the East Helena SO2 NAA, the NNSR permit program
responsibilities are held by MDEQ. MDEQ has longstanding, SIP-approved
PSD and minor NSR permitting programs.\71\ In conjunction with all SIP-
approved requirements of MDEQ's SIP-approved PSD permitting program,
the Source Impact Analysis requires ``[t]he owner or operator of the
proposed source or modification shall demonstrate that allowable
emission increases from the proposed source or modification, in
conjunction with all other applicable emission increases or reductions
(including secondary emissions), would not cause or contribute to air
pollution in violation of any national ambient air quality standard in
any air quality control region or any applicable maximum allowable
increase over the baseline concentration in any area.'' \72\
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\71\ ARM Title 17, Chapter 8, Subchapters 7, 8, 9 and 10.
\72\ ARM 17.8.820.
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Furthermore, in conjunction with all SIP-approved requirements of
MDEQ's SIP-approved minor source permitting program, Conditions For
Issuance or
[[Page 34101]]
Denial of Permit,\73\ requires that, ``[a] Montana air quality permit
may not be issued for a new or modified facility or emitting unit
unless the applicant demonstrates that the facility or emitting unit
can be expected to operate in compliance with the Clean Air Act of
Montana and rules adopted under that Act, the Federal Clean Air Act and
rules promulgated under that Act (as incorporated by reference in ARM
17.8.767), and any applicable requirement contained in the Montana
State Implementation Plan (as incorporated by reference in ARM
17.8.767), and that it will not cause or contribute to a violation of
any Montana or national ambient air quality standard.'' MDEQ is
committed to continuing to implement its SIP-approved major and minor
source permitting programs in the East Helena maintenance area to
ensure that any new or modified (or reopened) \74\ industrial source of
SO2 emissions will not cause or contribute to a subsequent
SO2 NAAQS violation in the area. Further, any appropriate
changes to the ARM will be submitted to the EPA for approval as a SIP
revision.
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\73\ ARM 17.8.749.
\74\ The EPA does not foresee any new source operating within
the boundaries of the East Helena NAA due to its Superfund
designation, completed remediation activities to date, and
institutional controls imposed on the East Helena Site (including
future deed restrictions).
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These programs will apply to any major source wishing to locate in
the East Helena NAA once the it is redesignated to attainment. The MDEQ
commitment to treat any major source in or near East Helena as ``new''
under the PSD program satisfies the preconstruction permit provision of
the Seitz Memo as one of the prerequisites to redesignation.
d. Monitoring
In the East Helena SO2 Maintenance Plan, the State
requires installation of appropriate SO2 monitoring for a
minimum of three years if a major source of SO2 attempts to
locate within the East Helena SO2 NAA and the source's
modeling indicates that the SO2 impacts are greater than 75
percent of the NAAQS including background to ensure that the NAAQS are
adequately protected. Moreover, Montana's PSD program also requires
that permit applicants conduct preconstruction monitoring to identify
baseline concentrations. Together, these commitments address the
monitoring provision of the Seitz Memo.
3. Review of Remaining Maintenance Plan Provisions
As discussed above, CAA section 175A sets forth the statutory
requirements for maintenance plans, and the Calcagni and Shaver memos
cited above contain specific EPA guidance. The only maintenance plan
element not covered by the Seitz Memo is the contingency provision. CAA
Section 175A provides that maintenance plans ``contain such contingency
provisions as the Administrator deems necessary to assure that the
State will promptly correct any violation of the standard which occurs
after the redesignation of the area as an attainment area.''
The East Helena SO2 Maintenance Plan includes the
State's commitment to continue to implement and enforce measures
necessary to maintain the SO2 NAAQS. MDEQ's current
operating permit program places limits on SO2 emissions from
existing sources. Should an existing facility (such as Chemet) want to
increase SO2 emissions by 40 tpy or more, the facility would
be subject to the PSD program. Should a new facility be constructed in
the East Helena maintenance area, the facility would also be subject to
PSD.
The Calcagni Memo emphasizes the importance of specific contingency
measures, schedules for adoption, and action levels to trigger
implementation of the contingency plan. The Calcagni Memo also states
that a contingency plan must require that the state implement all
measures contained in the part D nonattainment plan. Since all of the
measures contained in the East Helena primary SO2 Attainment
Plan (which satisfied part D for the 1971 primary NAAQS) specifically
addressed the ASARCO facility, the EPA does not find it reasonable to
contain such measures in the East Helena SO2 Maintenance
Plan now that the facility does not exist. Additionally, the EPA is
proposing to conclude that the projected allowable SO2
emissions limits for the two remaining sources in the East Helena area
(Ash Grove and Chemet) are protective of the NAAQS. For these reasons,
the State's contingency plan focuses on ensuring that new sources or
modifications of existing permitted sources are protective of the
SO2 NAAQS. We agree with the State that any new source
planning to locate within the maintenance area or existing source
proposing a significant \75\ increase in SO2 emissions would
be subject to Montana's SIP-approved PSD and minor NSR permitting
programs.\76\ Thus, we find that MDEQ's permitting program is
sufficient to track future air quality trends and to assure that the
East Helena maintenance area will not violate the NAAQS. If Montana
identifies the potential for a NAAQS violation through the permitting
process, the State would be required to ascertain what measures must be
taken to avoid the violation. We are therefore proposing to conclude
that the East Helena SO2 Maintenance Plan satisfactorily
addresses the ``contingency plan'' requirement of CAA section 175A.
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\75\ Per 40 CFR 52.21(b)(23)(i), a net emissions increase or
potential to emit of 40 tpy or greater is considered ``significant''
for SO2.
\76\ ARM Title 17, Chapter 8, Subchapters 7, 8, 9 and 10.
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The EPA generally requires that a state continue ambient monitoring
to meet the maintenance plan requirement for verification of continued
attainment. However, the Seitz Memo provides the opportunity for
redesignated areas to be exempt from continued ambient monitoring of
maintenance areas when the dominant source of SO2 in the
area has shut down.\77\ As discussed earlier in this proposed notice,
we find that the East Helena SO2 NAA's unique circumstances
are appropriate for application of the Seitz Memo guidance. Therefore,
we determine that in this instance, an exemption to continued
monitoring would be appropriate. If today's action is finalized as
proposed, MDEQ will not be monitoring to verify SO2 NAAQS
compliance in the East Helena area unless required by Montana's
permitting program following the introduction of a new or modified
source to the area. The state has provided evidence that SO2
monitoring conducted between 1987 and ASARCO's shutdown in 2001 met the
applicable NAAQS with no violations observed during that time (See
Table 1). Additionally, due to the total removal of the ASARCO
facility, the source of the SO2 NAAQS violations have been
eliminated. With ASARCO removed from the total SO2 emissions
in the East Helena area, available evidence indicates attainment will
be met by a wide margin. We agree with MDEQ that maintenance of the
SO2 NAAQS in the East Helena SO2 maintenance area
can be tracked through updates to the emissions inventory and operating
permit applications received for SO2 emitting sources for
verification of continued attainment.
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\77\ Seitz Memo at 1.
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C. EPA's Proposed Conclusion
Based on the EPA's analysis of the East Helena SO2
Redesignation Request and Maintenance Plan, provided in
[[Page 34102]]
sections III.A. and III.B., the EPA is proposing to determine that the
State has met all applicable requirements of CAA sections 107(d)(3)(E)
and 175A.
IV. Proposed Action
After review and analysis of Montana's submittal, the EPA is
proposing to redesignate the East Helena, Montana SO2 NAA to
attainment for the 1971 primary 24-hour and annual, and secondary 3-
hour SO2 NAAQS. The EPA is also proposing to approve the
State's plan for continued maintenance and attainment of the 1971
primary 24-hour and annual, and secondary 3-hour SO2 NAAQS
in East Helena, Montana for ten years following redesignation to
attainment.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely proposes to approve state law as meeting federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
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 the 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, the SIP is not proposed to apply on any Indian
reservation land or in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Particulate
matter, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 11, 2019.
Gregory Sopkin,
Regional Administrator, EPA Region 8.
[FR Doc. 2019-15111 Filed 7-16-19; 8:45 am]
BILLING CODE 6560-50-P
