Federal Implementation Plan for the Astaris-Idaho LLC Facility (formerly owned by FMC Corporation) in the Fort Hall PM-10 Nonattainment Area

AGENCY:

Environmental Protection Agency.

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA, Agency or we) is taking final action on a Federal Implementation Plan (FIP) to control particulate matter emissions from an elemental phosphorus facility owned by Astaris-Idaho LLC (formerly owned by FMC Corporation) in southeastern Idaho (Astaris facility). The Astaris facility is located on the Fort Hall Indian Reservation and in an area known as the Fort Hall PM-10 nonattainment area. The Fort Hall PM-10 nonattainment area is not in attainment with the national ambient air quality standards (NAAQS) for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM-10). The purpose of the FIP is to impose emission limits and work practice requirements that constitute reasonably available control technology (RACT) for particulate matter and that will, in light of this area's longstanding nonattainment problem, ensure expeditious progress towards improving air quality and attaining the PM-10 standards in order to protect the public health.

DATES:

Effective September 22, 2000.

ADDRESSES:

Copies of all information supporting this action are available for public inspection and copying between 8:30 a.m. and 5:30 p.m. Eastern Standard Time at EPA's Central Docket Section, Office of Air and Radiation, Room 1500 (M-6102), 401 M Street, SW., Washington, DC 20460, and between 8:30 a.m. and 3:30 p.m. Pacific Standard Time at EPA Region 10, Office of Air Quality, 10th Floor, 1200 Sixth Avenue, Seattle, Washington 98101. A copy of the docket is also available for review at the Shoshone-Bannock Tribes, Office of Air Quality Program, Land Use Commission, Fort Hall Government Center, Agency and Bannock Roads, Fort Hall, Idaho 83203. A reasonable fee may be charged for copies.

FOR FURTHER INFORMATION CONTACT:

Steven K. Body, EPA, Office of Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington, 98101, (206) 553-0782.

SUPPLEMENTARY INFORMATION:

The contents of today's preamble are listed in the following outline:

I. General Information

A. How Can I Get Additional Information or Copies of Support Documents?

B. Who Does This FIP Apply To?

II. Background of the Final Rule

III. Summary of the Final Rule

IV. Major Issues Raised by Commenters

A. Trust Responsibility and Consultation

B. Consideration of Information Received Outside of the Public Comment Period

C. Scope of the FIP

D. RCRA Consent Decree

E. Reliability of Source Test Data Submitted by Astaris-Idaho

F. Emission Limits for Sources at RACT

G. Emission Limits for Calciners

H. Emission Limits for Calciner Cooler Vents

I. Emission Limits for Furnace Building

J. Emission Limits for Excess CO Burner

K. Opacity Limits

L. Excess Emissions

M. Monitoring, Recordkeeping, and Reporting

N. PM-10 Precursors

O. Implementation and Enforcement of the FIP

P. Transportation Conformity

V. Other Changes From the January 2000 Supplemental Proposal

A. Codification

B. Definitions

C. Emission Limits

D. New and Modified Sources

E. Monitoring, Recordkeeping, and Reporting

VI. Effectiveness of the Control Strategy

VII. Administrative Requirements

A. Executive Order 12866

B. Regulatory Flexibility Act (RFA)

C. Unfunded Mandates Reform Act (UMRA)

D. Paperwork Reduction Act

E. Executive Order 13045: Protection of Children From Environmental

——Health Risks and Safety Risks

F. Executive Order 13132: Federalism

G. Executive Order 13084: Consultation and Coordination With Indian Tribal Governments

H. National Technology Transfer and Advancement Act of 1995 (NTTAA)

I. Submission to Congress and the Comptroller General

J. Petitions for Judicial Review

I. General Information

A. How Can I Get Additional Information or Copies of Support Documents?

1. Electronically. You may obtain electronic copies of this document, the February 12, 1999, FIP proposal, and the January 27, 2000 supplemental proposal from the internet at the following address: http://www.epa.gov/fedrgstr/.

2. In person or by phone. If you have any questions or need additional information about this action, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. In addition, the official record for this document, which is called the “docket,” has been established under docket control number ID 24-7004. The docket is available for public inspection and copying as described above in the ADDRESSES section.

B. Who Does This FIP Apply To?

This regulation applies to the owner(s) or operator(s) of the elemental phosphorous facility located on the Fort Hall Indian Reservation in Idaho adjacent to Highway 30 and the State-Reservation boundary. The facility was owned by FMC Corporation until April 17, 2000. On that day, ownership and operation of the facility was transferred to Astaris-Idaho LLC (Astaris-Idaho). Astaris-Idaho is a subsidiary of Astaris LLC, a joint venture between the FMC Corporation and Solutia, Inc. A copy of the agreement between FMC Corporation and Astaris-Idaho documenting the transfer is in the docket. This regulation will also apply to any new owner or operator of the Astaris-Idaho facility in the event of a later change in ownership. All references in this notice and in the regulation to the facility will be to the “Astaris-Idaho facility.”

II. Background of the Final Rule

Astaris-Idaho produces elemental phosphorus at its facility located on the Fort Hall Indian Reservation in southeastern Idaho near Pocatello. The Astaris-Idaho facility emits over 1400 tons of particulate matter into the atmosphere each year. Numerous exceedences of the PM-10 NAAQS, in effect as of July 1, 1987, have been and continue to be recorded at monitoring stations located in the Fort Hall PM-10 nonattainment area in the vicinity of the Astaris-Idaho facility (the Tribal monitors).

On February 12, 1999, we published a proposed rule containing air pollution emission limitations, work practice requirements, and related monitoring, recordkeeping, and reporting requirements designed to control PM-10 emissions from the Astaris-Idaho facility. 64 FR 7308 (February 12, 1999) (February 1999 FIP proposal). We held a public workshop on the Fort Hall Indian Reservation on March 4, 1999, to explain the February 1999 FIP proposal and to answer questions on the proposal. On March 18, 1999, we held a public hearing on the February 1999 FIP proposal on the Fort Hall Indian Reservation. Three members of the Shoshone-Bannock Tribes provided oral testimony at the hearing. A copy of the transcript from the public hearing is in the docket. EPA accepted written comments on the February 1999 FIP proposal until May 13, 1999, and received timely written comments from five commenters, including Astaris-Idaho and the Shoshone-Bannock Tribes (Tribes). Additional comments on the February 1999 FIP proposal were received after the close of the public comment period. Copies of all written comments on the February 1999 FIP proposal, both timely and late, are in the docket.

After carefully reviewing the public comments, including additional technical and source test information provided by Astaris-Idaho, EPA issued a supplemental proposal in which EPA revised certain limited aspects of the original FIP proposal. 65 FR 4466 (January 27, 2000) (January 2000 supplemental proposal). EPA held public hearings on the January 2000 supplemental proposal on February 29, 2000, in Pocatello, and on March 1, 2000, on the Fort Hall Indian Reservation. Thirty-two persons provided comments over the course of the two evening sessions. A copy of the transcript from the public hearings is located in the docket. EPA solicited written comments on the January 2000 supplemental proposal until the extended date of March 13, 2000. 65 FR 8679 (February 22, 2000) (notice of public hearing schedule and extension of public comment period). EPA received written comments from 13 commenters, including the Tribes and Astaris-Idaho. Copies of all written comments on the January 2000 supplemental proposal, both timely and late, are in the docket.

After carefully reviewing and considering all comments received on the February 1999 FIP proposal and the January 2000 supplemental proposal, EPA is issuing this final FIP.

III. Summary of the Final Rule

In issuing this FIP, EPA is exercising its discretionary authority under sections 301(a) and 301(d)(4) of the Clean Air Act (CAA or Act) to promulgate such FIP provisions as are necessary or appropriate to protect air quality within the Fort Hall Indian Reservation. EPA's ultimate goal is to ensure that all persons residing in, working in, and traveling through the Fort Hall PM-10 nonattainment area can breathe air that meets the PM-10 NAAQS standards. EPA has used the PM-10 planning requirements applicable to States with PM-10 nonattainment areas as a guide in determining what is necessary or appropriate for the protection of air quality in the Fort Hall PM-10 nonattainment area.

The Clean Air Act requires States to impose RACT on major stationary sources of PM-10 in moderate PM-10 nonattainment areas. See sections 172(c)(1) and 189(a)(1)(C) of the CAA. This FIP contains emission limits and work practice requirements that EPA believes represent RACT, along with related monitoring, recordkeeping, and reporting requirements, for PM-10 emissions from the Astaris-Idaho facility that emanate from the Fort Hall PM-10 nonattainment area. EPA believes that many sources at Astaris-Idaho currently employ RACT-level controls. For point sources that EPA believes currently employ RACT-level controls, the FIP imposes mass emissions limits based on current actual maximum daily emission rates from these point sources and opacity limits designed to keep PM-10 emissions at current levels. For area sources that EPA believes currently employ RACT-level controls, the FIP proposes opacity limits and work practice requirements designed to keep emissions at current levels.

The largest sources of PM-10 emissions at the Astaris-Idaho facility are the slag pit and related slag handling operations, the elevated secondary condenser and carbon monoxide (CO) ground flares, and the calciners. EPA believes that these sources, along with the phosphorous loading dock and the furnace building, do not currently employ RACT-level controls. For these sources, the FIP establishes emission limits and opacity requirements that will require process changes and additional control equipment to achieve substantial emission reductions, along with related monitoring, recordkeeping, and reporting requirements. The controls required to comply with the emission limits and work practice requirements in the FIP will be costly—an estimated $49 million dollars in capital expenditures, and annual costs for monitoring, work practice requirements, recordkeeping, and reporting of up to $202,000. EPA nonetheless believes the controls needed to comply with the requirements of this FIP, many of which have already been implemented, are both technologically and economically feasible. In developing the FIP, EPA has carefully evaluated alternative control technologies for each source at Astaris-Idaho, including the incremental emission reductions and estimated cost of installing, operating, and maintaining these alternative control technologies. In addition, in connection with the settlement of alleged violations of the Resource Conservation and Recovery Act (RCRA) at the Astaris-Idaho facility, FMC Corporation has entered into a consent agreement with the United States (RCRA Consent Decree) in which FMC has agreed to expend more than $64 million in capital costs to implement 13 PM-10 reduction projects at the facility. Five of these projects include the controls that EPA believes are necessary to comply with the proposed FIP. EPA believes that the remaining eight projects will better enable Astaris-Idaho to comply with the requirements of the proposed FIP. The company's commitment to install and operate the 13 PM-10 reduction projects for five years as part of the RCRA settlement is persuasive evidence that the control technology identified in this FIP is both technologically and economically feasible.

EPA believes that emission reductions that will be achieved by this FIP are necessary in order to ensure that PM-10 levels in the Fort Hall PM-10 nonattainment area do not endanger public health, and that emissions reductions will be achieved on a time frame that will contribute to attainment of the PM-10 NAAQS as expeditiously as practicable. To achieve these goals, EPA believes that PM-10 emissions from the Astaris-Idaho facility must be reduced by approximately 65%, based on measured air quality and the levels of the PM-10 standards. EPA anticipates that the emission limitations and work practice requirements in this proposed FIP, when considered together, will result in an overall reduction in PM-10 emissions of almost 80%.

To further these objectives, EPA is proposing a rigorous compliance schedule. For sources that EPA believes currently employ RACT-level controls, as well as for the phosphorous loading dock, compliance with the applicable emission limits and work practice requirements is required 60 days after the effective date of the FIP. The emission limits and related control requirements for slag handling, the calciner scrubbers, and the secondary condenser flare and CO ground flare will be in place and in effect on November 1, 2000, December 1, 2000, and January 1, 2001, respectively. By January 1, 2001, emissions from the Astaris-Idaho facility are expected to be reduced by almost 80%. The last requirements of the FIP, to control fugitive emissions from the furnace building, come into effect on April 1, 2002. Because most of the emission reductions at the Astaris-Idaho facility will occur by January 1, 2001, EPA does not expect particulate values above the level of the PM-10 NAAQS to be recorded on the Tribal monitors after that date.

IV. Major Issues Raised by Commenters

The following is a summary of the major issues raised in comments on the February 1999 FIP proposal (64 FR 7308 (February 12, 1999)), as well as the January 2000 supplemental proposal (65 FR 4466 (January 27, 2000)), along with a summary of EPA's responses to those issues. A separate document containing responses to all comments on the two proposals (Response to Comments) is in the docket.

A. Trust Responsibility and Consultation

The Tribes and several individual tribal members commented that EPA has a trust responsibility to the Shoshone-Bannock Tribes to fully consider tribal interests and protect tribal interests in carrying out its responsibilities under the Clean Air Act on Tribal lands, which includes a responsibility to consult with and fully involve the Tribes in decisions affecting the Tribes and their resources. These commenters assert that, in issuing the January 2000 supplemental proposal, EPA failed to adequately consult on a government-to-government basis with the Tribes prior to changing several requirements in the 1999 FIP proposal and failed to meet its trust responsibility toward the Tribes.

EPA acknowledges that the federal government has a trust responsibility to federally-recognized tribes, including the Shoshone-Bannock Tribes. EPA has recognized this responsibility throughout the development of the FIP and believes its actions have been consistent with its responsibility to consult with the Tribes on a government-to-government basis. EPA offered the Tribes an opportunity to provide their views and concerns before it made decisions, made a number of offers to meet with the Tribal government, and fully considered the issues raised by the Tribes prior to issuing the original and supplemental proposals, as well as this final rule.

As described in more detail in the Response to Comments, the Tribes were invited to participate in all aspects of the FIP development process that led up to and followed the February 1999 proposal. The Tribes were invited to all meetings with Astaris-Idaho to discuss Astaris-Idaho's comments on the February 1999 FIP proposal, and representatives of the Tribes participated directly in all but one of those meetings. The Tribes were provided with the technical information and proposals submitted by Astaris-Idaho to EPA, and offered opportunities to give their views to EPA on that information and raise any concerns. Staff from the Tribes have had numerous telephone conferences with EPA, and met separately with EPA to discuss the technical issues arising from both the February 1999 FIP proposal and the January 2000 supplemental proposal. The Tribes were asked to comment on preliminary drafts of the February 1999 FIP proposal and the January 2000 supplemental proposal, and the Tribes provided their views and perspectives in writing as well as orally on those drafts. The Tribes' views and perspectives were considered by EPA prior to making decisions on the proposals and on this final rule. EPA has continued to consult with the Tribes since publication of the January 2000 supplemental proposal. EPA met with Tribal air quality staff and legal staff on several occasions to discuss the Tribes' comments on and concerns with the January 2000 supplemental proposal and sought their input on changes to be made in the final FIP. The Tribes' comments and involvement throughout this entire rulemaking process were welcome and valuable. This summary clearly documents that EPA has made a number of diligent, continuing efforts to consult with the Tribes throughout the process before making decisions on the numerous regulatory requirements established in this FIP.

The FIP that EPA is publishing today for the Astaris-Idaho facility has been designed to meet the requirements of the Clean Air Act, and to protect the members and natural resources of the Tribes. The limits that have been placed on facility emissions through a number of specific regulatory controls are expected to curb air pollution sufficiently so that air quality in the region attains the PM-10 NAAQS, national standards which EPA has established to protect human health and the environment. The requirements in the FIP also establish additional requirements that are necessary or appropriate to protect human and environmental health, in accordance with EPA's authorities under the CAA. The FIP published today establishes strict, federally enforceable requirements to control and monitor PM-10 emissions. EPA expects that these requirements will provide a verifiable means of ensuring that the facility complies with the federal regulations and is operated in a manner that protects the health and welfare of the Tribes, its members, and its resources.

EPA believes that its actions to include the Tribes in the FIP development process and to consult with and consider the interests of the Tribes prior to making decisions have been consistent with its trust responsibility to the Tribes. See Nance v. EPA, 645 F.2d 701, 710-11 (9th Cir. 1981), cert. denied, 454 U.S. 1081 (1981). By promulgating the FIP while operating within a proactive government-to-government relationship with the Tribes, EPA has been able to fully consider the views of the Tribes. Thus, EPA is satisfied that it has consulted with the Tribes consistent with its trust responsibility to the Tribes while fulfilling its duties under the CAA.

B. Consideration of Information Received Outside of the Public Comment Period

The Tribes and several other commenters objected to EPA's consideration of information submitted to EPA by Astaris-Idaho after the close of the public comment period on the February 1999 FIP proposal. EPA did receive information from Astaris-Idaho after the close of the public comment period on the February 1999 FIP proposal. However, the comment materials submitted by Astaris-Idaho contained substantively relevant information disputing the technical adequacy of certain aspects of the February 1999 FIP proposal. Section 553(c) of the Administrative Procedures Act (APA) states that administrative agencies “shall give interested persons” an opportunity to comment on proposed rulemakings. That section further states that final rulemaking action may occur only “after consideration of the relevant matter presented.” In EPA's view, the information presented by Astaris-Idaho constitutes “relevant matter” which, pursuant to the APA, is required to be considered by the Agency. There is nothing in the APA that would preclude EPA from considering information received after the close of the public comment period. In addition, EPA has a long-standing, historical policy of accepting and considering all written comments submitted during rulemakings, even those submitted after the close of the public comment period. Congress effectively adopted this policy when it included detailed public record requirements for certain rulemakings under subsection 307(d) of the Clean Air Act. This action is not a rulemaking under subsection 307(d), since this FIP is being promulgated subject to requirements imposed under subsections 301(a) and 301(d) of the Act. However, the process being followed in this rulemaking is substantially similar to that followed for rulemakings under subsection 307(d) of the Act. In litigation challenging EPA's rulemaking process, courts have upheld the Agency's practice of considering and including in the public record or docket for final rulemakings documents received after the close of the comment period that are materially relevant. See Air Pollution Control District of Jefferson County, Kentucky v. United States Environmental Protection Agency, 739 F.2d 1071, 1079-1080 (6th Cir. 1984); Sierra Club v. Costle, 657 F.2d 298, 397-98 (D.C. Cir. 1981). In fact, EPA failure to consider information of the type submitted by Astaris-Idaho would be a violation of the APA and could significantly delay promulgation of the FIP. If the FIP were challenged on grounds that information of central relevance to the rulemaking had not been considered by EPA, a court, upon such a determination, would likely remand the FIP to EPA for further consideration. However, given that EPA has made the information itself, as well as the adjustments it has proposed to make to the FIP in light of the additional data, fully available for public review through notice and comment, neither the commenters specifically nor the public in general were denied an opportunity for meaningful public participation. Indeed, EPA also received comments after the close of the public comment period on both the February 1999 FIP proposal and the January 2000 supplemental proposal from the Tribes and members of the public. Consistent with the APA requirements and Agency policy, EPA has considered and responded, without exception, to all comments received during this FIP rulemaking, and, moreover, has put all the comments into the final rulemaking docket, including all those that were received after the close of the several public comment periods.

C. Scope of the FIP

The Tribes commented that the focus of the FIP is too narrow in two respects. First, the Tribes contend that the FIP is too narrow in its geographic coverage in that it only applies to the Astaris-Idaho facility and does not address the entire Fort Hall PM-10 nonattainment area. In this regard, the Tribes point to a resolution of the Fort Hall Business Council which requested that the FIP cover the entire nonattainment area. A major concern of the Tribes is that a major source of air pollution could move into the Fort Hall PM-10 nonattainment area without adequate controls and cause or contribute to violations of the PM-10 NAAQS. Second, the Tribes contend that the FIP does not contain all of the elements normally associated with a State implementation plan (SIP) under Title I of the Clean Air Act, such as reasonable further progress, an emission inventory, identification and quantification, permits for new and modified major stationary sources, other measures such as enforceable emission limits, the elements of section 110(a)(2) of the Act, and contingency measures. The Tribes contend that the FIP should contain all of the elements that a State must include in a moderate PM-10 nonattainment SIP.

As discussed above in section III, in promulgating this FIP, EPA is exercising its discretionary authority under sections 301(a) and 301(d)(4) of the Clean Air Act and 40 CFR 49.11(a) to promulgate such FIP provisions as are necessary or appropriate to protect air quality within the Fort Hall Indian Reservation. The Title I planning requirements of the Clean Air Act applicable to States do not directly apply to EPA in promulgating a Federal Implementation Plan in Indian Country although, as stated in the FIP proposal, EPA used the planning requirements applicable to States with PM-10 nonattainment areas as a guide in developing this FIP. See 64 FR at 7313.

Because of the serious PM-10 nonattainment problem that exists in the Fort Hall PM-10 nonattainment area, EPA believes it is appropriate to focus this FIP on the sources that cause or contribute to the air quality problem in the area and the elements applicable to States with PM-10 nonattainment areas that will address the PM-10 air quality problem as quickly as possible. As stated in the FIP proposal, EPA believes that the primary cause of the PM-10 problem in the Fort Hall PM-10 nonattainment area is primary PM-10 emissions from the Astaris-Idaho facility. 64 FR at 7309, 7321-7323. There are no other major stationary sources in the nonattainment area and the five other minor stationary sources in the nonattainment area collectively account for less than 1% of PM-10 emissions from stationary sources in the nonattainment area, with Astaris-Idaho emitting more than 99% of all such emissions. Although area source emissions account for approximately 43% of all PM-10 emissions in the nonattainment area, these area source emissions are spread out over the entire nonattainment area and EPA believes these emissions have an insignificant impact on the PM-10 violations that have been recorded. The Source Apportionment Study, which is discussed in the January 2000 supplemental proposal and is included in the docket, supports the conclusion that the PM-10 exceedences are local in nature and points conclusively to Astaris-Idaho as the source of the exceedences on the Tribal monitors. 65 FR at 4481-4482.

EPA did receive a copy of a resolution enacted by the Fort Hall Business Council, the governing body of the Shoshone-Bannock Tribes, which acknowledged EPA's efforts in the development of a FIP proposal. A careful reading of the resolution indicates that the Tribes were requesting that EPA promulgate a FIP regulating PM-10 emissions for all sources in the PM-10 nonattainment area and not just for the Astaris-Idaho facility. EPA had not understood this was the case initially because the resolution also expresses support for the draft FIP that EPA had been developing in coordination with the Tribes which covered only the Astaris-Idaho facility. In addition, the resolution was received by EPA just shortly before the FIP proposal was signed by Administrator Browner.

EPA now understands that the Tribes desire is for EPA, and not the Tribes, to take the initial lead in developing restrictions on PM-10 emissions from other sources within the Fort Hall PM-10 nonattainment area, and that the Tribes intend to take the lead in promulgating an implementation plan for the remainder of the Fort Hall Indian Reservation. EPA does not believe, however, that promulgation of final PM-10 control requirements for the Astaris-Idaho facility, the major if not sole contributor to the PM-10 violations that have been recorded on the Reservation, should be delayed while EPA considers whether imposition of requirements for PM-10 emissions on other sources of PM-10 within the nonattainment area are necessary or appropriate to safeguard public health and the environment. In exercising its discretionary authority under section 301(a) and 301(d)(4) of the Clean Air Act and 40 CFR 49.11(a) to promulgate such FIP provisions as are necessary or appropriate to protect air quality within Indian country, EPA has stated that it will carry out this authority in a prioritized way, beginning with the facilities that pose the greatest threat to public health and the environment. 64 FR 8247, 8255 (February 12, 1999). Accordingly, EPA intends to go forward with this FIP for the Astaris-Idaho facility and, as it has stated throughout this rulemaking process, will address particulate emissions from other sources in the Fort Hall PM-10 nonattainment area in a subsequent rulemaking. EPA believes this approach is the best way to address the Tribes' and the public's concern that the Astaris-Idaho facility be subject to limits on its particulate emissions as soon as possible.

With respect to the concern that this FIP does not contain all of the elements a State must address in a PM-10 nonattainment SIP, EPA again notes that, in promulgating this FIP, EPA is exercising its discretionary authority under sections 301(a) and 301(d)(4) of the Clean Air Act and 40 CFR 49.11(a) to promulgate such FIP provisions as are necessary or appropriate to protect air quality within the Fort Hall Indian Reservation. EPA focused the efforts of this FIP rulemaking on the elements that would bring the area into attainment with the PM-10 NAAQS as expeditiously as possible: imposing RACT on Astaris-Idaho and demonstrating that the Fort Hall PM-10 nonattainment area will attain the PM-10 standard once these RACT-level control requirements are in place at the Astaris-Idaho facility. Again, as stated in its proposal, EPA will address the other PM-10 planning elements that are applicable to States with moderate PM-10 nonattainment areas as necessary or appropriate in future rulemaking proceedings. 64 FR at 7342.

It should be noted, however, that although the focus of this FIP is on implementation of RACT and demonstrating attainment, many of the specific planning elements usually required of States in PM-10 nonattainment SIPs are in fact addressed by this FIP. For example, EPA believes that the compliance dates for the control measures promulgated in this FIP are consistent with the quantitative milestone reporting requirements. Similarly, implementation of the control measures in accordance with the compliance schedule will result in annual incremental reductions that represent reasonable further progress, as required by sections 172(c)(2) and 189(c)(1) of the Act. The FIP is based on and does include a comprehensive, accurate, and current inventory of reasonable worst case PM-10 emissions from the Astaris-Idaho facility. EPA revised the emission inventory in the January 2000 supplemental proposal and has made further refinements in this final action. As discussed in more detail below in section VI, EPA believes the revised emission inventory represents the best available information regarding PM-10 emissions from the Astaris-Idaho facility.

A major concern of the Tribes and other commenters relates to EPA's authority, resources, and plans for ensuring implementation and enforcement of the FIP. That issue is discussed in more detail in section IV.O. below. Another major concern of the Tribes and other commenters is the requirement of section 189(e) of the CAA that a State SIP impose RACT on major stationary sources of PM-10 precursors that contribute to exceedences of the PM-10 standards. That issue is discussed in more detail in section IV.N. below. With respect to contingency measures, the FIP does include a cushion of over-control: EPA has determined that a 65% reduction in daily PM-10 emissions is needed to attain the PM-10 standards and expects that, after full implementation of all control measures in the FIP, PM-10 emissions will be reduced by almost 80% on a 24-hour basis. In addition, EPA intends to propose in a separate Federal Register published in the fall of 2000 a lower emission limit for the facility's calciner cooler vents as a contingency measure. Once finalized as a contingency measure, the reduced emission limit for the calciner coolers would become effective when triggered without further administrative action.

It is true that the FIP does not include a permit program for the construction and operation of new and modified major stationary sources of PM-10 that meets the requirements of sections 172(b)(6) and 173 of the Clean Air Act and 40 CFR 51.165 (often referred to as a “Part D NSR program”) or a program for the review and permitting of minor sources, as is required of States in PM-10 nonattainment SIPs. See sections 110(a)(2) and 189(a). EPA is addressing the issue of new sources of PM-10 in several respects. First, EPA, in a rulemaking process separate from this FIP for Astaris-Idaho, is developing a national rule that would apply to the construction or modification of new minor sources in Indian Country, and also extend to Indian Country the requirements of Part D NSR for new major stationary sources and major modifications to major stationary sources in nonattainment areas. To the extent a new major source of PM-10 locates in the Fort Hall PM-10 nonattainment area before EPA revises 40 CFR part 52 to apply in Indian Country, it is EPA's intention to act as necessary or appropriate to promulgate a source-specific FIP setting out the permitting requirements for the new or modified source. EPA has taken this approach for a new major source that wanted to construct a new major facility on the reservation of the Salt River Pima-Maricopa Indian Community, which is located in a nonattainment area. 64 FR 65660 (November 23, 1999). Thus, EPA does not agree that a new major source could locate within the Fort Hall PM-10 nonattainment area without installing controls that would assure protection of the PM-10 NAAQS. Finally, as discussed in the January 2000 supplemental proposal, EPA has revised the FIP to better address new construction and modifications at the Astaris-Idaho facility. 65 FR at 4477. The FIP requires Astaris-Idaho to notify EPA and the Tribes at least 90 days prior to beginning construction of any new source of PM-10 or a modification to an existing source that would result in an increase of PM-10 emissions. After 90 days, Astaris-Idaho would be authorized to construct the new or modified source, but the source would be subject to an opacity limit of 10% and must be addressed in the facility's operation and maintenance plan, unless EPA established alternative or additional emission limitations or work practice requirements for the source through a revision to the FIP.

Please refer to the Response to Comments document for a more detailed discussion of the other PM-10 planning issues referenced earlier.

D. RCRA Consent Decree

The Tribes and several other commenters expressed concern that the control technologies relied on in the FIP were pre-selected by Astaris-Idaho as part of the RCRA Consent Decree before the FIP process was started and without consideration of comments by the Tribes and public. These commenters believe that EPA made a decision to take the projects selected by Astaris-Idaho in the RCRA process outside of the public comment process and transfer each one of them over to satisfy this RACT FIP. As a consequence of this, these commenters assert that EPA has proposed a FIP that does not adhere to the Clean Air Act requirements for nonattainment areas and that Astaris-Idaho has had too much control in determining the outcome of the FIP.

EPA has considered technical information and comments from Astaris-Idaho, as it has from all commenters, but, as discussed below, EPA does not agree that Astaris-Idaho is or has been in control of the outcome of the FIP, nor with the corollary implication that public comment, including comments from the Tribes, has been meaningless or unfairly prejudiced. Although the FIP now under consideration was not proposed in the Federal Register until February 1999, after the RCRA Consent Decree was signed by the United States and FMC in October 1998, the control strategy for the FIP has been under development and discussion with Astaris-Idaho, the Tribes, the local community, and EPA since the early 1990s. Environmental Quality Management, Inc. (EQM), a contractor with extensive knowledge of the phosphorus industry in general and experience with the Astaris-Idaho facility in particular, was hired in the mid-1990s to conduct an evaluation of alternative control technologies for each source at Astaris-Idaho that could be used as the basis for a determination of RACT. Based on EQM's work, EPA ultimately presented a workshop in Fort Hall and Pocatello in September 1997 in which EPA explained the basic control strategy for the FIP that EPA intended to propose. That presentation included a discussion of installation of hot pour pot handling to control emissions from slag handling, upgrades to the calciner scrubbers, controls on the calciner cooler vents, and the enclosure and control of the secondary condenser flare and CO ground flare. In the final RACT report issued by EQM in July 1998 (EQM RACT Report), hot pour pot handling was identified as the best control option for slag handling at Astaris-Idaho and spray towers were identified as the best control option for the calciner scrubbers at Astaris-Idaho. The EQM RACT Report stated that, with respect to the secondary condenser flare and CO ground flare, there were no options for control of P₂ O₅ emissions from CO gas flares in the phosphate industry. EQM RACT Report, p. 113. The report goes on to discuss the theoretical options for the control of these flares, including combustion of the CO gases in an enclosed device and control by a wet scrubber.

During settlement negotiations to resolve the RCRA violations at the Astaris-Idaho facility, Astaris-Idaho provided EPA and the Tribes with a document entitled “RACT Project Descriptions—Astaris-Idaho—15 October 1997.” That document included a proposal to install hot pour pot handling, to increase the performance of the scrubbing control system from 50-60% to 80-90%, and to direct all excess CO gas to an enclosed burner/combuster device with the off gas sent to a high efficiency scrubber. Astaris-Idaho's proposal also included ten other projects to reduce PM-10 emissions at Astaris-Idaho. Hot pour slag handling, upgrades to the calciner scrubbers, and control of the excess CO gas, however, were, and have always been, the three projects believed by EPA to be essential to bringing the Fort Hall PM-10 nonattainment area into attainment with the PM-10 NAAQS. Moreover, they represent RACT-level controls for those sources. Thus, the control equipment and project upgrades that are the basis of the FIP were in fact not pre-selected by Astaris-Idaho as part of the RCRA Consent Decree, but instead driven by EPA's preliminary determination of what represented RACT-level controls. Although it is true that Astaris-Idaho began to design and implement these controls before the FIP went out for public notice and comment, the Tribes and the public were aware of what EPA believed represented RACT-level controls at least since the public workshops in Fort Hall and Pocatello in September 1997. During the public comment period on the February 1999 FIP proposal and the January 2000 supplemental proposal, no commenter has suggested any better technology that could achieve higher emission reductions for slag handling, the calciner scrubbers, or the flares. The Tribes have suggested additional controls for the furnace building (i.e., enclosing the building) which, as discussed below in section IV.I., EPA believes goes far beyond RACT in terms of cost effectiveness. The Tribes and the members of the public have commented that EPA should consider additional controls on the calciner cooler vents in light of the recent information showing that PM-10 emissions from this source are much higher than originally thought. As discussed in section IV.H. below, EPA intends to propose in the fall a reduced emission limit for the calciner cooler vents based on the installation of additional controls that would serve as a contingency measure.

In short, the RCRA Consent Decree and the FIP are two separate mechanisms by which EPA is bringing about PM-10 emission reductions in the Fort Hall PM-10 nonattainment area. The RCRA Consent Decree was designed to address past violations of the RCRA requirements, whereas the FIP is designed to implement RACT and ensure ultimate attainment of the PM-10 NAAQS. As part of the RCRA Consent Decree, Astaris-Idaho did commit to implement 13 PM-10 emission reduction projects ahead of the schedule that would have otherwise been required in the FIP, and Astaris-Idaho received some reduction in the RCRA penalty for this agreement. This agreement was done in accordance with EPA's policies for Supplemental Environmental Projects, and is a common feature in settlements in these types of enforcement cases. See “Supplemental Environmental Projects Policy,” 63 FR 24976 (May 5, 1998). Although there is some overlap in the requirements of the RCRA Consent Decree and the requirements of the FIP, in each case EPA issued each document in accordance with the governing environmental statute, regulations, and policies of the Agency. As is evident from even a quick review of the RCRA Consent Decree and the FIP, the FIP is separate from and far more extensive and stringent than the RCRA Consent Decree with respect to PM-10 emission reduction requirements.

E. Reliability of Source Test Data Submitted by Astaris-Idaho

The Tribes, the State of Idaho, and other commenters questioned EPA's reliance on source test data submitted by Astaris-Idaho after the February 1999 FIP proposal. Because this information was based on source tests conducted by Astaris-Idaho that were not observed by EPA or the Tribes, these commenters do not believe EPA should have revised the emission inventory or the proposed emission limits to allow higher emission levels from Astaris-Idaho based on this source test data. The Tribes, the State of Idaho, and many citizens also commented that EPA should not exclude condensible PM-10 from the emission limits because the source tests conducted by Astaris-Idaho did, in fact, measure condensible PM-10 from these sources.

Astaris-Idaho did submit more recent source test data it collected in response to the February 1999 FIP proposal. EPA has reviewed the tests and believes, with some exceptions related to condensible particulate matter reported from sources at ambient temperatures, that the recent test data are more representative of current conditions at the Astaris-Idaho facility than the previously available information. With respect to many sources, the recent source test data show that filterable PM-10 emissions from these sources are less than shown by previous source tests and, based on its review of the results, EPA has reduced the emission limits on filterable PM-10 for these sources. For four other sources (the west shale baghouse, the calciner scrubbers, the calciner cooler vents, and the excess CO burner), EPA has increased the emission limits based on its review of information from Astaris-Idaho showing that emissions from these sources are higher than previously shown. EPA has explained these changes in great detail in the January 2000 supplemental proposal, elsewhere in this notice, and in the Response to Comments. Neither the Tribes nor any other commenter has provided information to show that the recent source test data provided by Astaris-Idaho do not accurately reflect current reasonable worst-case emissions of filterable PM-10 at the Astaris-Idaho facility. Issues relating to the reliability of the condensible PM-10 emission data is discussed in section IV.F below.

It is important to remember that, at the time of the February 1999 FIP proposal, EPA believed that Astaris-Idaho emitted 6920 pounds of PM-10 per day and that emissions would be reduced to approximately 2164 pounds per day, a reduction of 69%. EPA now believes that Astaris-Idaho emits more than 15,000 pounds of PM-10 per day under reasonable worst case conditions, but anticipates that the FIP will reduce PM-10 emissions from Astaris-Idaho to approximately 3200 pounds per day, a reduction of almost 80%. Thus, although emissions after the FIP will be higher under the final rule (as compared to the February 1999 FIP proposal), the improvement in air quality, when compared to existing emissions, should be greater than expected under the February 1999 FIP proposal.

F. Emission Limits for Sources at RACT

As stated in the preamble to the February 1999 FIP proposal, we believe that many of the sources at Astaris-Idaho currently employ RACT-level controls. See 64 FR at 7311 and 7325. These include the following point sources: source 5a (east shale baghouse); source 6a (middle shale baghouse); source 7a (west shale baghouse); source 10 (calciner cooler vents); sources 12a and 12b (north and south nodule discharge baghouses); source 13 (nodule reclaim baghouse); source 15a and 15b (east and west nodule discharge baghouses); source 16a (nodule stockpile baghouse) ; 17a (dust silo baghouse); sources 18a and 18b (furnace building east and west baghouses); source 18d, 18e, 18f, and 18g (furnace building Medusa-Andersen stacks); and source 20a (coke handling baghouse). For these point sources, EPA intended to propose mass emission limits designed to keep PM-10 emissions at current levels and not to require additional controls in order to meet the FIP limits. See 64 FR at 7311 and 7325.

Based on information provided by Astaris-Idaho during the public comment period, EPA determined that the mass emission limits proposed for the above-identified sources were not consistent with current emission levels. The proposed mass emission limits were derived from the 1996 emission inventory, which included only filterable PM-10 emissions using EPA Method 5 and did not consider condensible PM-10 emissions. In the February 1999 FIP proposal, however, we proposed EPA Methods 201/201A and 202 as the reference test methods for determining compliance with the proposed mass emission limits. Method 201/201A measures all filterable PM-10 and Method 202 measures condensible PM-10. Thus, the proposed reference test method required the inclusion of more particulate matter (condensible PM-10) than originally considered when developing the 1996 emission inventory and establishing the proposed emission limits. To address this issue, EPA proposed in the January 2000 supplemental proposal that, for these sources, condensible emissions would not be included in the emission limit and that Method 202 would be required for informational purposes only (that is, not as part of the reference test method).

It is true that the source tests conducted by Astaris-Idaho show the presence of condensible PM-10 emissions from these sources. However, this is a result that would not normally be expected. Except for the calciner cooler vents, the calciners, and the excess CO burner, the PM-10 sources at Astaris-Idaho have stack temperatures at, or near, ambient temperature. Therefore, condensible particulate should already have condensed, that is, changed from a gaseous to a particulate state, and, therefore, should not be measurable by the Method 202 source tests. Given that these sources are not high temperature sources, it is likely that the particulate measured by Method 202 is an artifact of the sampling method, a sampling error, or a contaminant in the sample. To determine if the condensible PM-10 measured at these sources represents real emissions, the material collected by Method 202 in the source tests would need to be chemically analyzed to determine its composition and source. Until the condensible material is chemically analyzed or additional source tests for condensible particulate emissions are conducted for sources at Astaris-Idaho at ambient temperatures, EPA believes it would be inadvisable to consider the condensible particulate matter in establishing emission limits for these sources. To do so could result in an emission limit far higher than appropriate to ensure PM-10 emissions remain at current levels. Requiring Astaris-Idaho to conduct source tests with Method 202 for informational purposes will allow EPA to further analyze whether the condensible particulate matter measured in the source tests is an artifact or is being actually measured, and determine whether additional controls may be necessary. 65 FR at 4468-4469. At the same time, because the source test data submitted by Astaris-Idaho showed that filterable PM-10 emissions for 13 of these sources (as well as for the phos dock scrubber) was lower than previously realized, EPA proposed to reduce the emission limits for these 14 sources to ensure emissions do not increase above existing levels. 65 FR at 4469.

These commenters also stated that EPA should conduct another RACT analysis for these sources because the previous RACT analysis did not consider condensible PM-10 emissions from these sources. EPA disagrees that the potential presence of condensible emissions from these sources would change the RACT analysis. First, as discussed above, EPA believes it is very unlikely that condensible PM-10 is in fact being emitted from these sources because the emissions are already at or near ambient temperatures. EPA has advised States that condensible PM-10 emissions need to be controlled as part of implementing RACT-level controls only where condensible PM-10 is determined to be a significant portion of the emissions from an existing stationary source. See 57 FR 13498, 13543 (April 16, 1992). Even if the condensible emissions measured from these sources are assumed to represent actual PM-10 emissions, among other things, the incremental cost to control condensible PM-10 from the material handling sources in this category (the sources controlled by baghouses) would be very high, well in excess of what EPA would consider to be reasonably available (i.e., RACT) because traditional methods of control such as baghouses are not effective for controlling condensible particulate matter and any condensible fractions collected by other available control devices would be extremely small. Also, to capture the condensible fraction, it would have to be condensed from vapor to particulate using techniques such as gas cooling, capillary condensation, or carbon adsorption. However, no abatement systems of this type are known to be used for controlling particulate matter from material handling sources or are defined as RACT for material handling sources in any industry. The furnace building Medusa-Andersen scrubbers and the phos dock scrubber are controlled by scrubbing systems that do control condensible PM-10 if in fact condensible PM-10 is being emitted from these sources.

Astaris-Idaho commented that the source test data provided by Astaris-Idaho, which EPA relied on to reduce the emission limits for the 14 sources discussed above, did not reflect reasonable worst case emissions. Moreover, Astaris-Idaho argued, EPA erred in relying on the average of the three source test runs, rather than the highest source test run for each of these sources. Astaris-Idaho therefore requested that EPA increase the emission limit for several of these sources. EPA notes that Astaris-Idaho submitted the average of the three runs, not the individual source test runs, with its comments on the February 1999 FIP proposal. Moreover, it submitted the source test data to EPA as being representative of emissions from these sources and without qualification. In any event, a source test using Method 201/201A consists of the average of three individual runs, not the results of an individual run or even the highest run. The fact that an individual source test run exceeds the emission limit would not of itself represent a violation of the emission limit.

In proposing the revised emission limits for these sources in the January 2000 supplemental proposal, EPA took the average of the three test runs and added a small margin to allow for normal variability in source test results. Because the data set on which EPA was relying then was limited, in this final action EPA has increased the limit slightly for six sources: middle shale baghouse (source 6a) from 0.30 pounds per hour (lb/hr) to 0.50 lb/hr; west shale baghouse (source 7a) from 0.20 to 0.50 lb/hr; east nodule baghouse (source 15a) from 0.50 lb/hr to 0.60 lb/hr; nodule stockpile baghouse (source 16a) from 0.20 lb/hr to 0.30 lb/hr; furnace building-east baghouse (source 18a) from 0.75 lb/hr to 0.80 /hr; and furnace building-west baghouse (source 18b) from 0.75 lb/hr to 0.80 lb/hr. The increases range from 0.05 to 0.30 lb/hr. In contrast, EPA has lowered the emission limit for the west nodule baghouse (source 15b) from 0.50 lb/hr to 0.30 lb/hr because the highest test run was 0.248 lb/hr, with an average of 0.202 lb/hr. The net change in emissions from these sources is an increase of 0.60 lb/hr. EPA believes this is an insignificant increase from that proposed in the January 2000 supplemental proposal. However, the changes should provide Astaris-Idaho with some level of confidence that it will be able to operate these sources, which EPA believes currently employ RACT-level controls, without needing to install additional controls. These increases will provide a minimum cushion of 20% beyond the recorded source test results for each of these sources.

EPA has not increased the emission limits for the following other sources as Astaris-Idaho requested: the furnace building Medusa-Andersen scrubbers (sources 18d, 18e, 18f, and 18g) and the coke handling baghouse (source 20a). The emission limit of 1.70 lb/hr for the coke handling baghouse is more than 30% above the source test result for this source (the average of the three source test runs). In addition, in commenting on the February 1999 FIP proposal, Astaris-Idaho did not contest the numerical value of this limit, but instead only requested that the limit not apply to condensible PM-10 emissions. EPA has made that change. With respect to the Medusa-Andersen scrubber stacks on the furnace building, Astaris-Idaho submitted test data comprising a total of 12 source test runs on all four stacks, which are similar in design and operation and control similar sources. Only one of the 12 source test runs (stack 1—source 18d) was above the 2.0 lb/hr limit proposed by EPA. For the three other furnace scrubber stacks, the highest source test run for any of the stacks was 1.520 lb/hr, well below EPA's 2.0 lb/hr limit, and the average of the three runs for each of the these three furnace scrubber stacks was less than 1.0 lb/hr. EPA believes that the source test data provides sufficient evidence that Astaris-Idaho can comply with an emission limit of 2.0 lb/hr for each of the four furnace scrubber stacks. In this regard, EPA again notes that the source test run of 2.634 for stack 1 would not, of itself, represent a violation of the emission limit of 2.0 lb/hr, because a source test consists of three runs that are averaged for the purpose of determining compliance with the standard. The calciner cooler vents are discussed in section IV.H. below.

G. Emission Limits for Calciners

The February 1999 FIP proposal proposed a mass concentration limit for the calciner scrubbers of 0.005 grains per dry standard cubic foot (gr/dscf). During the public comment period on the February 1999 FIP proposal, Astaris-Idaho argued that the proposed emission limit was not achievable because the February 1999 FIP proposal underestimated existing emissions from the calciner scrubbers and underestimated the control efficiency of the existing control system. The result, according to Astaris-Idaho, was an emission limit that was not achievable by Astaris-Idaho with the installation of RACT-level controls. Astaris-Idaho also stated that the emission limit was inconsistent with the performance criteria for the calciner scrubbers agreed to by EPA and Astaris-Idaho in the RCRA Consent Decree. After reviewing the information presented by Astaris-Idaho, EPA agreed that existing emissions from the calciner scrubbers had been underestimated in the February 1999 FIP proposal. EPA concluded that a more accurate estimate of current reasonable worst case PM-10 emissions from the calciner scrubbers was 0.043 gr/dscf using Method 5 and Method 202. 65 FR at 4469-4471.

EPA further determined that enhancing the scrubber control system to achieve a control efficiency of at least 90% was reasonably available and, thus, constituted RACT-level controls. A 90% control efficiency would result in a decrease in emissions from the calciner scrubbers of approximately 50%. To effect this, EPA proposed an emission limit of 0.022 gr/dscf (with Method 5 and Method 202 as the reference test methods) for the calciner scrubbers. EPA also proposed to require that the pollution control equipment on the calciner scrubber stacks achieve at least a 90% control efficiency under all operating conditions to ensure that the modified scrubbing control system was being properly operated and maintained at all times. 65 FR at 4469-4471.

The Tribes, the State of Idaho, and members of the public expressed concern over EPA's proposal to increase the emission limit for the calciner scrubbers. These commenters believed that EPA had not adequately demonstrated that an emission limit of 0.022 gr/dscf (for both filterable and condensible PM-10) was the lowest emission limit that the calciner scrubbers are capable of meeting using control technology that is reasonably available in light of economic and technological considerations. Astaris-Idaho also commented that it could not demonstrate a 90% control efficiency for low inlet loadings during which PM-10 emissions at the outlet would be low. Astaris-Idaho therefore requested that EPA eliminate the control efficiency requirement or restrict the requirement to higher inlet loadings. To support its claims, Astaris-Idaho submitted additional information regarding source tests it has conducted with different pilot technologies in an attempt to reduce emissions from the calciner scrubbers. After reviewing these comments, as well as the additional source test data provided by Astaris-Idaho, EPA has determined that reasonably available control technology can, in light of technological and economic considerations, achieve emission limits for the calciner scrubbers lower than the limits proposed in the January 2000 supplemental proposal.

Astaris-Idaho's pilot studies of improvements to the calciner scrubbers utilized two different technologies: dry lime and water injection. The source test results for each technology are summarized in the docket. See Memorandum from Paul Boys to Julie Vergeront and Steve Body, “Technical Recommendation for the Astaris-Idaho LLC Calciner Scrubber,” dated June 29, 2000, Attachment 2. The emission test run results from trials with dry lime ranged from 0.0014 to 0.0145 gr/dscf for filterable PM-10 and from 0.0096 to 0.0317 gr/dscf for total PM-10. In addition to reducing PM-10 emissions, the dry lime has the added benefit of reducing sulfur dioxide emissions. When dry lime is injected at a rate of 900 to 1000 lb/hr, sulfur dioxide emissions were reduced by about 53%. Source test runs with water injection showed results ranging from 0.0019 to 0.0079 gr/dscf for filterable PM-10 emissions and from 0.0089 to 0.0262 gr/dscf for total PM-10 emissions. In February 1999, Astaris LLC conducted several tests while using cleaner water in the existing scrubber system. These tests demonstrated that the water quality in the scrubbing system has an influence on the emissions and that cleaner water can also reduce the PM-10 emissions to some extent.

The test data gathered to date for the calciner scrubbers show that a significant portion of the total PM-10 emissions is attributable to condensible PM-10. The total amounts of PM-10 emissions and the percentage that appears to represent condensible particulate emissions varies between data sets and has not been sufficiently characterized by chemical speciation to reliably explain what the results actually reveal and consequently what type of control strategy would be most effective in reducing those emissions. EPA suspects that a portion of the PM-10 that is reported as condensible particulate may well be an artifact of the test procedure due to absorption and reaction of gases and/or contamination of test trains during handling and cleanup. Therefore, EPA has decided that, rather than establishing a single emission limit for the total PM-10 emissions, it is more appropriate to establish one emission limit that applies to filterable and another emission limit that applies to total PM-10 emissions. This approach is best designed to assure that overall PM-10 emissions are reduced.

Based on the emissions data discussed above and other available information, EPA believes that the calciner scrubbers can achieve an emission limit of 0.0080 gr/dscf for filterable PM-10 and 0.0180 gr/dscf for total PM-10 using cleaner water in the calciner scrubbing system in conjunction with either water injection or dry lime technology. These values for emission limits provide a moderate margin above the average values from the trial data, are slightly higher than all but one of the individual test data points for dry lime injection, and slightly higher than all but two data points for water injection. EPA believes that Astaris-Idaho will be able to optimize a full-scale control system and thereby achieve even better results than they have shown in the trials. The emission limits allow Astaris-Idaho the flexibility to use either dry lime injection or water injection, in conjunction with improved secondary scrubber water quality (lower total dissolved solids), to achieve the limits, or any other technology of their choosing, so long as it achieves the final emission limits established in the FIP, and otherwise complies with the requirements of the Clean Air Act and EPA implementing regulations.

Astaris-Idaho requested that the emission limit for the calciner scrubbers be averaged over all eight calciner stacks. With a “bubble”, or averaging, approach, the source test results for each of the calciner scrubber stacks would be added together and then divided by the total number of calciner scrubber stacks, and the resulting average compared to the emission limit. Although “bubbling” among stacks would reduce the inherent variability of any single source test run, EPA is concerned that this approach could mask performance problems that might exist in any one of the four calciner scrubbers or the two calciners. To minimize this risk, use of a bubbling approach for all calciner scrubbing stacks would require that all eight stacks be tested simultaneously or within a short duration under the same operating conditions, a difficult task given the number of stacks involved. EPA nonetheless believes that some limited “bubbling” or averaging can be accommodated while still ensuring that each calciner scrubbing system is being operated at optimal conditions. Accordingly, EPA has established that the limit for the calciner scrubbers as the arithmetic average of source test results from the four individual calciner stacks from a single calciner. The individual source tests for these four stacks must be conducted simultaneously or at most within three hours of each other under the same operating conditions. This approach should reduce some of the variability in the test data results and yet provide a more representative indication of how each calciner is operating.

In reaching the determination that an emission limit of 0.008 gr/dscf for filterable and 0.018 gr/dscf for total PM-10 emissions represents RACT for the calciner scrubbers, EPA has re-evaluated the various control technologies for the calciner scrubbers considered by EPA as potential RACT in the February 1999 FIP proposal and the January 2000 supplemental proposal: steam injection with high energy wet scrubbers, spray tower with hydrosonic scrubbers, replacement of the existing scrubbing system with a baghouse, lime injection, and installation of waste evaporators. Water injection, coupled with Astaris-Idaho's existing primary scrubbers and John Zink hydrosonic scrubbers, is similar in theory to a spray tower followed by hydrosonic scrubbers and, consequently, would be expected to achieve comparable emission reductions. Although replacement of the existing scrubbing control system with a baghouse could potentially achieve a lower emission rate for filterable PM-10 than water injection or a spray tower, it is undesirable for several reasons. First, because polonium-210 (Po-210), a radioactive isotope released in significant quantities in the calciner emissions, would be captured in the baghouse dust and retained on the baghouse walls, hoppers, and bags, it creates potential health and safety risks for workers. 64 FR at 7332. These risks can be overcome, but doing so would add additional expense to the cost of the system. Second, baghouses are less effective for controlling condensible PM-10 emissions than other control methods unless the baghouse gas is cooled considerably. The existing test data shows that almost 50% of the total PM-10 from the calciner scrubbers consists of condensibles. Adding a cooling system to a baghouse in order to increase the capture and control of condensible PM-10 emissions would further add to the cost of the baghouse system. For these reasons, EPA continues to believe that replacement of the existing scrubbing system with a baghouse is not economically or technologically feasible and therefore does not represent RACT-level control for this source. The other control options considered by EPA are expected to achieve lower or similar emission reductions, often at a higher cost, than water injection or a spray tower. Therefore, EPA believes that modification of the existing calciner scrubbers by installation of a spray tower or through the similar process of water injection represents RACT-level control for this source. The source test data from the Astaris-Idaho pilot projects show that dry lime injection can achieve comparable emission reductions and would therefore also constitute RACT-level controls.

The Tribes, the State of Idaho, and several other commenters stated that the emission limit for the calciner scrubbers proposed in the FIP for Astaris-Idaho was less stringent than the emission limit for the calciners at a Monsanto facility in Soda Springs, Idaho, the only other operating elemental phosphorous facility in the United States. EPA disagrees. As an initial matter, there are important differences between the emission limit for the calciners at Astaris-Idaho's facility and the Monsanto facility that prevent a direct comparison between the emission limits. At Astaris-Idaho, the limit is a mass concentration limit (gr/dscf), along with a limit on the volume flow rate, and it applies only to the calciner stack emissions. The State of Idaho's permit limit for the Monsanto facility combines emissions from four calciner scrubber stacks and the calciner cooler stacks. Also, the permit limits emissions from the calcining process based on production rate using a mathematical equation: the higher the production rate, the higher the emission limitation, which is expressed in pounds per hour. In addition, the State limit for the Monsanto facility only applies to filterable particulates. There is no limit on condensible PM-10 emissions from the Monsanto facility, and EPA is not aware of any source test data available on condensible PM-10 emissions from the Monsanto facility. A review of the most recent source test results from the calciners at the Monsanto facility conducted during the 1998, however, shows that the emission limit established by EPA in the FIP for filterable PM-10 emissions from the calciner scrubbers at Astaris-Idaho will result in emissions that are lower than the current actual filterable PM-10 emissions from the calciner scrubbers at the Monsanto facility. The 1998 source tests showed that actual filterable emissions from the calciners at the Monsanto facility ranged from 0.006 to 0.017 gr/dscf based on Method 5 (filterable particulate only) for each calciner scrubber stack. Three of the four stacks had filterable particulate emission rates at, or above, 0.010 gr/dscf. Thus, only one of the calciner stacks at Monsanto had emissions lower than the emission limit of 0.008 gr/dscf that will now apply to the calciners at the Astaris-Idaho facility.

With respect to the control efficiency requirement, EPA agrees, based on further review of the information provided by Astaris-Idaho, that requiring Astaris-Idaho to demonstrate a control efficiency of 90% under low inlet loadings is not reasonable. After reviewing the available source test data, EPA believes that, after the improvements to the scrubbing system, the facility should be able to demonstrate a control efficiency of 90% at inlet loadings of 0.150 gr/dscf or above. With an emission limit of 0.0180 for all PM-10, when inlet PM-10 concentrations are at 0.180 gr/dscf or above, the control efficiency must be at least 90% in order to be in compliance with the 0.0180 gr/dscf limit for all PM-10. Thus, only when inlet loadings are at or above 0.150 gr/dscf but below 0.180 gr/dscf would the control efficiency requirement potentially be the limiting factor. Given the logistical difficulties associated with measuring inlet and outlet loadings at each of eight different stacks and the narrow range where the control efficiency requirement would be the limiting factor for emissions, EPA is requiring a one time performance test for this control efficiency requirement. EPA believes the other monitoring requirements for the calciner scrubbers, coupled with the grain loading standards, should be adequate to ensure ongoing compliance with the control efficiency requirement. EPA could also require additional source testing for the control efficiency requirement through Astaris-Idaho's Title V permit or under section 114 of the Clean Air Act.

The Tribes commented that during source testing of the calciners, Tribal Air Quality Staff observed fugitive emissions that were not captured by the exhaust hoods, especially during windy conditions, and asked EPA to assess this problem in the FIP. EPA staff also recently observed such fugitive emissions from the calciners during source testing in connection with the radionuclides NESHAP. EPA has therefore added to Tables 1 and 2, a source 9b, “calciner traveling grate—fugitive emissions,” and has redesignated the calciner scrubbers as source 9a. Consistent with the approach for establishing emission limits for fugitive emissions escaping from other control devices, EPA has established an opacity limit for this source of 10%, with a corrective action level of 5%. EPA will also work with the Tribes and Astaris-Idaho to develop a method for estimating emissions from this source through source testing or other means.

H. Emission Limits for Calciner Cooler Vents

Emissions from the calciner cooler vents are not currently controlled by a baghouse, scrubber, or other add-on control technology. In the February 1999 FIP proposal, EPA stated that no additional control constituted RACT-level controls for the calciner cooler vents. We therefore proposed an emission limit for this source that we believed would keep emissions from the calciner cooler vents at current levels, 64 FR at 7324, which would essentially operate as a limit on the production of nodules. In response to the February 1999 FIP proposal, Astaris-Idaho submitted source test data showing emissions from the calciner cooler vents were much higher than previously understood, both because the previous emission rate had included only filterable PM-10 and because the assumed ratio of PM-10 to total suspended particulate fraction had been underestimated. 65 FR at 4471-4472. Because the gas stream in the calciner coolers is above ambient temperatures, some condensible PM-10 emissions would be expected and in fact were documented through source testing. Based on the more recent source test data, filterable PM-10 emissions are almost 50% greater than in the emission inventory relied on in the February 1999 FIP proposal. When condensible PM-10 emissions are included, the emission estimate is again increased by approximately 100%. In the January 2000 supplemental proposal, EPA proposed to increase the emission limit for the calciner cooler vents from 2.0 lbs/hr for each stack (filterable and condensible PM-10) to 4.4 lbs/hr for each stack (for filterable PM-10 only). EPA did not revisit the RACT analysis for this source.

In commenting on the January 2000 supplemental proposal, the Tribes, the State, and members of the public expressed strong disagreement with EPA's proposal to increase the emission limit for this source and to exclude consideration of condensible emissions in establishing the emission limit without first conducting another RACT analysis in light of the revised emission information from Astaris-Idaho. These commenters believe that the significant increase in the emissions estimate for this source calls for a lower emission limit for this source, rather than a higher emission limit, as proposed by EPA. By contrast, Astaris-Idaho commented that the emission limit should be further increased to 6.0 pounds/hour (lb/hr) because one run from the source tests on one of the four calciner cooler vents exceeded 4.4 lb/hr.

EPA is rejecting Astaris-Idaho's request that the emission limit for the calciner cooler vents be further increased to 6.0 lb/hr. In its earlier comments on the February 1999 FIP proposal, Astaris-Idaho requested a limit of 4.0 lb/hr for the calciner cooler vents. EPA proposed a limit of 4.4 lb/hr in the January 2000 supplemental proposal to provide for a margin of error. Astaris-Idaho has not submitted any additional test data to justify a further increase, nor has it explained in any detail why it now believes it needs the additional increase in the emission limit. The source test results show that only two of the 12 source test runs were above the 4.4 lb/hr limit proposed by EPA and the average of the three runs for each of the four calciner cooler vents was less than 4.10 lb/hr. EPA believes that the source test data provides sufficient evidence that Astaris-Idaho can comply with an emission limit of 4.40 lb/hr for each of the calciner cooler vents.

In response to the comments submitted by the Tribes, the State, and members of the public, EPA has reconsidered its previous RACT analysis for the calciner cooler vents in light of the higher emissions estimate for this source, including consideration of condensible particulates. A preliminary review indicates that the cost effectiveness of PM-10 removal for the calciner cooler vents would be at the very least more than $10,000 per ton, with some technologies ranging as high as $60,000 per ton of PM-10. In addition, there are questions regarding which control technology would be the most effective in reducing PM-10 emissions because the nature and extent of condensible PM-10 emissions from the calciner cooler vents is not well understood. A baghouse would have a high removal efficiency for filterable PM-10 but would have little impact in reducing condensible PM-10 emissions. A scrubber would be more efficient than a baghouse in controlling condensible PM-10 emissions, but would be less effective in controlling filterable PM-10 emissions. EPA plans to further investigate the nature and extent of PM-10 emissions from the calciner cooler vents over the next several months through additional source testing and filter analysis, and to propose a reduced emission limit based on additional controls to serve as a contingency measure. Until that time, a limit of 4.4 pounds per hour for filterable PM-10 should ensure that emissions from the calciner cooler vents do not increase above existing levels.

I. Emission Limits for Furnace Building

In the February 1999 FIP proposal, EPA determined that furnace building Medusa-Andersen scrubber stacks (sources 18d, 18e, 18f, and 18g) are RACT-level controls. See Technical Support Document, pp. 102-103. EPA also determined that additional controls, including slag ladling and improvements to the control and capture of emissions on the burden level of the furnace building were needed. See 64 FR at 7334-7335. EPA proposed an opacity limit of 10%, with a corrective action level of 5%, except that fugitive emissions from the furnace building are subject to an opacity limit of 20% and a corrective action level of 10% until April 1, 2002, when the upgrades to the burden level of the furnace building must be completed. See 65 FR at 4489-4493 (Tables 1 and 2, sources 18a to 18g). The Tribes commented that they do not believe Astaris-Idaho will be able to comply with the opacity limits in the FIP for the furnace building and that they have frequently observed opacity levels from the furnace building sources in excess of the proposed opacity limits. The Tribes therefore state that the furnace building sources do not employ RACT and that additional controls, such as enclosure of the furnace building and ducting the air mass to a control device, should be required and are needed to meet the opacity limits.

The focus of the Tribes' comments appears to center on their belief Astaris-Idaho cannot comply with the opacity limits for the furnace building because it has not done so in the past. As an initial matter, EPA continues to believe that the Medusa-Andersen scrubbers represent RACT for point source emissions from the furnace building. These scrubbers are the most effective control technology known to EPA at this time for water soluble phosphorus compounds. As discussed in the TSD for the February 1999 FIP proposal, although adding low energy scrubbers to the existing Medusa-Andersen scrubbing system would result in additional emissions reductions, EPA believes that such a requirement would go beyond RACT in light of the cost of these additional controls when compared to anticipated additional emission reductions. See TSD, pp. 102-103. EPA also believes that the current control equipment, when properly operated and maintained, can achieve the opacity limits in the FIP on a continuous basis. During the three visible emissions surveys conducted by the Tribes from 1995 to 1999, the highest reported six-minute average was 1.25%, with most individual readings at zero percent opacity, well below the opacity limit of 10% and the corrective action level of 5% for the furnace building scrubbers.

The furnace building itself is subject to an opacity limit of 20% until April 1, 2002, and thereafter subject to an opacity limit of 10%. Complying with the 20% opacity limit will necessitate implementation of stringent operations and maintenance procedures and good housekeeping procedures by Astaris-Idaho until the upgrades to the furnace building are completed. Astaris-Idaho has not contested application of a 20% opacity limit to this source and EPA fully expects that the facility will be able to achieve it. Failure to do so would put the facility in violation of the FIP and subject to penalties and injunctive relief. If the violations continue, such injunctive action could include expedited imposition of all actions necessary to comply with the emission limits, including the early installation of additional controls on the furnace building.

EPA has carefully evaluated the feasibility of enclosing the furnace building and ducting the emissions to a control device. EPA has concluded that, in light of the nature and amount of emissions from the furnace building and safety issues relating to complete enclosure of the building, implementation of this control option would do go beyond what is considered reasonable and would therefore not constitute RACT. EPA believes that Astaris-Idaho should be able to comply with the opacity limits in the FIP by completing implementation of hot pour slag ladling on all four furnaces, completing the upgrades to the upper level of the furnace building, closing doors and other openings on the side of the furnace building during windy conditions, and if necessary, constructing a minimum additional building enclosure to reduce cross drafts. A copy of the analysis of the feasibility of additional controls for the furnace building is in the docket. See also 64 FR at 7323-7324.

J. Emission Limits for Excess CO Burner

The elevated secondary condenser flare and CO ground flare (excess CO flares) are the largest emitters of PM-10 at the Astaris-Idaho facility. At the time of the February 1999 FIP proposal, EPA believed that these sources emitted approximately 3109 lb/day, accounting for almost one half of all PM-10 emissions at the Astaris-Idaho facility. EPA determined that replacing the flares with a combustion chamber to burn the phosphorus in the excess CO gas stream and ducting exhaust gasses to a scrubber to remove phosphorus pentoxide would constitute effective RACT-level controls for this source (this control option has been referred to as an excess CO burner). See 64 FR at 7332-7333. Indeed, it is a very novel control option for controlling the excess CO flare gas. EPA also believes it is technologically and economically feasible because Astaris-Idaho has already committed to installing the excess CO burner as part of the RCRA Consent Decree and meeting a control efficiency of 95%. The February 1999 FIP proposal proposed an emission limit of 6.5 lb/hr and an opacity limit of 5%, commencing January 1, 2001. The emission limit was derived by assuming a 95% reduction in existing emissions from the flares. The February FIP proposal also proposed interim requirements on the flares to reduce emissions attributable to “mini-flushes” until the excess CO burner is in place. Id.

During the summer of 1999, Astaris-Idaho built, operated, and tested a pilot excess CO burner demonstration project. This project is approximately 1/80th in scale of the excess CO burner Astaris-Idaho intends to build to satisfy its obligations under the RCRA Consent Decree. Operation and testing of the excess CO burner pilot project over the summer of 1999 revealed that emissions from the excess CO flares were much higher than previously believed. This was the first time that emissions from the flares had been estimated through actual source testing and that condensible PM-10 emissions had been included in the estimate. Based on this source test data, EPA concluded that the flares emitted approximately 10,543 lb/day of PM-10 under reasonable worst case conditions, thus accounting for more than two-thirds of all PM-10 emissions from the Astaris-Idaho facility. See 65 FR at 4472-4474. Based on this revised emissions information, EPA proposed in the January 2000 supplemental proposal to increase the emission limit from for the excess CO burner to 24 lb/hr and to add a requirement that the excess CO burner meet a control efficiency of 95% under all operating conditions. The pounds per hour limit was again based on a 95% reduction in emissions from current levels from the flares. Consistent with the opacity limits for other sources and numerous opacity readings on the pilot plant, EPA proposed an opacity limit of 10% with a corrective action level of 5%. See 65 FR at 4472-4477. The effective date of these limits, including the interim requirements on the flares to limit mini-flushes, were not changed by the January 2000 supplemental proposal.

The Tribes and citizens raised several concerns with EPA's proposal for the flares and excess CO burner. First, due to the continued high emissions from the flares (more than 10,000 pounds per day under reasonable worst case conditions), these commenters requested that EPA propose an additional interim requirement that Astaris-Idaho curtail furnace use (i.e., curtail production) when use of one of the calciners must be shut down for maintenance or other reasons. Second, the commenters questioned the basis and reliability of the increase in the emissions estimate from this source and the resulting increase in the emission limit by EPA. The commenters argued that alternative control technology that can achieve the originally proposed limit of 6.5 lb/hr should be considered and required. Astaris-Idaho commented that it was not technologically feasible to achieve a control efficiency of 95% under low inlet loadings. Astaris-Idaho also requested flexibility to modify the reference test method.

EPA does not have sufficient information at this time to determine whether the commenters' proposal to curtail furnace use or to impose additional requirements before the excess CO burner is installed are technologically feasible. In support of their request, the commenters note that Astaris-Idaho earlier committed that if one of the calciners goes down, once the excess CO burner is in place, it would indeed curtail furnace operation within ten minutes so that the facility can handle the excess CO gas without further flaring. EPA does not have sufficient information at this time to determine whether this approach is feasible before the excess CO burner is constructed. Even if EPA were to establish additional interim requirements, they would not become effective until the late summer of 2000, at the earliest. The FIP requires that the excess CO burner be operational by January 1, 2001, but Astaris-Idaho has advised EPA that they intend to have the system in operation on November 1, 2000. This means that emissions from the excess CO burner will continue at current levels for only a period of approximately four months (six months if the system is not in place until January 1, 2001). During this period, EPA urges Astaris-Idaho to take all possible measures to ensure that the flaring of excess CO gas is minimized, such as by deferring maintenance on the calciners until after the excess CO burner is operational.

With respect to the comments concerning the revisions to the emissions estimate for the excess CO flares and the resulting increase in the emission limit for the excess CO burner, EPA has reviewed the source test results and believes for a number of reasons that the information is more reliable than the previous emission estimates for the excess CO flares. First, the testing on the excess CO burner pilot project is the first actual source testing ever conducted on the excess CO flares. Previous emission estimates were derived from theoretical chemical reaction calculations and assumptions of worst case operating conditions. Second, the revised emission estimates include condensible PM-10 emissions, which would be expected from this source, whereas the previous emission estimate did not. Finally, the revised emission estimates, which indicate that emissions from the flares account for almost two-thirds of all PM-10 emissions from the Astaris-Idaho facility, is consistent with the conclusions of the Source Apportionment Study.

Based on the revised emission estimate, EPA does not believe an emission limit of 6.5 lb/hr is achievable with the excess CO burner or with any other reasonably available control technology. EPA has determined that the best control option available for the excess CO flares, one that is so novel that it has never been applied to an elemental phosphorous facility, is combustion of the CO gases and control by a scrubber. Based on the emission characteristics of the gas stream in the flares at Astaris-Idaho (including the chemical composition of the particulates and precursors), EPA further believes that the Andersen scrubber is the most effective technology available. No one has provided in their comments information regarding another control technology that would be more effective for controlling PM-10 emissions from flaring excess CO gas at the Astaris-Idaho facility. For these reasons, EPA continues to believe that an emission limit of 24 lb/hr is appropriate and represents RACT for this source.

As discussed above, Astaris-Idaho commented that requiring a 95% control efficiency under low inlet loadings (where the gas stream to the scrubber system is relatively clean) is contrary to accepted scrubber theory. Based on further review of the information provided by Astaris-Idaho, EPA agrees that requiring Astaris-Idaho to demonstrate a control efficiency of 95% under low inlet loadings is not reasonable. Astaris-Idaho requested that the control efficiency requirement not apply to situations where inlet loadings were below 0.69 gr/dscf. The equipment supplier, Andersen 2000, Inc., guaranteed in a comment letter dated February 29, 2000, that 95% control would be achieved at or above this inlet loading. In their March 13, 2000 comments, Astaris-Idaho provided a graph that showed overall control efficiency as a function of quench inlet loadings (gr/dscf). From that graph, at inlet loadings equal to or greater than 0.4 gr/dscf, overall control efficiency is greater than 95%. At inlet loadings below 0.4 gr/dscf, overall control efficiency drops below 95%. After reviewing the available source test data, EPA believes that Astaris-Idaho should be able to demonstrate a control efficiency of 95% at inlet loadings of 0.50 gr/dscf or above. Therefore, EPA has modified the control efficiency requirement to require that the excess CO burner achieve a control efficiency of at least 95% when inlet loadings are greater than or equal to 0.50 gr/dscf.

Astaris-Idaho also commented that an alternative stack sampling test method will be required for the excess CO burner because of the nature of the particulates being sampled . The FIP includes procedures to allow modifications to reference test methods if sufficient support information is provided. See 40 CFR 49.10711(d)(5). Those procedures should accommodate Astaris-Idaho's concerns.

Another issue relating to the excess CO burner is the need for an emergency flare on the system. Astaris-Idaho has indicated that during unplanned shutdowns of the excess CO burner and scrubber system, the excess CO burner will need to be equipped with an emergency flare for safety reasons. The Tribes and other commenters have expressed concern that the use of this emergency flare be carefully controlled.

In its comments on the January 2000 supplemental proposal, Astaris-Idaho stated that it would provide notification to EPA and the Tribes regarding the emergency flare on the excess CO burner in accordance with the requirements of the final FIP for new and modified sources. The FIP requires Astaris-Idaho to notify EPA of at least 90 days prior to the construction of a new or modified source of PM-10 at the facility. Because the emergency flare on the excess CO burner is not included in Table 1, it would be considered a new source. See 40 CFR 49.10711(c)(11). If Astaris-Idaho follows the procedure in 40 CFR 49.10711(c)(11), an emergency flare on the excess CO burner would be subject to an opacity limit of 10% and must be addressed in the operations and maintenance plan for the facility. If, based on the information provided by Astaris-Idaho, EPA determines that additional requirements for the emergency flare on the excess CO burner are necessary or appropriate, EPA would promulgate additional requirements for this source as a FIP revision through notice and comment rulemaking.

Prohibiting construction or operation of the emergency flare for the excess CO burner outright would delay construction and operation of the excess CO burner and scrubber, the control technology imposed by the FIP for the largest source of particulate matter at Astaris-Idaho, because the emergency flare is needed for safe operation of the excess CO burner. If operation of the excess CO burner were delayed, the elevated secondary condenser flare and CO ground flare would continue emitting up to 10,000 lb/day of PM-10 emissions. EPA urges Astaris-Idaho to honor its commitment to provide EPA and the Tribes with the information required by 40 CFR 49.10711(c)(11) regarding the emergency flare on the excess CO burner as promptly as possible so that construction and operation of the excess CO burner is not delayed.

K. Opacity Limits

In the February 1999 FIP proposal, we proposed limits on visible emissions from all sources except for the calciner scrubbers, dumping to the slag pile, and the existing excess CO flares. The proposed opacity limits ranged from a limit of no visible emissions from certain piles and processes to 10% opacity on fugitive emissions not captured by baghouses. See 64 FR at 7325-7326. EPA did not rely on a direct correlation between opacity levels and mass emissions to support the opacity limits proposed in the FIP. Instead, the control strategy is premised on ensuring that, for those sources in the emission inventory that we believe currently employ RACT-level controls, emissions from those sources remain at current levels. 64 FR at 7325. The emissions rates in the emission inventory were established on the assumption that the process and control equipment that affect a particular source are properly operated and maintained at all times. In turn, the opacity limits proposed by EPA are intended to ensure that assumption will in fact be met.

In commenting on the February 1999 FIP proposal, Astaris-Idaho conceded that some enforceable limits on visible emissions should be required in the FIP, but contended that the proposed opacity limits are overly stringent and not supported by the record. As an alternative, Astaris-Idaho suggested that the FIP establish a facility-wide opacity limit of 20% and then build in action levels for each source below 20% that would trigger a requirement for Astaris-Idaho to commence an investigation and take corrective action. A source that exceeded the action level would not, however, be considered in violation of the opacity limit so long as emissions do not exceed the 20% opacity limit. Another commenter stated that an opacity limit of zero percent should be required for all baghouses because baghouses should have no visible emissions if they are being properly operated and maintained.

In the January 2000 supplemental proposal, EPA adopted a slightly different approach to opacity in an attempt to accommodate some of Astaris-Idaho's concerns while still achieving EPA's goal of ensuring that all control and process equipment are being properly operated and maintained. To simplify the regime for monitoring opacity, EPA proposed a limit of 10% for most sources. To further ensure that emissions from these sources are minimized at all times, EPA also proposed an opacity action level for each source. In addition, for certain open (i.e., uncaptured) fugitive dust sources, such as certain piles and roads, that could be impacted by meteorological conditions, such as high winds during dry conditions, EPA proposed an opacity limit of 20%, with a corrective action level of 10%.

EPA agrees with the one commenter that a properly operating baghouse will generally have no visible emissions. When baghouses are in the self-cleaning mode (part of the normal and needed cleaning of the baghouse), however, visible emissions are occasionally observed. EPA, therefore, did not propose a limit of zero visible emissions on baghouses. For a more detailed discussion of this proposal, please refer to the January 2000 supplemental proposal. 65 FR at 4475-4476.

In response to the January 2000 supplemental proposal, Astaris-Idaho and a few other commenters again requested a facility-wide opacity limit of 20% and action levels for each source below 20% that would trigger a requirement for Astaris-Idaho to commence an investigation and take corrective action. Other commenters expressed a general concern with high opacity levels at the Astaris-Idaho facility, but these other commenters did not appear to take issue with the opacity limits proposed by EPA in the January 2000 supplemental proposal. EPA does not believe that a facility-wide opacity limit of 20% achieves its objective of ensuring emissions from sources employing RACT-level controls remain at current levels through proper operation and maintenance of process and control equipment. Based on the visible emission surveys of the Astaris-Idaho facility conducted in December 1995-January 1996, October-November 1998, and a recent survey conducted in September 1999, opacity levels above 20% are far above typical opacity levels for the sources at Astaris-Idaho and thus would reliably identify a source that was not being properly operated or maintained.

Based on a comment from Astaris-Idaho, EPA has made a minor revision to the opacity limit for the pressure relief vents (PRVs). EPA has added an exception to the 10% opacity limit for emissions occurring during steam cleaning and draining of the PRV drop tank. This operation and maintenance procedure occurs twice each day and Astaris-Idaho expressed concern that steam escaping the PRV during such cleaning events could be identified incorrectly as visible emissions. To account for this concern, EPA is providing an opacity limit of 20% during this operation and maintenance procedure twice each day. EPA is also requiring the facility to keep records of the date and time of this procedure, consistent with the facility's current practice.

L. Excess Emissions

In the February 1999 FIP proposal, EPA proposed two alternative approaches with respect to excess emissions due to startup, shutdown, scheduled maintenance, malfunction, or emergency. 64 FR at 7328; 64 FR 17990, 17991 (April 13, 1999). Under the first approach, the emission limitations would apply at all times and there would be no affirmative defense for excess emissions caused by such events. If emissions did exceed the proposed limits during startup, shutdown, scheduled maintenance, malfunction, or emergency, EPA would, of course, retain its enforcement discretion to forgo seeking a civil penalty for violation of the limits. Under the second alternative, EPA proposed to provide an affirmative defense to a penalty action (but not to an action for injunctive relief) provided certain conditions are satisfied. EPA based the affirmative defense on EPA's interpretation of the CAA set forth in a guidance document EPA issued to States regarding excess emissions during startup, shutdown, scheduled maintenance, and malfunctions, and also on the “emergency defense” provision in 40 CFR 71.6(g). See Memorandum from Kathleen M. Bennett, Assistant Administrator for Air And Radiation, to the Regional Administrators, entitled “Policy Regarding Excess Emissions During Startup, Shutdown, Scheduled Maintenance, and Malfunctions” (February 15, 1983) (referred to hereafter as “1983 Excess Emissions Policy”). These two alternatives were not further discussed in the January 2000 supplemental proposal.

Although the Tribes, the State of Idaho, and members of the public expressed concerns regarding frequent events referred to by Astaris-Idaho in the past as “upsets” that the commenters believe cause exceedences of the PM-10 standards, none of the commenters opposed providing Astaris-Idaho a narrowly-tailored affirmative defense for emissions in excess of limits in the FIP so long as such a provision does not interfere with expeditious attainment and maintenance of the PM-10 NAAQS in the area. Astaris-Idaho strongly supported the affirmative defense proposed by EPA, although with several modifications. In general, Astaris-Idaho requested that the affirmative defense more closely follow EPA's 1983 Excess Emissions Policy. In particular, Astaris-Idaho objected to the provision that made the affirmative defense unavailable on any day an exceedence of the PM-10 NAAQS was recorded in the Fort Hall PM-10 nonattainment area. The Tribes also commented that EPA should more closely follow EPA's policies on excess emissions but expressed strong support for the provision objected to by Astaris-Idaho.

Since publication of the February 1999 FIP proposal, EPA issued a revised guidance document regarding excess emission events in SIPs. See Memorandum from Steven A. Herman, Assistant Administrator for Enforcement and Compliance Monitoring, and Robert Perciasepe, Assistant Administrator for Air And Radiation, to the Regional Administrators, entitled “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” (September 20, 1999) (referred to hereafter as “1999 SIP Excess Emissions Policy”). That guidance document reaffirmed, clarified, and supplemented EPA's 1983 Excess Emissions Policy. Copies of the 1983 and 1999 policies are in the docket.

Based on the comments submitted to EPA, EPA believes it is appropriate to provide a narrowly drawn affirmative defense to a penalty action brought for emissions in excess of the FIP limits under certain conditions. EPA has made some minor revisions to the provisions to ensure consistency with the Clean Air Act, as interpreted in the guidance EPA has issued to States regarding the types of excess emissions provisions that States may incorporate into State Implementation Plans. For example, EPA has determined it is inappropriate to include scheduled maintenance as an event that could excuse excess emissions from a penalty action. EPA believes that maintenance is a predictable event that can be scheduled at the discretion of the operator to coincide with maintenance of production equipment or other source shutdowns. With respect to excess emissions caused by emergencies or malfunctions, EPA has clarified the proposal to ensure prompt corrective action and the minimization of excess emissions similar to that included in the provision for excess emissions in the case of startup and shutdown. EPA has continued to include the provision stating that the affirmative defense would not apply on any day on which an exceedence of the revised PM-10 NAAQS was recorded by any monitor in the Fort Hall PM-10 nonattainment area. EPA believes that an affirmative defense is appropriate only when the respective contributions of individual sources to pollutant concentrations in the ambient air are such that no single source or small group of sources has the potential to cause an exceedence of the NAAQS or PSD increments. See 1999 Excess Emissions Policy, Attachment p. 1. As discussed in the February 1999 FIP proposal, Astaris-Idaho is the primary or at least the most significant contributor to the PM-10 exceedences that have been recorded on the Tribal monitors. 64 FR at 7309. The Tribes and other commenters also stated it was important to ensure that allowing an affirmative defense must not interfere with attainment and maintenance of the PM-10 NAAQS in the area. To the extent Astaris-Idaho believes that an exceedence of the PM-10 NAAQS recorded in the Fort Hall PM-10 nonattainment area is not attributable to its facility and makes a persuasive case to that effect to EPA, EPA could exercise its enforcement discretion to forgo seeking a civil penalty for violation of the emission limit.

M. Monitoring, Recordkeeping, and Reporting

The February 1999 FIP proposal included extensive monitoring, recordkeeping, and reporting provisions for ensuring compliance with the emission limits and work practice requirements in the FIP. Astaris-Idaho requested that EPA include provisions that would provide procedural flexibility for modifying certain aspects of the FIP through a process other than a revision to the FIP. In the January 2000 supplemental proposal, EPA included several such provisions, such as a provision authorizing the Regional Administrator to extend the time period for conducting source tests for an additional 90 days for good cause, a provision authorizing the Regional Administrator to modify a reference test method, and a provision authorizing changes to monitoring, recordkeeping, and reporting provisions of the FIP through the issuance of or a significant permit modification to Astaris-Idaho's title V permit. See 65 FR at 4478-4479.

The Tribes requested that EPA require semi-annual source testing for the calciner scrubbers, the calciner cooler vents, the furnace Medusa-Andersen scrubbers, the phos-dock Andersen scrubber, and the excess CO burner, as well as continuous opacity monitors (COMs) on the furnace scrubbers, phos-dock Andersen scrubber, and excess CO burner because these sources have a larger potential to emit or a much higher probability of compliance problems. The Tribes further requested that, if a source test documents a violation of an emission limit, Astaris-Idaho should be required to conduct another test of that source within 90 days. The Tribes also requested a change in the reference test method for the furnace Medusa-Andersen scrubbers.

EPA has revised the FIP to require semi-annual source tests for the calciners and the excess CO burners because these two sources will either be completely new or have substantial changes made to existing control technology. EPA is not requiring more frequent testing of the other sources identified by the Tribes because the change in the control systems for these sources is less substantial. EPA has authority under section 114 of the Clean Air Act to require more frequent testing of these sources if needed. EPA has also revised the FIP to include a requirement that another source test be conducted within 90 days after a source test shows a violation of the emission limit for this source. In addition, EPA has revised the reference test method for the furnace scrubbers to include at least 20 minutes of slag tapping in each of two runs and at least 20 minutes of metal tapping in the other run. EPA based this approach on the fact that tapping occurs approximately every hour, a tap lasts approximately 20 minutes, and slag tapping occurs more frequently than metal tapping. Because each source test run takes a minimum of one hour, this approach should ensure that the source tests are representative of operational conditions. EPA has not revised the FIP to require COMs because EPA does not believe that COMs can be installed on the Andersen scrubber stacks due to interference from water vapor.

N. PM-10 Precursors

Under CAA section 189(e), the control requirements applicable under SIPs to major stationary sources of PM-10 must also be applied to major stationary sources of PM-10 precursors, unless EPA determines such sources do not contribute significantly to PM-10 levels in excess of the NAAQS in the area. 57 FR at 13541. Not all particulate in the air is directly emitted in particulate form from emission sources. Particulate can also be formed in the air through complex chemical processes involving emission of gaseous pollutants called “precursor gasses” or “precursors”. A precursor gas is a gas that is in the vapor state under both elevated stack temperature and at ambient temperature and cannot be measured in stack tests using either Methods 5 or 201/201A (filterable particulate) or Method 202 (condensible particulate). PM-10 precursors can include volatile organic compounds, which form secondary organic compounds; sulphur dioxide, which forms sulfate compounds; and nitrogen oxides, which form nitrate compounds. See 57 FR 13538. The particulates formed in the air from precursor gasses are generally referred to as “secondary aerosol.”

In the February 1999 FIP proposal, EPA stated that it did not have sufficient information to determine whether PM-10 precursors contribute significantly to PM-10 levels in excess of the NAAQS in the Fort Hall PM-10 nonattainment area but that an analysis of the filters on the Tribal monitors (the Source Apportionment Study), which was to be completed in the summer of 1999, should provide this information. EPA also stated that it would address PM-10 precursors, as necessary or appropriate, in a subsequent rulemaking. See 64 FR at 7318, 7342. The January 2000 supplemental proposal did not directly address PM-10 precursors, although it did summarize the findings of the Source Apportionment Study.

EPA received many comments on PM-10 precursors, including comments from the Tribes and the State of Idaho. The Tribes stated that EPA should either revise the FIP to address precursors or directly address the possibility that the FIP will need to be reopened after the Source Apportionment Study was complete in order to include controls on emissions of PM-10 precursors. Two other commenters noted their expectation that EPA address PM-10 precursor emissions from the Astaris-Idaho facility if such emissions are determined to be a significant contributor to NAAQS violations in the area, and also stated that such emissions would likely need to be addressed and controlled under the new PM-2.5 standard. The comments on the January 2000 supplemental proposal revealed a heightened concern with PM-10 precursors for two apparent reasons. First, several commenters interpreted the Source Apportionment Study as finding that PM-10 precursor emissions from the Astaris-Idaho facility do contribute significantly to exceedences of the PM-10 standards on the Tribal monitors. The Tribes and Idaho are particularly concerned that phosphorus and sulfur dioxide emissions from Astaris-Idaho are PM-10 precursor emissions. Second, public concern with PM-10 precursors and air quality in general was heightened by the exceedences of the PM-10 NAAQS recorded on State monitors in and near Pocatello and on the Tribal monitors in December 1999 and January 2000 during an air stagnation event. These were the first exceedences recorded on the State monitors since January 1993. Preliminary information shows that sulfates were a significant portion of the PM-10 mass captured on the filters at the State and Tribal PM-10 monitors during the December 1999 and January 2000 exceedences.

EPA does not agree that the Source Apportionment Study supports a finding that PM-10 precursors contribute significantly to exceedences of PM-10 in the Fort Hall PM-10 nonattainment area. In fact, the report states, “Sulfate is contributed by regional sources and by the calciner stacks, but is a minor contributor to PM-10, accounting for about 5% of the fine mass during exceedences.” See Source Apportionment Study, Executive Summary, Bullet #4. EPA also does not agree that phosphorous is a precursor to the formation of PM-10 secondary aerosol. Phosphorus in a gas stream converts to phosphorus pentoxide (P₂ O₅), a fine particulate, prior to or immediately upon contact with the atmosphere. Phosphorus is, of course, emitted from Astaris-Idaho in significant quantities. The gases in the calciners, excess CO flares (which will be replaced by the excess CO burner), and phos dock contain significant amounts of phosphorus, which is oxidized to P₂ O₅ when it meets with the ambient air. This P₂ O₅ is collected and measured by reference test Methods 5, 201/201A and 202 as primary particulate matter, and is therefore not a precursor to PM-10 secondary aerosol. This P₂ O₅ is included in the emission inventory and will be controlled by the requirements of in this FIP. For example, the largest sources of phosphorus and phosphorus compounds are the elevated secondary condenser flare and CO ground flare. These will be replaced by the excess CO burner and controlled by the Andersen scrubbing system, which will be required to remove 95% of the inlet particulate loadings under most operating conditions and meet an emission limit of 24 lbs/hr. EPA is not aware of any other alternative control technology that is more effective in controlling phosphorous and phosphorus compounds from the excess CO flares and believes that this technology constitutes RACT-level control and likely even BACT-level control. Another large source of phosphorus and phosphorus compounds are the calciners. Again, this source will be required to meet RACT-level emission limits of 0.008 gr/dscf for filterable PM-10 and 0.018 gr/dscf for all PM-10. In any event, these phosphorous gases will be regulated by the FIP because the FIP requires the implementation of RACT on all sources at the Astaris-Idaho facility and the phosphorus sources that contribute to exceedences of the PM-10 NAAQS are included in the sources regulated by the FIP.

As stated above, preliminary information from Idaho and the Tribes indicates that a significant portion of the filter loadings during the days when the level of the 24-hour PM-10 standard was exceeded in December 1999 and January 2000 was determined to be sulfates. This could suggest that PM-10 precursors do contribute significantly to PM-10 levels which exceed the PM-10 NAAQS in the area. EPA has not yet received the results of the filter analysis recently completed for the State and Tribal monitors for the December 1999-January 2000 exceedences. Once EPA receives this information, it will work with the Tribes and the State to better understand the sources, emissions, and chemical reactions that contributed to the recent exceedences of the PM-10 NAAQS and, if the results demonstrate precursor contributions are not insignificant, will address PM-10 precursor emissions from Astaris-Idaho as necessary or appropriate in a later rulemaking.

O. Implementation and Enforcement of the FIP

Several commenters, including the Tribes and the State, expressed concern that the FIP does not contain enforcement provisions or a detailed description of EPA's plans for determining whether Astaris-Idaho is complying with the requirements of the FIP and taking enforcement action if Astaris-Idaho is out of compliance. These commenters complained that the FIP relies heavily on self-monitoring by Astaris-Idaho and argued that regular EPA unannounced inspections of the Astaris-Idaho facility, observation of source tests, and a strong enforcement presence by EPA is essential if improved air quality is to be assured. Some commenters expressed support for the Tribes' involvement in this oversight and enforcement process.

EPA agrees that a strong enforcement presence is needed to ensure that Astaris-Idaho is complying with the requirements of the FIP and that the expected air quality benefits are in fact being realized. Until the Shoshone-Bannock Tribes are authorized to manage CAA programs within the Fort Hall Indian Reservation under the provisions of the Tribal Authority Rule (TAR), 40 CFR part 49, EPA is responsible for ensuring that all sources on the Fort Hall Indian Reservation, including Astaris-Idaho, comply with the requirements of the Clean Air Act and any applicable implementing regulations. The federal Clean Air Act programs that apply within the Fort Hall Indian Reservation at this time include Prevention of Significant Deterioration, section 169 of the CAA and 40 CFR part 51.21; New Source Performance Standards, section 111 of the CAA and 40 CFR part 60; National Emission Standards for Hazardous Air Pollutants, section 112 of the CAA and 40 CFR parts 61 and 63. For the Astaris-Idaho facility, the federal requirements will also include this FIP.

The Tribes have expressed a desire to assist EPA in ensuring that Astaris-Idaho acts in compliance with the requirements of this FIP, and for otherwise assuring that Astaris-Idaho and other sources located within the Fort Hall Indian Reservation are in compliance with the requirements of the Clean Air Act and its implementing regulations. EPA is working with the Tribes to develop a memorandum of agreement that will set forth the roles and responsibilities of EPA and the Tribes in overseeing enforcement of the Clean Air Act and this FIP within the Fort Hall Indian Reservation. With respect to the Astaris-Idaho facility, this agreement is expected to address the following activities:

• Inspections of the Astaris-Idaho facility at least two times per year. Except in unusual circumstances due to logistical or other planning considerations, such inspections will be unannounced inspections;
• Regular monitoring of visible emissions;
• Reviews of operating reports, excess emission reports, and emission monitoring reports;
• Reviews of required operation and maintenance manuals;
• Observations of scheduled source tests and reviews of the results;
• Investigations of causes of elevated levels of particulate matter as determined by ambient monitoring;
• Investigations of public complaints regarding the Astaris-Idaho facility;
• Logging of compliance and inspection data regarding the Astaris-Idaho facility into EPA data bases.

The agreement is also expected to address oversight of the air quality-related Supplemental Environmental Projects under the RCRA Consent Decree to ensure that the projects are completed in a timely manner.

When violations are reported by Astaris-Idaho or discovered by EPA or the Tribes as a result of inspections or other reviews, EPA intends to take prompt enforcement action consistent with EPA policy, including how penalties are assessed. The Clean Air Act provides EPA with broad discretionary authority in this regard. Under section 113 of the Clean Air Act, EPA is authorized to bring enforcement actions against Astaris-Idaho for violations of the FIP. This authority includes civil and administrative penalty authority, the authority to seek injunctive relief, and the authority to pursue criminal actions. Additional authority also exists in other parts of the Act, including EPA's emergency authority under section 303 and penalty authority under section 120. EPA rules under the Clean Air Act, such as this FIP, do not typically include separate or special enforcement provisions, but instead rely on the authority under section 113, 120, 303 and other EPA statutes. Under section 113 of the Clean Air Act, EPA has authority to collect up to $27,500 per day for each violation of each FIP requirement. Most States' penalty authority is limited to a maximum of $10,000 per day for each violations. See RCW 70.94.30 (Washington's civil penalty authority for air violations); Idaho Code 39-108(5) (Idaho's civil penalty authority for air violations).

Thus, the FIP does not rely on any single enforcement tool. Self-monitoring by Astaris-Idaho is a component, as indeed it is for sources subject to a SIP as well, but as discussed above, EPA also intends to play an active oversight role, along with the Shoshone-Bannock Tribes. Citizens also have a right to bring enforcement actions against Astaris-Idaho for violation of the FIP under section 304 of the Clean Air Act. In addition, the FIP includes many mechanisms that enhance the reliability of Astaris-Idaho's self-monitoring. First, the FIP requires Astaris-Idaho to install, maintain, and operate numerous monitoring devices that continuously measure and record emissions-related data. For example, all baghouses must be equipped with bag leak detectors, which will sound an alarm to signal when bag quality is deteriorating. Astaris-Idaho is also required to install monitoring devices to continuously record pressure drop and scrubbing functions. Under section 113(c)(2)(C), it is a criminal offense to falsify, tamper with, render inaccurate, or fail to install any monitoring device or method required under the Clean Air Act. Second, in some instances the FIP requires more than one monitoring method to ensure compliance with a single requirement. Finally, all reports and records required to be submitted to EPA and the Tribes must be certified by a responsible official as to their truth, accuracy, and completeness. Again, Astaris-Idaho would be subject to criminal liability for falsifying these records or reports.

P. Transportation Conformity

One commenter on the January 2000 supplemental proposal, Bannock Planning Organization (BPO), although favorably acknowledging EPA's efforts to regulate Astaris-Idaho and the emission reductions expected to be achieved through the FIP, expressed concern that the FIP did not adequately address transportation conformity. The commenter stated that, as the designated metropolitan planning organization (MPO) for the area, it is required to ensure that transportation projects conform with air quality plans. Without a mobile emissions budget in the FIP, BPO stated, they would not be able to make a conformity determination for the Fort Hall PM-10 nonattainment area and absent such a determination the area would be unable to complete any transportation projects. BPO requested that EPA either formally determine that transportation conformity requirements are inapplicable for the Fort Hall PM-10 nonattainment area, or, alternatively, assure BPO that a FIP which includes a mobile source emissions budget covering the entire nonattainment area would be adopted by the Agency by December 2002.

EPA is confused by the comments submitted by BPO, since they raise issues with respect to the Fort Hall PM-10 nonattainment area and the Astaris-Idaho facility that are inconsistent with prior regulatory actions by EPA, as well as with FIP actions that have been proposed and are being finalized today. EPA revised the designation for the former Power-Bannock Counties PM-10 nonattainment area to create two separate nonattainment areas, the Portneuf Valley PM-10 nonattainment area situated on State lands and the Fort Hall PM-10 nonattainment area comprised of lands located within the exterior boundaries of the Fort Hall Indian Reservation. 63 FR 59722 (November 5, 1998). In its initial FIP proposal notice, EPA stated that it was issuing this FIP pursuant to discretionary authority granted the Agency under sections 301(a) and 301(d)(4) of the Clean Air Act. 64 FR at 73010-11. These sections of the Act authorize EPA to promulgate regulations specifying those provisions of the Act for which it is appropriate to treat Indian tribes in the same manner as states. EPA promulgated such regulations, known as the Tribal Authority Rule (TAR), on February 12, 1998. 63 FR 7254. In the TAR, EPA determined that the CAA provisions cited above constitute a delegation of federal authority to Tribes approved by EPA to administer CAA programs over all air resources within the exterior boundaries of appropriate reservations. Id. EPA further explained that, pursuant to these provisions, Congress expressed an intent to grant to eligible Tribes jurisdiction over all areas within the exterior boundaries of their reservations for the management of CAA programs. 63 FR at 7255. The TAR provides that, until Tribes have received EPA approval to manage particular CAA programs, the Agency itself will administer the CAA in Indian country in instances where EPA determines that doing so is necessary or appropriate to protect public health and welfare. See 40 CFR 49.11(a). Moreover, under the Federal Lands Highways Program, 23 U.S.C. 202(d), 204, as amended by the Transportation Equity Act for the 21st Century (TEA-21), authorization to promulgate and implement regulations regarding planning and construction, as well as transit-related improvement projects on Indian reservation roads are entrusted to the Secretary of the Interior, through the assistance of the Bureau of Indian Affairs. Given all the above, EPA is uncertain what BPO means when it asserts that “it is the designated metropolitan planning organization for the area,” if the area to which it is referring is the Fort Hall PM-10 nonattainment area that comprises the Fort Hall Indian Reservation.

In any event, the purpose of the FIP is to impose emission limits and work practice requirements that constitute RACT for particulate matter and that will, in light of this area's longstanding nonattainment problem, ensure expeditious progress towards improving air quality and attaining the PM-10 standards in order to protect the public health. Issues related to requirements on federal agencies, under section 176(c) of the Act, to demonstrate conformity of their emissions-generating activities to the air quality goals of the Fort Hall PM-10 nonattainment area, to the extent they are determined to be necessary or appropriate, will be addressed by EPA in a future rulemaking.

V. Other Changes From the January 2000 Supplemental Proposal

Many of the changes to the FIP have been discussed above in the discussion of the major comments on the FIP and EPA's responses to those comments. Other significant changes to the FIP are discussed below.

A. Codification

EPA originally proposed the FIP as an amendment to part 52, subpart N. That subpart codifies the provisions of the State Implementation Plan for the State of Idaho. In light of the opportunity to manage Clean Air Act programs now afforded to Tribes by the Tribal Authority Rule, EPA has determined that implementation provisions applicable in Indian Country should not be codified with State Implementation Plans, but should instead be codified separately to reflect and respect Tribal sovereignty. EPA is therefore codifying this FIP as an amendment to part 49, which is entitled “Tribal Clean Air Act Authority.” In connection with publication of this FIP, EPA is also making administrative amendments to part 49 that will create the structure for codifying this FIP, as well as future Federal Implementation Plans and Tribal Implementation Plans promulgated or approved by EPA for Indian Country. A subpart of part 49 is being created for each Region and will include the Federal and Tribal Implementation Plans for Tribes within that Region.

Implementation plans for Tribes in Region 10 will be codified in subpart M, and provisions for the Shoshone-Bannock Tribes will be codified at 40 CFR 49.10701 to 49.10730. This FIP for the Astaris-Idaho facility will be codified at 40 CFR 49.10711.

B. Definitions

EPA has revised the definition of Astaris-Idaho or Astaris-Idaho facility to include ponds and construction activities operated by Astaris-Idaho on Section 14 of Township 6 south, Range 33 east. The omission of this section of land from the definition was inadvertent. Because the definition of fugitive emissions is used for application of the emission limits and control requirements of the FIP, and not for applicability purposes, EPA has revised the definition to clarify that the relevant inquiry is whether the emissions actually do pass through a stack, chimney, vent, or other functionally equivalent opening.

C. Emission Limits

EPA has added a zero to the last digit of each emission limit to clarify rounding procedures. EPA has also revised the designation of three sources in Tables 1 and 2. In June 2000, Astaris-Idaho notified EPA that it had completed revamping its nodule reclaim operation as a Supplemental Environmental Project under the RCRA Consent Decree. That project eliminates the nodule fines pile (source 13) through enclosure of the pile under a dome that is controlled by a new baghouse, which Astaris-Idaho refers to as the “Nodule Reclaim Baghouse.” This is the name that EPA had used to identify sources 16a and 16b in Tables 1 and 2 of the proposals. EPA has renamed sources 16a and 16b as the “nodule stockpile baghouse” and the “nodule stockpile baghouse outside capture hood—fugitive emissions.” Because source 13 is now a baghouse rather than a pile, EPA has imposed the same opacity limit as for all other baghouses—10% opacity with a corrective action level of 5% opacity. EPA has also established an emission limit for this source of 0.90 pounds per hour. EPA derived this emission rate using a grain loading standard of 0.005 gr/dscf, an emission limit commonly established by States for new baghouses, and information provided by Astaris-Idaho regarding the flow rate of the baghouse.

D. New and Modified Sources

Astaris-Idaho objected to the 90-day advance notice provision for new and modified sources expected to cause an increase in PM-10 emissions and also to the definitions proposed by EPA to implement this provision. EPA believes a 90-day advance notice is appropriate and consistent with requirements in new source review provisions implemented in other States. EPA has added a provision, however, that would allow Astaris-Idaho to commence construction in less than 90-days upon receipt of written notification from EPA that the 90-day delay is not required. EPA intends to use this provision in appropriate situations such as where the PM-10 impacts of the project are small, less than the full 90 days is needed to review the project, and the existing opacity requirements in the FIP, as well as the operations and maintenance plan, are sufficient to address PM-10 emissions from the new or modified source. EPA also made minor changes to clarify what information must be submitted in connection with a new or modified source. EPA has clarified the definition of modification in response to a comment by Astaris-Idaho but has otherwise retained the definitions for this advance notice provision.

E. Monitoring, Recordkeeping, and Reporting

The changes to the frequency of source testing for certain sources are discussed in section IV.M. above. EPA has revised the source testing requirements to include provisions in the New Source Performance Standards for source testing, such as the requirement for 30 days prior written notice to EPA regarding the date of a scheduled source test and providing safe and effective facilities for source testing. See 40 CFR 60.8. Other minor changes to the source testing procedures were made to better ensure consistency between the requirements of this FIP and the standard terms and conditions of Region 10's part 71, Title V permits. At the request of Astaris-Idaho, EPA made minor modifications to the monitoring requirements for the calciner scrubbers and furnace Medusa-Andersen scrubbers. At the same time, EPA added a requirement that Astaris-Idaho propose and implement a plan for monitoring scrubber water quality for these sources because EPA believes that water quality is an important parameter for ensuring the scrubbers are being properly operated and maintained. EPA has modified the provision regarding weekly visible emission inspections to ensure that, if the first visible emissions observation detects a potential compliance problem, the visible emission observation conducted after investigation and appropriate corrective action must be conducted with the reference test method for the opacity limit. This will provide information needed to determine whether the source is in compliance with the opacity limit.

At the request of the Tribes and Astaris-Idaho, EPA has revised the FIP to require that Astaris-Idaho provide to the Tribes a contemporaneous copy of all reports, notices, and other documents submitted to EPA under the FIP. This provision will better enable the Tribes to ensure that the facility complies with the FIP and is operated in a manner that protects the health and welfare of the Tribes, their members, and their resources. Making this information more readily available to the Tribes will also facilitate the Tribes' role in working with EPA to ensure compliance with and enforcement of the FIP and will assist in building the Tribes' experience and capacity for administering Clean Air Act programs.

Finally, EPA made other minor changes to the monitoring, recordkeeping, and reporting provisions to better ensure consistency between the requirements of the FIP and the terms of the RCRA Consent Decree.

VI. Effectiveness of the Control Strategy

EPA continues to believe that the emission limits and work practice requirements in this FIP will result in attainment of the PM-10 NAAQS as expeditiously as practicable. As discussed in the February 1999 FIP proposal and the January 2000 supplemental proposal, based on measured air quality values, EPA believes that daily PM-10 emissions from the Astaris-Idaho facility must be reduced by approximately 65% in order for the Fort Hall PM-10 nonattainment area to attain the 24-hour standard and that annual PM-10 emissions must be reduced by approximately 25% in order for the area to attain the annual PM-10 standard. 65 FR at 4482; 64 FR at 7342.

Table A, below, shows current actual daily PM-10 emissions for Astaris-Idaho before implementation of the control strategy in comparison to expected actual and allowable emissions after full implementation of the control strategy. Expected actual emissions after full implementation of the FIP requirements were determined by assuming that Astaris-Idaho would operate each source at current levels or at the FIP limit for the source, whichever is less. For example, in the case of sources controlled by baghouses, Astaris-Idaho operates those sources, based on source test information, at rates slightly below the maximum levels allowed under the FIP. Allowable emissions after implementation of the FIP were determined by assuming that Astaris-Idaho would operate each source at the maximum rate allowed by the FIP for 100% of the 24-hour and annual time periods in the case of those sources that have a mass emission limitation. For sources for which there is no mass emission limit in the FIP but for which opacity limits and other requirements were based on the installation of additional control technology (such as slag handling sources), allowable emissions are calculated by applying the control efficiency of that technology as determined from the RACT evaluation. In the case of all other sources for which there is no mass emission limitation and the FIP does not contemplate the installation of additional controls, actual and allowable emissions are assumed to remain the same before and after implementation of the control strategy. Note that allowable annual emissions for some sources can be significantly higher than actual emissions because some processes only operate for short periods throughout the year. In calculating allowable emissions however, it is assumed that the processes operate continuously all year. For example, the calciners typically operate 6500 out of 8760 hours per year, or approximately 75% of the year.

A few changes have been made to the emission inventory. Condensible emissions have been included in the emission estimate for the calciner cooler vents both before and after the implementation of the control strategy. The January 2000 supplemental proposal had included condensible PM-10 emissions for the calciner scrubbers and the excess CO burner. With the revision of the emission estimate to include condensible emissions for the calciner cooler vents, the emission inventory includes filterable and condensible PM-10 estimates for the three sources from which condensible PM-10 emissions are expected. Condensible PM-10 emissions have been assumed to be zero for all other sources for the reasons discussed in section IV.F. above.

EPA has revised the estimate of current reasonable worst case annual emissions for the calciner scrubbers. In the January 2000 supplemental proposal, EPA assumed a grain loading of 0.029 gr/dscf to calculate current annual reasonable worst case emissions. This grain loading was the average baseline number, not a reasonable worst case number and EPA believes it may have underestimated current reasonable worst case annual emissions from the calciner scrubbers. EPA has determined a more representative grain loading for calculating current reasonable worst case annual emissions is 0.031 gr/dscf, resulting in an estimate of 252 tons per year.

The nodule fines truck loading and nodule fines stock pile emission sources have been eliminated in the case of expected actual and allowable emissions after implementation of the control strategy. As a SEP under the RCRA Consent Decree, the truck loading has been eliminated and the stockpile is now totally enclosed. A new baghouse has been constructed to control the emissions from the newly enclosed nodule fines stockpile. The emissions formerly included under nodule fines loading and the nodule fines stockpile are now included under “all other baghouses.” The emission estimate for the Medusa-Andersen scrubbers on the furnace building has been revised to better reflect reasonable worst case emissions based on what EPA believes to be a more accurate estimate of how many hours the furnace scrubbers operate on a reasonable worst case day.

As indicated in Table A below, the FIP is expected to reduce 24-hour PM-10 emissions by almost 80%. As discussed above, based on air quality monitoring data, a 65% reduction in PM-10 (from 433 ug/m3 to 150 ug/m3) is needed to achieve the 24-hour PM-10 NAAQS. As indicated in Table B below, the FIP is expected to reduce annual PM-10 emissions by at least 60%. As discussed above, based on air quality monitoring data, a 25% reduction in PM-10 is needed to achieve the annual PM-10 NAAQS. Thus, the FIP is expected to achieve emission reductions significantly in excess of that needed for attainment of the PM-10 standards. This cushion of over control should help alleviate concerns regarding whether the FIP will result in attainment of the PM-10 NAAQS.

VII. Administrative Requirements

A. Executive Order 12866

Under Executive Order 12866, 58 FR 51735 (October 4, 1993), all “regulatory actions” that are “significant” are subject to Office of Management and Budget review and the requirements of the Executive Order. As discussed in the February 1999 FIP proposal, this FIP is not a rule of general applicability and therefore is not a “regulatory action” under Executive Order 12866. See 64 FR at 7342-7343.

B. Regulatory Flexibility Act (RFA)

Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., EPA generally must prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless EPA certifies that the rule will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. sections 603, 604 and 605(b). As discussed in the February 1999 FIP proposal, because Astaris-Idaho has more than 1,000 employees, it is not a small entity under the RFA. Therefore, pursuant to 5 U.S.C. 605(b), I certify that the FIP will not have a significant economic impact on a substantial number of small entities. See 64 FR at 7343.

C. Unfunded Mandates Reform Act (UMRA)

Title II of the Unfunded Mandates Reform Act of 1995, Public Law 04-4, establishes requirements for federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. For the reasons discussed in the February 1999 FIP proposal, the FIP does not impose any enforceable duties or contain any unfunded mandate on State, local or tribal governments, or impose any significant or unique impact on small governments as described in UMRA. Moreover, the FIP is not likely to result in the expenditure of $100 million or more by the private sector in any one year. Therefore, the requirements of UMRA do not apply. See 64 FR at 7343.

D. Paperwork Reduction Act

Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must approve all “collections of information” by EPA. The Act defines “collection of information” as a requirement for “answers to * * * identical reporting or recordkeeping requirements imposed on ten or more persons* * *.” 44 U.S.C. 3502(3)(A). Because the FIP only applies to one company, the Paperwork Reduction Act does not apply.

E. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

This executive order applies to any rule that: (1) is determined to be “economically significant” as that term is defined in Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. A rule is economically significant if it is likely to have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. As discussed in the February 1999 FIP proposal, the costs to Astaris-Idaho of complying with the FIP are expected to be less than $50 million dollars. 64 FR at 7343. In addition, EPA does not believe the FIP will adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. Accordingly, EPA has determined that the FIP is not economically significant and thus not subject to Executive Order 13045.

F. Executive Order 13132: Federalism

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless EPA consults with State and local officials early in the process of developing the proposed regulation.

If EPA complies by consulting, Executive Order 13132 requires EPA to provide to the Office of Management and Budget (OMB), in a separately identified section of the preamble to the rule, a federalism summary impact statement (FSIS). The FSIS must include a description of the extent of EPA's prior consultation with State and local officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met. Also, when EPA transmits a draft final rule with federalism implications to OMB for review pursuant to Executive Order 12866, EPA must include a certification from the agency's Federalism Official stating that EPA has met the requirements of Executive Order 13132 in a meaningful and timely manner.

This FIP does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule only prescribes standards appropriate for one facility on an Indian Reservation, and thus does not directly affect any State. Moreover, it does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule. Nonetheless, as discussed in the February 1999 FIP proposal and the January 2000 supplemental proposal, EPA worked closely with representatives of the Tribes during the development of the FIP proposals. See 64 FR at 7312; 65 FR at 4485. EPA has continued to work with the Shoshone-Bannock Tribes in developing this final action.

G. Executive Order 13084: Consultation and Coordination With Indian Tribal Governments

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.” This Executive Order is discussed in more detail in the February 1999 FIP proposal. See 64 FR at 7312.

The FIP imposes obligations only on the owner or operator of Astaris-Idaho, and does not impose substantial direct compliance costs on the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule. As discussed in the February 1999 FIP proposal and the January 2000 supplemental proposal, EPA worked closely with representatives of the Shoshone-Bannock Tribes during the development of the FIP proposal. See 64 FR at 7312; 65 FR at 4485. EPA has continued to work with the Tribes in developing this final action.

H. National Technology Transfer and Advancement Act of 1995 (NTTAA)

Section 12(d) of NTTAA, Pub. L. No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary standards.

The proposed reference test methods for the emissions limitations and work practice requirements in this FIP are technical standards. The test methods for the emission limitations and work practice requirements in this FIP are test methods that have been promulgated by EPA. See Methods 201, 201A, and 202, 40 CFR part 51, appendix M; Methods 1, 2, 2C, 2D, 3, 3A, 4, 5, and 22 (in part), 40 CFR part 60, appendix A. Before proposing these reference test methods, EPA conducted a search to identify potentially applicable voluntary consensus standards. EPA did not identify any potentially applicable standards that could be used in place of Methods 201, 201A, and 202, 40 CFR part 51, appendix M; or Methods 1, 3, 3A, 4, 5, and 22 (in part), 40 CFR part 60, appendix A. EPA received no comments on either proposal that identified potentially-applicable voluntary consensus standards that could be used in place of the reference test methods proposed by EPA.

I. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804, however, exempts from section 801 the following types of rules: rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. section 804(3). EPA is not required to submit a rule report regarding this action under section 801 because this is a rule of particular applicability.

J. Petitions for Judicial Review

Under Section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 23, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 49

• Environmental protection
• Air pollution control
• Administrative practice and procedure
• Indians
• Intergovernmental relations
• Reporting and recordkeeping requirements

For the reasons set out in the preamble, title 40 , chapter I of the Code of Federal Regulations is amended as follows:

PART 49—TRIBAL CLEAN AIR ACT AUTHORITY

1. The authority citation for part 49 continues to read as follows:

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

Subpart A—Tribal Authority

2. Part 49 is amended by designating §§ 49.1 through 49.11 and 49.22 as subpart A and adding and reserving §§ 49.12 through 49.21 and 49.23 through 49.50 to subpart A.

3. Part 49 is amended by adding Subparts B through L as follows:

Subpart B—General Provisions

4. Part 49 is amended by adding Subpart M to read as follows:

Appendix to Subpart M—Alphabetical Listing of Tribes and Corresponding Sections