

[Federal Register: December 19, 2005 (Volume 70, Number 242)]
[Proposed Rules]               
[Page 75093-75096]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19de05-27]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2005-MO-0007; FRL-8009-6]

 
Finding of Substantial Inadequacy of Implementation Plan; Call 
for Missouri State Implementation Plan Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Pursuant to our authority in the Clean Air Act to call for 
plan revisions, EPA is proposing to find that the Missouri State 
Implementation Plan for lead is substantially inadequate to attain or 
maintain the National Ambient Air Quality Standard for lead in the 
portion of Jefferson County within the city limits of Herculaneum, 
Missouri. The specific State Implementation Plan deficiencies, which 
form the basis for this proposed finding, are described below. If EPA 
finalizes this proposed finding of substantial inadequacy, Missouri 
will be required to revise its State Implementation Plan to correct 
these deficiencies by a date which will be specified in the final rule. 
If the state fails to submit a revised State Implementation Plan by the 
deadline, it will be subject to sanctions under the provisions of the 
Clean Air Act.

DATES: Comments must be received on or before January 18, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2005-MO-0007, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 

submitting comments.
    2. E-mail: algoe-eakin.amy@epa.gov.
    3. Mail: Amy Algoe-Eakin, Environmental Protection Agency, Air 
Planning and Development Branch, 901 North 5th Street, Kansas City, 
Kansas 66101.
    4. Hand Delivery or Courier. Deliver your comments to: Amy Algoe-
Eakin, Environmental Protection Agency, Air Planning and Development 
Branch, 901 North 5th Street, Kansas City, Kansas 66101.
    Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-
2005-MO-0007. EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://www.regulations.gov, including any personal information 

provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov 

or e-mail. The http://www.regulations.gov Web site is an ``anonymous access'' 

system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through 
http://www.regulations.gov, your e-mail address will be automatically captured 

and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses.
    Docket. All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 

information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Environmental Protection 

Agency, Air Planning and Development Branch, 901 North 5th Street, 
Kansas City, Kansas. EPA requests that you contact the person listed in 
the FOR FURTHER INFORMATION CONTACT section to schedule your 
inspection. The interested persons wanting to examine these documents 
should make an appointment with the office at least 24 hours in 
advance.

FOR FURTHER INFORMATION CONTACT: Amy Algoe-Eakin at (913) 551-7942 or 
by e-mail at algoe-eakin.amy@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This section provides 
additional information by addressing the following questions:

What is the background for Doe Run-Herculaneum?
What is the basis for the proposed finding?
How can Missouri correct the inadequacy and when must the correction 
be submitted?
What action is EPA proposing?

What is the background for Doe Run-Herculaneum?

    EPA established the National Ambient Air Quality Standard (NAAQS) 
for lead on October 5, 1978 (43 FR 46246). The standard for lead is set 
at a level of 1.5 micrograms ([mu]g) of lead per cubic meter 
(m3) of air, averaged over a calendar quarter.
    During the 1980s and 1990s, Missouri submitted and EPA approved a 
number of SIP revisions for lead to address ambient lead problems in 
various areas of the state. One such area was in Herculaneum, Missouri, 
which is the site of the Doe Run primary lead smelter. Doe Run-
Herculaneum is the largest and only currently operating primary lead 
smelter in the United States.
    The city of Herculaneum was designated nonattainment for lead in 
1991 (40 CFR 81.326), pursuant to new authorities provided by the Clean 
Air Act Amendments of 1990 (CAA or Act), and the state became subject 
to new State Implementation Plan (SIP) requirements in part D, Title I 
of the Act, added by the 1990 amendments. A revised SIP meeting the 
part D requirements was subsequently

[[Page 75094]]

submitted in 1994. The plan established June 30, 1995, as the date by 
which the Herculaneum area was to have attained compliance with the 
lead standard. However, the plan did not result in attainment of the 
standard and observed lead concentrations in the Herculaneum area 
continued to show violations of the standard. Therefore, on August 15, 
1997, after taking and responding to public comments, EPA published a 
notice in the Federal Register finding that the Herculaneum 
nonattainment area had failed to attain the lead standard by the June 
30, 1995, deadline (62 FR 43647).
    On January 10, 2001, Missouri submitted a revised SIP to EPA for 
the Doe Run-Herculaneum area. The SIP revision was found complete on 
January 12, 2001. The SIP established August 14, 2002, as the 
attainment date for the area and satisfied the nonattainment area 
requirements in the CAA. EPA approved the 2001 SIP on May 16, 2002 (67 
FR 18497). The SIP contained control measures to reduce lead emissions 
to attain the standard, and contingency measures, as required by 
section 172(c)(9) of the Act, to achieve emission reductions in the 
event of future violations. Control measures included: (1) The use of a 
standard operating procedures manual for all baghouses used to control 
process, process fugitive, or fugitive dust emission sources for lead; 
(2) installation of emission control equipment; (3) enclosure and 
ventilation projects to reduce lead emissions; (4) process throughput 
restrictions and hours of operation limitation; and (5) work practice 
standards. In addition, the plan outlined contingency measures that 
would be implemented in the event that there were future violations of 
the lead standard in Herculaneum. The first contingency measure 
included enclosures and installation of additional process controls. 
This measure was to be implemented within six months following the 
calendar quarter in which the violation occurred. If there was a second 
violation of the quarterly lead standard, after the implementation of 
the initial contingency measure, Doe Run-Herculaneum would curtail 
production utilizing one of three emission and/or production curtailing 
methods: Method (1), reduce main non-stack emissions by 20 percent; 
Method (2), limit production to 50,000 short tons/quarter of refined 
lead produced; and Method (3), adopt Method 1 and limit production of 
refined lead production based upon the following formula:

P = 50,000 + (500 x (1-A/E) x 100)
P = refined lead production in short tons/quarter;
A = the aggregate actual quarterly emissions from all fugitive and 
stack lead emission sources at the facility in tons, except from the 
main stack (30001);
E = the aggregate estimated quarterly emissions from all fugitive and 
stack lead emission sources at the facility in tons; except from the 
main stack; where A/E canot be less than .8 or more than 1.0.

    Since the April 16, 2002, Federal Register rule, which approved the 
state implementation plan revisions, Doe Run-Herculaneum has 
implemented both of these contingency measures. The first contingency 
measure was implemented by Doe Run, prior to any actual violations of 
the lead NAAQS. Specifically, Doe Run completed the following measures 
to address the first contingency measure requirement. Doe Run completed 
modification to the cooler baghouse dilution air intake on December 31, 
2002, completed modification to roof monitor in the Sinter Plant Mixing 
Room with passive filters on October 31, 2003, completed enclosure of 
north end of the railcar unloader building to prevent wind blow-through 
fugitive emissions on April 31, 2004, completed enclosure of the north 
end number 1 trestle and bin storage area on July 31, 2002, and 
completed modification of inlet ducting to number 3 baghouse by 
removing number 12 fan restriction from ducting on December 31, 2001. 
The second contingency measure was implemented as a result of the 
second violation of the lead standard in the second calendar quarter of 
2005. The option selected by Doe Run-Herculaneum, under the second 
contingency measure, is to limit production to 50,000 tons per quarter 
of finished lead.
    During the first three calendar quarters of 2005, Doe Run's 
production was 42,289 tons of finished lead, 29,757 tons of finished 
lead, and 40,619 tons of finished lead, respectively. This production 
is below the production limit of 50,000 tons per quarter of finished 
lead, which was required by the second contingency measure.

What is the basis for the proposed finding?

    After the August 2002 attainment date, the Herculaneum area 
monitored attainment of the lead standard for 10 consecutive calendar 
quarters. However, air quality monitors in the area reported 
exceedances of the standard in the first three calendar quarters in 
2005 even though Doe Run has implemented all control measures contained 
in the 2001 SIP revision. Doe Run has also implemented all of the 
contingency measures required by the current SIP.
    Doe Run and the Missouri Department of Natural Resources (MDNR) 
operate co-located monitors at the Broad Street monitoring location (in 
addition to other lead monitoring locations in the nonattainment area) 
and both sample on a daily basis. In the first calendar quarter of 
2005, Doe Run's monitor recorded a quarterly value of 1.928 [mu]g/m\3\, 
and MDNR's monitor recorded a quarterly value of 1.877 [mu]g/m\3\. In 
the second calendar quarter of 2005, Doe Run's monitor recorded a 
quarterly value of 1.615 [mu]g/m\3\. In the third calendar quarter of 
2005, MDNR's monitor recorded a violation of 1.60 [mu]g/m\3\. These 
monitored values have been quality assured by MDNR and properly entered 
into the Air Quality System, EPA's repository for ambient air 
monitoring data. The values for each of the three quarters exceed the 
1.5 [mu]g/m\3\ lead standard, and therefore constitute violations of 
the standard for each quarter. Although the violation recorded in the 
first calendar quarter of 2005 is the first violation of the lead 
standard in Herculaneum after ten consecutive calendar quarters of 
``clean'' monitoring data, the Broad Street monitors, in 2003, 
experienced quarterly monitoring values that were close to the 
standard. In fact, in the first calendar quarter of 2003, both the Doe 
Run and the MDNR monitors at Broad Street, recorded values of 1.464 
[mu]g/m\3\ and 1.491 [mu]g/m\3\, respectively.
    As such, because the violations recorded in 2005 have occurred 
despite implementation of all the control measures contained in the 
SIP, including all contingency measures that were to address the 
violations, EPA believes the SIP is substantially inadequate to attain 
and maintain the NAAQS for lead.

How can Missouri correct the inadequacy and when must the correction be 
submitted?

    Section 172(d) of the CAA provides that a plan revision required by 
a SIP call under section 110(k)(5) must correct the deficiencies 
specified by EPA, and must meet all other applicable plan requirements 
under section 110 and Part D of Title I of the CAA. EPA believes that 
MDNR must submit several specific plan elements to EPA in order to 
correct the inadequacy of the SIP. These specific elements are: (1) A 
revised emissions inventory; (2) a modeling demonstration showing what 
reductions will be needed to bring the area back into attainment of the 
lead NAAQS; (3)

[[Page 75095]]

adopted measures to achieve reductions determined necessary by the 
attainment demonstration, with enforceable schedules for implementing 
the measures as expeditiously as practicable; and (4) contingency 
measures meeting the requirements of Section 172(c)(9) of the CAA.
    Section 110(k)(5) of the CAA provides that after EPA makes a 
finding that a plan is substantially inadequate, it may establish a 
reasonable deadline for correcting the deficiencies, but the date 
cannot be later than 18 months after the state is notified of the 
finding. Consistent with this provision, we propose to require the 
submittal within twelve months following any final finding of 
substantial inadequacy. We propose that the twelve-month period would 
begin on the date of signature of the final rulemaking. The state and 
company officials have been aware of the need for a plan revision for 
several months. The state issued notices to the Doe Run Company on 
April 22, 2005, September 8, 2005, and November 9, 2005. As a result of 
these notices, the state and company officials have held informal 
discussions to develop new control measures. Thus, based on the fact 
that discussions have already begun on how to correct the violations 
and because of the availability of the technical information from past 
SIP actions regarding emissions controls and because lead is a 
significant public health concern, we believe that twelve months is a 
reasonable time period for submission of the revisions. EPA seeks 
comments on the proposed deadline and on whether an alternate deadline 
should be established.
    Sections 110(k)(5) and 172(d) also provide that EPA may adjust any 
deadlines with respect to SIPs that are applicable under the Act, 
except that the attainment date may not be adjusted unless it has 
elapsed. For lead, the attainment date is as expeditious as 
practicable, but no later than five years after the area is designated 
nonattainment, or, if applicable, no later than five years after the 
date EPA notifies the state that the area has failed to attain the 
standard under section 179(c). See section 192(a) and sections 
179(d)(3) and 172(a)(2). Neither of these deadlines is applicable to a 
finding under section 110(k)(5). For Herculaneum, the attainment date 
was August 2002 (five years after the state was notified that the area 
failed to attain). Because the attainment date has elapsed, and the 
area is currently not attaining the standard, the attainment date must 
be adjusted, pursuant to section 110(k)(5) and section 172(d), and the 
state must provide for attainment as expeditiously as practicable. In 
addition, because there is considerable technical information available 
from past SIP measures, and discussions between the Doe Run Company and 
MDNR have already begun on control measures which can be implemented in 
the near term, and the significance of lead as a public health concern, 
we propose to establish an attainment date which is two years from the 
date of signature of a final rulemaking. We also believe that the 
attainment date should not be adjusted to provide more than two years 
because the area is well beyond the 2002 attainment date. We request 
comment on whether an alternative attainment date should be 
established.

What action is EPA proposing?

    EPA proposes the following actions relating to the Missouri SIP for 
lead for the Herculaneum nonattainment area:
    1. Find that the SIP is substantially inadequate to attain and 
maintain the NAAQS for lead in the area;
    2. Require that Missouri revise the SIP to meet all of the 
applicable requirements of section 110 and part D of Title I of the Act 
with respect to lead in the nonattainment area;
    3. Require the state to submit revisions to the SIP within twelve 
months of the final rulemaking;
    4. Require that the SIP provide for attainment of the lead NAAQS in 
the Herculaneum nonattainment area as expeditiously as practicable, but 
no later than two years after issuance of the final rule.
    We are soliciting comments on these proposed actions. Final 
rulemaking will occur after consideration of any comments.

Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). The 
Administrator certifies that this proposed action will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
    EPA has determined that this proposed action does not include a 
Federal mandate that may result in estimated costs of $100 million or 
more to either state, local, or tribal governments in the aggregate, or 
to the private sector. This action will require the state of Missouri 
to revise laws and regulations to meet the NAAQS for lead. This 
requirement, even if considered a Federal mandate, would not result in 
aggregate costs over $100 million to either the state or local 
districts. It is unclear whether a requirement to submit a SIP revision 
would constitute a Federal mandate. The obligation for a state to 
revise its SIP that arises out of sections 110(a) and 110(k)(5) of the 
CAA is not legally enforceable by a court of law, and at most is a 
condition for continued receipt of highway funds. Therefore, it is 
possible to view an action requiring such a submittal as not creating 
any enforceable duty within the meaning of section 421(5)(9a)(I) of the 
Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 658 (a)(I)). Even if it 
did, the duty could be viewed as falling within the exception for a 
condition of Federal assistance under section 421(5)(a)(i)(I) of UMRA 
(2 U.S.C. 658 (5)(a)(i)(I)).
    This proposed action also does not have tribal implications because 
it will not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes, as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000).
    This action also does not have Federalism implications because it 
does not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999), because it is in keeping with the relationship and the 
distribution of power and responsibilities between EPA and the states 
as established by the CAA. This proposed SIP call is required by the 
CAA because the current SIP is inadequate to attain the lead NAAQS. 
Missouri's direct compliance costs will not be substantial because the 
proposed SIP call requires Missouri to submit only those revisions 
necessary to address the SIP deficiency and applicable CAA 
requirements.
    This proposed action also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    Section 12 of the National Technology Transfer and Advancement Act 
of 1995

[[Page 75096]]

requires Federal agencies to evaluate existing technical standards when 
developing a new regulation. To comply with the National Technology 
Transfer and Advancement Act, EPA must consider and use ``voluntary 
consensus standards'' (VCS) if available and applicable when developing 
programs and policies unless doing so would be inconsistent with 
applicable law or otherwise impractical. In making a finding of a SIP 
deficiency, EPA's role is to review existing information against 
previously established standards (in this case, what constitutes a 
violation of the lead standard). In this context, there is no 
opportunity to use VCS. Thus, the requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) do not apply.
    This proposed action does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Lead, Particulate matter, Reporting and recordkeeping 
requirements.

    Dated: December 9, 2005.
James B. Gulliford,
Regional Administrator, Region 7.
[FR Doc. 05-24201 Filed 12-16-05; 8:45 am]

BILLING CODE 6560-50-P
