

[Federal Register: April 14, 2006 (Volume 71, Number 72)]
[Rules and Regulations]               
[Page 19432-19435]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14ap06-4]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2005-MO-0007; FRL-8158-7]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing our December 19, 2005, proposed finding that 
the Missouri State Implementation Plan (SIP) for lead is substantially 
inadequate to attain or maintain the National Ambient Air Quality 
Standard (NAAQS) for lead within the city limits of Herculaneum, 
Missouri. Pursuant to our authority in the Clean Air Act to call for 
plan revisions, the SIP has been found inadequate to attain and 
maintain the NAAQS within this portion of Jefferson County, as 
evidenced by three quarters of monitored violations in 2005. These 
violations occurred despite implementation of all control measures 
contained in the SIP, including all contingency measures established to 
address violations. EPA received comments on this proposal and is 
responding to these comments in this rulemaking. This rulemaking 
requires Missouri to revise the SIP to meet all of the applicable 
requirements of section 110 and part D of Title I of the Clean Air Act 
with respect to lead in the nonattainment area. The state is required 
to submit revisions to the SIP within twelve months of this final 
rulemaking. The SIP is required to 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 this final 
rule. If the state fails to submit a revised SIP by the deadline, it 
will be subject to sanctions under the provisions of the Clean Air Act.

DATES: This rule is effective on May 15, 2006.

[[Page 19433]]


ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R07-OAR-2005-MO-0007. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 

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

Protection Agency, Air Planning and Development Branch, 901 North 5th 
Street, Kansas City, KS. The Regional Office's official hours of 
business are Monday through Friday, 8 to 4:30 excluding Federal 
holidays. 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: Gwen Yoshimura at (913) 551-7073, or 
E-mail her at yoshimura.gwen@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or 
``our'' refer to EPA.

Table of Contents

Background and Submittal Information
    What is a SIP?
    What is the background for the finding?
EPA's Final Action
    What comments were received on the December 19, 2005, proposal 
and what is EPA's response?
    What action is EPA taking?

Background and Submittal Information

What is a SIP?

    Section 110 of the Clean Air Act (CAA or Act) requires states to 
develop air pollution regulations and control strategies to ensure that 
state air quality meets the national ambient air quality standards 
established by EPA. These ambient standards are established under 
section 109 of the CAA, and they currently address six criteria 
pollutants. These pollutants are: Carbon monoxide, nitrogen dioxide, 
ozone, lead, particulate matter, and sulfur dioxide. For areas which 
are not meeting the ambient standards for any of these pollutants, part 
D of Title I of the CAA contains additional SIP requirements which must 
be met in such areas.
    Each state must submit these regulations and control strategies to 
us for approval and incorporation into the Federally-enforceable SIP. 
Each Federally-approved SIP protects air quality primarily by 
addressing air pollution at its point of origin. These SIPs can be 
extensive, containing state regulations or other enforceable documents 
and supporting information such as emission inventories, monitoring 
networks, and modeling demonstrations.

What is the background for the finding?

    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 only currently operating primary lead smelter in the 
United States.
    The most recent SIP revisions for the Doe Run-Herculaneum area were 
approved in the Federal Register on May 16, 2002 (67 FR 18497). The SIP 
established August 14, 2002, as the attainment date for the area and 
satisfied the nonattainment area requirements in the CAA. 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. 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.
    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. 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.
    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 finds that the SIP is substantially inadequate to 
attain and maintain the NAAQS for lead.
    For more information on the background on Doe Run-Herculaneum and 
the basis for the finding, please refer to the Proposed Rule, published 
December 19, 2005 (70 FR 75093).

EPA's Final Action

What comments were received on the December 19, 2005, proposal and what 
is EPA's response?

    The proposed SIP call solicited comments on all aspects of the 
proposal, and specifically requested comments on the following proposed 
actions relating to the Missouri SIP for lead in 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.
    EPA received seven written comments in response to the proposed 
findings noted above. Five of the seven comments related to health 
concerns and general support for EPA's proposed action. One commenter 
voiced specific support of the proposed timeline and rule. One 
commenter supported a shorter timeframe for attainment of the standard. 
However, this commenter interpreted the proposed timeframe incorrectly, 
stating that it provided for three years for Doe Run to demonstrate 
attainment, instead of the proposed two. The comment is further 
addressed below. No commenters opposed finding the SIP substantially 
inadequate and finding that it must be revised as described in the 
proposal (proposed actions 1 and 2 identified above). With the 
exception of the aforementioned commenter (who advocates for a shorter 
timeframe) none of the commenters specifically disputed the proposed 
timeframe for SIP submission and attainment of the standard.
    EPA sets forth below a summary of the comments received and our 
responses.

Issue 1: Timeframe

    Comment 1: One commenter states that the proposed rule would 
provide one year for SIP development and then another two years before 
attainment

[[Page 19434]]

must be demonstrated, totaling three years before attainment must be 
demonstrated. The commenter states that this time period is too long.
    Response to Comment 1: The time period outlined in the comment is 
incorrect. The timeframe proposed in the SIP call provides one year for 
SIP development following date of signature of the final rule, and two 
years after signature of the final rule to attain the standard. EPA 
based this timeframe on available information as described in the 
proposed SIP call finding (70 FR 75093, 75094, 75095). In particular, 
EPA explained that the applicable requirement of the CAA, section 
110(k)(5), provides that after making a finding of substantial 
inadequacy, EPA is authorized to establish a reasonable time, not to 
exceed 18 months, for the state to correct the inadequacy. EPA also 
stated that a SIP submittal date of less than 18 months would be 
reasonable since Missouri had been working to address the violations of 
the lead standard since at least April 2005. In its comment supporting 
the 12-month submittal deadline, Missouri stated that because of 
administrative requirements under state law, Missouri ordinarily needs 
18 months to complete rulemaking. In this instance, however, Missouri 
agreed that 12 months is a reasonable deadline for submittal of the 
revisions needed to correct the deficiencies.\1\ The commenter did not 
provide any information indicating that the revisions could be 
submitted in a shorter timeframe. Therefore, for the reasons set forth 
above and in the proposal, we have determined that the submittal date 
for the SIP required by this rulemaking will be 12 months from the date 
of signature of this final rule.
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    \1\ In the proposal, EPA identified four plan elements which 
would be needed to correct the deficiency. These included a revised 
emissions inventory, a modeled attainment demonstration, adopted 
control measures shown to be necessary for attainment, and 
contingency measures.
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    With respect to the attainment date for the Herculaneum area, we 
noted in the proposal that the attainment date was August 2002,\2\ and 
that the attainment date must be adjusted because it has elapsed.\3\ 
For reasons discussed in the proposal,\4\ including the fact that the 
state had already identified several control measures which could be 
implemented in the near term, EPA proposed an attainment date of no 
later than two years from the date of signature of the final rule. In 
its comments the state supported this date. The commenter did not 
provide any information indicating that attainment could be achieved 
sooner.\5\
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    \2\ Five years after EPA notified the state that the area had 
failed to attain the standard, consistent with the requirements of 
sections 179(d)(3) and 172(a)(2).
    \3\ Section 110(k)(5) and 172(d).
    \4\ 70 FR 75093, 75095.
    \5\ We note that the CAA requires that the attainment date must 
be as expeditiously as practicable, so that if in the course of SIP 
development it is determined that an attainment date less than two 
years after the date of signature is practicable, the state must 
identify such earlier attainment date in its SIP submittal.
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    Based on the available information, EPA is establishing an 
attainment date requiring attainment as expeditiously as practicable, 
but no later than two years following signature of this final rule. As 
no information has been presented showing that this timeframe is not 
reasonable, EPA is adopting the timeframe stated in the proposal.

Issue 2: Health Effects of Lead

    Comment 2: Several commenters described the adverse health effects 
of lead emissions.
    Response to Comment 2: EPA recognizes that lead is a human health 
concern. Today's action will require the state to address lead 
emissions by revising the SIP to provide for attainment of the lead 
standard. EPA believes that this action will result in reductions in 
lead emissions in the area.

Issue 3: Use of Other EPA Authorities

    Comment 3: One commenter requests that EPA use its emergency 
authority under section 303 of the Clean Air Act to order Doe Run to 
cease operation until an acceptable SIP is submitted and approved.
    Response to Comment 3: As indicated in the proposal, the scope of 
this rulemaking is to determine whether the Missouri SIP for lead is 
substantially inadequate and, if so, to determine the appropriate 
schedule for the state to correct the inadequacies. Use of EPA's 
authority under section 303 is therefore outside the scope of this 
rulemaking.
    Comment 4: One commenter (the Missouri Department of Natural 
Resources) requests that EPA include a provision in the SIP call which 
would place more of the responsibility for responding to the SIP call 
on the Doe Run Company. The commenter suggests that this could be 
accomplished by a ``parallel'' preparation of a Federal Implementation 
Plan (FIP) in case Doe Run does not cooperate with the state in timely 
development of a SIP.
    Response to Comment 4: EPA intends to monitor the state's progress 
in meeting the SIP submittal deadline and to take appropriate action to 
meet its statutory obligations, including promulgation of a Federal 
plan if the state fails to submit an approvable SIP. Under section 
110(c)(1) of the CAA, EPA would be required to promulgate a Federal 
plan no later than two years after EPA finds that the state has failed 
to submit a plan, unless EPA approves a SIP revision before the Federal 
plan is promulgated. Promulgation of a Federal plan, however, is 
outside the scope of this SIP call, and would be addressed in a 
separate rulemaking.

Issue 4: NAAQS

    Comment 5: One commenter states that there is question as to 
whether the existing National Ambient Air Quality Standard (NAAQS) for 
lead reflects current scientific knowledge and protects public health 
with an adequate margin of safety.
    Response to Comment 5: The adequacy of the lead NAAQS is outside 
the scope of this SIP call. EPA is currently under a court-ordered 
deadline to complete review of the lead NAAQS (which review includes an 
assessment of current scientific knowledge) no later than September 1, 
2008. More information on the lead NAAQS review may be found at http://www.epa.gov/ttn/naaqs/standards/pb/s_pb_index.html
.


What action is EPA taking?

    For the reasons stated above and in the proposal, EPA is finalizing 
the following actions relating to the Missouri SIP for lead in the 
Herculaneum nonattainment area:
    1. Finding that the SIP is substantially inadequate to attain and 
maintain the NAAQS for lead in the area;
    2. Requiring 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. Requiring the state to submit revisions to the SIP no later than 
April 7, 2007;
    4. Requiring that the SIP provide for attainment of the lead NAAQS 
in the Herculaneum nonattainment area as expeditiously as practicable, 
but no later than April 7, 2008.

Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
final 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). I certify 
that this final action will not have a significant economic impact on a 
substantial number of small

[[Page 19435]]

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
    EPA has determined that this final 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 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 final 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 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 SIP call 
requires Missouri to submit only those revisions necessary to address 
the SIP deficiency and applicable CAA requirements.
    Executive Order 13045: ``Protection of Children from Environmental 
health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under 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. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. EPA 
interprets Executive Order 13045 as applying only to those regulatory 
actions that are based on health or safety risks, such that the 
analysis required under section 5-501 of the Order has the potential to 
influence the regulation. This rule is not subject to Executive Order 
13045 because it requires attainment of a previously promulgated 
health-based Federal standard. In addition, it is not economically 
significant.
    Section 12 of the National Technology Transfer and Advancement Act 
of 1995 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 final 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: April 7, 2006.
James B. Gulliford,
Regional Administrator, Region 7.
[FR Doc. 06-3592 Filed 4-13-06; 8:45 am]

BILLING CODE 6560-50-P
