[Federal Register Volume 71, Number 72 (Friday, April 14, 2006)]
[Rules and Regulations]
[Pages 19432-19435]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3592]
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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 [email protected].
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
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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]
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