[Federal Register Volume 61, Number 234 (Wednesday, December 4, 1996)]
[Proposed Rules]
[Pages 64304-64307]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30473]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 61, No. 234 / Wednesday, December 4, 1996 /
Proposed Rules
[[Page 64304]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NE-011-1011; FRL-5655-8]
Approval and Promulgation of Implementation Plans; State of
Nebraska
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: With this action, the EPA is proposing to approve the Omaha
lead emission control plan submitted by the state of Nebraska on August
28, 1996. The plan was submitted by the state to satisfy certain
requirements under the Clean Air Act (CAA) (the Act) to reduce lead
emissions sufficient to bring the Omaha area into attainment with the
lead National Ambient Air Quality Standard (NAAQS).
Due to certain complications and delays related to the development
and submission of the state's plan, the EPA is also announcing with
this document the availability for review of a draft Federal
Implementation Plan (FIP), which reduces lead emissions in the Omaha
lead nonattainment area. A Federal plan will be promulgated in the
absence of an approvable state plan.
DATES: Comments must be received on or before January 3, 1997.
ADDRESSES: Comments on the proposed approval of the state plan, and/or
requests for additional information on this proposal, or copies of the
draft FIP may be mailed to: Josh Tapp, Environmental Protection Agency,
Air Branch, 726 Minnesota Avenue, Kansas City, Kansas 66101.
FOR FURTHER INFORMATION CONTACT: Josh Tapp at (913) 551-7606 or Royan
Teter at (913) 551-7609.
SUPPLEMENTARY INFORMATION:
I. Background
Currently, the only significant source of lead contributing to
violations of the lead NAAQS is a primary lead refinery owned and
operated by the American Smelting and Refining Company (Asarco). The
refinery purifies lead bullion from a purity of approximately 97
percent to 99.9 percent lead. The facility's refining capacity is
approximately 120,000 short tons of refined lead per year.
The original Omaha lead State Implementation Plan (SIP) was
approved by the EPA on August 3, 1987 (52 FR 28694). The required
control measures were in place by February 1988. Controls included
improved methods for unloading baghouse dust, improved ventilation in
the refinery building, pavement of open areas, and limits on production
to 90 percent of maximum. Later that same year, several violations of
the lead standard were recorded.
Because of continuing violations of the standard, the EPA made a
call for a lead SIP revision in August 1990. On January 6, 1992, the
EPA designated the area surrounding the facility as nonattainment for
lead. (See 56 FR 56694, dated November 6, 1991.) The actual area
designated as nonattainment for lead is located in the downtown area of
the city of Omaha, Nebraska. The northern boundary of the nonattainment
area is defined by Avenue H and the Iowa-Nebraska border. The western
boundary of the nonattainment area is defined by Eleventh Street. The
eastern boundary of the nonattainment area is defined by the Missouri
River. The southern boundary of the nonattainment area is defined by
Jones Street. As a result of this designation, the SIP submission date
was extended to July 6, 1993, but the state was required to meet the
additional requirements in part D of title I of the CAA.
Early in 1991, Asarco undertook a study to develop an emissions
inventory based upon field studies and the use of two independently
based air quality models (receptor and dispersion). This approach was
necessary to more clearly identify which of the facility's processes
were contributing to violations of the lead NAAQS so as to focus the
control strategy development on the appropriate sources. A similar
study was already underway at another facility in East Helena, Montana.
On July 6, 1993, Asarco submitted a control strategy to the EPA and
the Nebraska Department of Environmental Quality (NDEQ). The primary
control measure in this strategy focused on the control of fugitive
emissions from the refinery building by utilizing a total enclosure and
installing a sophisticated ventilation system equipped with high
efficiency fabric filtration systems (baghouses).
Due to the late control strategy submission by Asarco, the state
was unable to make the required SIP submission by July 6, 1993. The EPA
sent a letter to the Governor of Nebraska on August 2, 1993, notifying
him that the state had failed to make the required submission. This
document initiated sanctions clocks in accordance with section 179 of
the CAA and the FIP clock in accordance with section 110 of the CAA.
Under section 179 of the CAA, the EPA must impose sanctions on a
nonattainment area for which the state has failed to submit a plan
which has been determined complete by the EPA. The first of two
sanctions must be implemented within 18 months after the date of the
finding (or in this case, not later than January 2, 1995), and the
second sanction must be implemented within 6 months after the
implementation of the first sanction (or in this case, not later than
August 2, 1995).
On August 4, 1994, (59 FR 39832), the EPA published a rulemaking
which identifies the order of sanctions as follows: the first sanction
to be imposed is the 2:1 offset sanction which requires 2:1 offsets for
emission increases of the nonattainment pollutant from certain new or
modified major sources within the nonattainment area; the second
sanction to be imposed is the highway funding sanction. Under this
sanction, Federal highway funds are withheld from the nonattainment
area, unless the funds are for exempt projects.
Furthermore, section 110(c) of the Act obligates the EPA to
promulgate a FIP within two years of a finding that the state has
failed to submit the required plan. The EPA must approve a plan
submitted by the state in order to stop the FIP clock.
The state transformed Asarco's July 6, 1993, control strategy into
an enforceable Compliance Order and submitted it to the EPA with
supporting documentation on December 22, 1993. Shortly thereafter,
Asarco filed an Administrative Appeal of the Order. The legal effect of
the Appeal under
[[Page 64305]]
state law was to stay enforcement of the Compliance Order pending
resolution of the Administrative Appeal. Because of the stay, the EPA
determined that the SIP was incomplete, by letter dated June 24, 1994.
On June 2, 1995, the Director issued a decision on the Appeal and
on June 21, 1995, the state submitted a plan which was revised in
accordance with the Director's decision.
The EPA reviewed this plan and found it complete on July 13, 1995,
stopping the 2:1 offset sanction and stopping the Federal highway
funding sanction clock prior to its expiration on August 2, 1995.
On June 30, 1995, Asarco filed a petition for review of the
Compliance Order with the District Court of Lancaster County, Nebraska.
On November 15, 1995, prior to the Court's decision on Asarco's June 30
appeal, Asarco submitted to the state a revised control strategy which
relies on a partial shutdown and reconfiguration of the facility. The
state revised Compliance Order 1520 on June 6, 1996, to reflect the
revised control strategy and submitted it to the EPA on August 28,
1996. Although Asarco's appeal is still pending, the EPA is proposing
action on the August 28, 1996, submittal by the state of Nebraska.
However, due to the fact that the state's submission of an
enforceable plan has been delayed significantly beyond the deadlines
mandated by the Act, and because the appeal is still pending, the EPA
is announcing the availability for public review of a draft FIP which
addresses lead emissions in the Omaha lead nonattainment area. Should
Nebraska's latest submission become unenforceable or otherwise be
rendered unapprovable, the EPA intends to promulgate a FIP to bring the
area into attainment as soon as practicable. Prior to promulgation of a
FIP, the EPA would issue a notice of proposed rulemaking, and consider
any comments submitted as a result of that document, prior to taking
final action.
II. Criteria for Approval
The state's June 6, 1996, submission was reviewed using the
criteria established by the CAA. The requirements for all SIPs are
contained in section 110(a)(2) of the CAA. Subpart 1 of part D of title
I of the CAA, and in particular section 172(c), specifies the
provisions necessitated by designation of an area as nonattainment for
any of the NAAQS. Further guidance and criteria are set forth in
subpart 5 of part D, the ``General Preamble for the Implementation of
Title I of the Clean Air Act Amendments of 1990'' (57 FR 13498), and in
the ``Addendum to the General Preamble for the Implementation of Title
I of the Clean Air Act Amendments of 1990'' (58 FR 67748).
III. Review of State Submittal
A. Control Strategy
The control strategy must contain provisions to ensure that
Reasonably Available Control Technology (RACT), including Reasonably
Available Control Measures (RACM), for area sources are implemented
(see section 172(c)(1) of the CAA). See 57 FR 13549 and 58 FR 67748 for
the EPA's interpretation of RACM and RACT requirements.
The state's selection of control strategies for the SIP was based
on an evaluation of controls provided to the state by Asarco and its
contractors. In this study, Asarco evaluated 15 fugitive emission
control strategies and 42 process and stack-related control strategies.
Asarco selected what it considered to be the most implementable and
cost-effective options from this list which would bring the area into
attainment with the lead NAAQS. The state concurred with Asarco's
assessment that these controls constituted RACT. Detailed information
regarding Asarco's control option selection process can be found in the
EPA's TSD.
The attainment modeling assisted Asarco and the state in focusing
the control strategy by indicating which sources or groups of sources
were the greatest contributors to the ambient concentrations. In this
case, emission rates were not necessarily correlated with the magnitude
of the monitor impact. In other words, some of these sources had
relatively low emissions rates, but they had a high propensity for
impacting ambient air near the facility. Four of the largest
contributors to ambient air concentrations which are the focus of the
control strategy are: (1) The refinery building emissions; (2) the
residue department fugitive emissions; (3) the bismuth department
fugitive emissions; and (4) outdoor roadway and stockpile fugitive
emissions.
The refinery building is the primary production site for lead at
the affected facility. This building as it is currently constructed
contains uncontrolled roof monitors, open air louvers along the east
and west side of the building, and is open at the north end. Lead
emissions from processes occurring within the building are permitted to
escape from these openings. This plan will require the shutdown of the
refinery department and the associated dore department, thereby
eliminating all emissions from these processes.
The main function of the residue department is to reprocess by-
product materials such as softener skims, caustic skims, dore slag and
reverb black slag. Residue department emissions orginate mainly from
the cupola furnace and residue kettle.
This plan will require the installation of a secondary hood over
the top of the cupola furnace to capture fugitive emissions which
escape during furnace charging and smelting. Additionally, existing
ventilation hoods and ductwork which control emissions during tapping
of the cupola furnace are required to be replaced with a ventilation
system which provides more effective emissions capture. The residue
kettle ventilation system is also required to be replaced with a
ventilation system which provides more effective capture of emissions.
The main function of the bismuth department is to facilitate the
recovery of bismuth and dore by removing lead oxide otherwise known as
``litharge.'' Two cupel furnaces in the bismuth department facilitate
much of this recovery. Emissions originate from furnace process gases
which escape capture by local exhaust hoods. Other sources of emissions
include: furnace charging, litharge skimming, litharge handling, and
metal tapping. This plan requires the replacement of existing local
exhaust hoods with a ventilation design which provides more effective
emissions capture. Automatic dampers and temperature controls are
required to be installed for the cupel furnaces to ensure adequate
furnace ventilation and to prevent the overheating and overpressurizing
of the furnaces. Water-cooled vibrating tables which allow litharge
skimming to be controlled at a slow, steady rate are also required and
will result in reduced process emissions.
Finally, the plan requires compliance with state and federally
approved work practices to minimize fugitive emissions. The work
practice manuals were submitted as part of the plan. Fugitive emissions
occur throughout the affected facility and originate from several types
of sources. Outdoor stockpiles, lead laden roadways, and baghouse
unloading are three major fugitive sources contributing to ambient air
lead concentrations. Outdoor stockpiles contribute to high ambient lead
concentrations from wind entrainment. Roadways contribute to high
ambient lead concentrations from vehicle track-out and from traffic-
induced reentrainment of lead dust on roads. Baghouse unloading
involves the
[[Page 64306]]
handling of fine lead dust which is readily reentrained by wind and
mechanical activity.
The Administrative Order and associated work practices require that
the use of outdoor stockpiles be minimized, and that tarps or chemical
stabilizers and concrete road barriers be used to maintain stockpile
integrity and to minimize related fugitive emissions. The plan also
requires that in-plant roadways be swept frequently in order to remove
lead dust from trafficways. Finally, it requires special procedures to
be followed for other critical activities such as baghouse unloading.
The work practices for baghouse unloading require the use of vacuum
ports prior to opening baghouse cellar doors. They also require
baghouses to be unloaded under light wind conditions only, and they
require the use of wind screens for the unloading of the smelter
baghouse.
B. Attainment Demonstration
Section 192(a) of the CAA requires that SIPs must provide for
attainment of the lead NAAQS as expeditiously as practicable, but not
later than five years from the date of an area's nonattainment
designation. The lead nonattainment designation for portions of Omaha
was effective on January 6, 1992; therefore, the latest attainment date
permissible by statute is January 6, 1997.
The Industrial Source Complex Short-Term Model was used to
demonstrate attainment and maintenance of the lead NAAQS. The
procedures recommended in the EPA's Guideline on Air Quality Models
(Revised), EPA 450/2-78-027R, July 1986, and Supplement A to the
Guideline on Air Quality Models (Revised), EPA 450/2-78-027R, July
1987, were followed with the exception that volume source parameters
for Asarco stockpiles were varied according to wind direction. These
exceptions were approved by the EPA prior to the completion of the
modeling. See the TSD for more information.
C. Emission Inventory and Air Quality Data
Section 172(c)(3) of the CAA requires that nonattainment plan
provisions include a comprehensive, accurate, current inventory of
actual emissions from all sources of relevant pollutants in the
nonattainment area.
As was mentioned in the section entitled ``Background,'' Asarco,
the state, and the EPA undertook a comprehensive study to develop an
accurate baseline emission inventory and dispersion model. This
inventory was quantified through stack testing, evaluation of equipment
and procedures, the EPA emission estimation methods, and engineering
judgment. Receptor modeling was used to confirm its accuracy. The
attainment emission inventory was derived from the baseline inventory
with the control strategy applied.
The state submittal provides a historical summary of the air
quality data for the Omaha area collected from 1984 through the most
current quarter.
D. Reasonable Further Progress (RFP)
The SIP must provide for RFP (see section 172(c)(2) of the Act).
Paragraph 11 of the state's Compliance Order specifies an
implementation schedule which requires a logical stepwise
implementation of emissions control projects. This schedule results in
a steady decrease of lead emissions through the implementation of the
last projects which are scheduled to be completed by December 31, 1996.
The EPA believes that the RFP demonstration meets the requirements of
section 172(c)(2) and the relevant guidelines in the ``Addendum to the
General Preamble for the Implementation of Title I of the Clean Air Act
Amendments of 1990'' (58 FR 67748).
E. New Source Review (NSR)
Section 172(c)(5) requires that nonattainment areas be subject to
the NSR permitting requirements of section 173. Nebraska NSR
regulations were originally approved pursuant to part D of the Act on
July 23, 1984. The 1990 Amendments to the Act added other requirements
pursuant to the review and approval of new and modified sources.
Nebraska incorporated these requirements into its regulations, and the
EPA approved this SIP revision on January 4, 1995 (60 FR 372).
Therefore, the state's rules presently meet the requirements of
sections 172(c)(5) and 173.
The state also has NSR provisions governing minor sources and
``minor'' modifications at major sources. These provisions were
recently updated by the state and approved pursuant to section 110 of
the Act, in conjunction with action on the part D NSR rules as noted
above.
F. Contingency Measures
As provided in section 172(c)(9) of the CAA, all nonattainment area
SIPs must include contingency measures. Contingency measures should
consist of other specific measures that are not part of the area's
control strategy. These measures must take effect without further
action by the state or the EPA, upon a determination that the area has
failed to meet RFP or attain the lead NAAQS by the applicable
attainment date.
The contingency measures established in item 19 of the state's
Compliance Order were increased street sweeping and significant
production cuts. The state will invoke the measure requiring increased
frequency of street sweeping if, at any time after the effectiuve date
of the Order, Asarco fails to make reasonable progress on the
implementation of control measures designed to attain the standard. The
state will invoke both contingency measures if, beginning with the
calendar quarter following the attainment date, an exceedance of the
lead NAAQS is recorded. NDEQ will notify Asarco if contingency measures
must be implemented. Implementation of the specified contingency
measures is required to begin within 60 days from Asarco's receipt of
such notification.
In paragraph 20 of the Compliance Order, the state established a
provision that prohibited Asarco from causing a violation of the lead
NAAQS after the attainment date. This provision means that any
violation of the NAAQS caused by Asarco after the attainment date would
also be a violation of the Order. The reasons stated below, the EPA
proposes to take no action on this provision of the Compliance Order.
In the case of ambient violations recorded after the attainment
date, the contingency measures required by section 172(c)(9), described
above, must take effect ``without further action'' by the state or the
EPA. The specific contingency measures described in Paragraph 19 of the
Compliance Order are designed to address that requirement. However,
Paragraph 20 would require not only that the standard is exceeded, but
that Asarco has caused the violation. In addition, Paragraph 20 does
not state specific measures which must be taken if that provision is
violated. Therefore, it does not meet the requirements of section
172(c)(9).
Because the EPA has determined that the specific measures in
Paragraph 19 are adequate to meet the part D contingency measure
requirements, the EPA proposes to approve those measures and to take no
action on Paragraph 20. The effect of this action would be that the
specific contingency measures in Paragraph 19 would be enforceable by
the EPA, and Paragraph 20 would not. The EPA also requests comment on
whether there is any other basis for approval of Paragraph 20. In
particular, the EPA requests comment on the following: (1) Whether
Paragraph 20 is needed to meet any applicable provision of section 110
or subpart 1 of part D of the Act; and (2) whether
[[Page 64307]]
Paragraph 20 is otherwise appropriate for inclusion in the SIP.
Although the EPA is not proposing to approve the provision in
Paragraph 20, we note that the state may adopt and implement the
provision to the extent authorized by state law. Section 116 of the Act
provides that states may adopt requirements, including additional
requirements which are not addressed by the Act, concerning control of
air pollution if: (1) The requirement is not preempted or otherwise
prohibited by specified provisions of the Act; and (2) the provision is
no less stringent than requirements in effect under specified
provisions of the Act. The EPA believes that the state's requirement
meets the requirements of section 116.
G. Enforceability
All measures and other elements in the SIP must be enforceable by
the state and the EPA (see sections 172(c)(6), 110(a)(2)(A), and 57 FR
13556). The state submittal includes a Compliance Order which contains
all of the control and contingency measures, with enforceable dates for
implementation.
As mentioned earlier, a Work Practice Manual was included in the
state's submission as an integral part of the enforceable plan which
achieves attainment of the standard. These work practices are designed
to limit the fugitive emissions at the facility, and are enforced
through recordkeeping requirements. Noncompliance with the established
work practices is a violation of the state's Compliance Order. The EPA
approves the Work Practice Manual with the understanding that any
change to the Work Practice Manual requires a revision to the Nebraska
SIP.
As noted above, Asarco has challenged one provision of the state's
Compliance order in state court. The challenge is limited to the
provision regarding future violations of the NAAQS, on which the EPA is
proposing no action. Asarco does not challenge any other portion of the
Order, and the EPA believes that the Order continues in force under
state law. The EPA believes that the legal challenge will not affect
the enforceability of the portions of the Order proposed for approval.
The EPA requests comments on this issue.
IV. Implications of This Action
This SIP revision will significantly revise the current SIP. The
modeling performed in support of the SIP revision indicates that the
emissions control strategy will result in attainment of the NAAQS for
lead by January 1, 1997.
V. Proposed Action
By this action the EPA proposes to approve Nebraska's August 28,
1996, submittal. This proposed SIP revision meets the requirements of
section 110 and Part D of Title I of the Clean Air Act and 40 CFR part
51.
All public comments received will be addressed prior to final
rulemaking. Any parties interested in commenting on this action should
do so at this time.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic, and
environmental factors, and in relation to relevant statutory and
regulatory requirements.
VI. Administrative Requirements
A. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget has exempted
this regulatory action from Executive Order 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5. U.S.C. 600 et seq., the
EPA must prepare a regulatory flexibility analysis assessing the impact
of any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, the EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the CAA
do not create any new requirements but simply approve requirements that
the state is already imposing. Therefore, because the Federal SIP
approval does not impose any new requirements, the Administrator
certifies that it does not have a significant impact on any small
entities affected. Moreover, due to the nature of the Federal-state
relationship under the CAA, preparation of a regulatory flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of state action. The CAA forbids the EPA to base its
actions concerning SIPs on such grounds (Union Electric Co. v. U.S.
E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2)).
C. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to state, local, or tribal governments in the aggregate; or to
private sector, of $100 million or more. Under section 205, the EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires the EPA to establish a
plan for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
The EPA has determined that the approval action proposed 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 Federal action approves
preexisting requirements under state or local law, and imposes no new
Federal requirements. Accordingly, no additional costs to state, local,
or tribal governments, or to the private sector, result from this
action.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Lead, Particulate matter,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: November 14, 1996.
Dennis Grams,
Regional Administrator.
[FR Doc. 96-30473 Filed 12-3-96; 8:45 am]
BILLING CODE 6560-50-F
