[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
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 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