[Federal Register Volume 64, Number 144 (Wednesday, July 28, 1999)]
[Rules and Regulations]
[Pages 40767-40769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19158]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region VII Tracking No. MO-076-1076; FRL-6408-3]


Finding of Failure To Submit a Revised State Implementation Plan 
(SIP) for Lead; Missouri; Doe Run-Herculaneum Lead Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Today EPA is taking final action to find that the state of 
Missouri failed to submit a revised SIP required for the Doe Run-
Herculaneum lead nonattainment area. The deadline for these SIP 
revisions was August 15, 1998.
    The failure-to-submit finding triggers the 18-month time clock for 
the mandatory application of sanctions and a 2-year time clock for a 
Federal Implementation Plan (FIP) under the Clean Air Act (CAA). This 
action is consistent with the mechanism of the CAA for ensuring timely 
SIP submissions.

EFFECTIVE DATE: July 14, 1999.

FOR FURTHER INFORMATION CONTACT: Aaron J. Worstell, Environmental 
Protection Agency, Air Planning and Development Branch, 901 North 5th 
Street, Kansas City, Kansas 66101, (913) 551-7787.

SUPPLEMENTARY INFORMATION:

I. Background

What Is the Doe Run-Herculaneum Lead Nonattainment Area?

    The Doe Run-Herculaneum lead nonattainment area is the area within 
the vicinity of the Doe Run primary lead smelter which fails to meet 
the national ambient air quality standards (NAAQS or standard) for 
lead. In 1991 the area was designated as nonattainment for lead 
pursuant to section 107(d) of the CAA. The nonattainment designation 
was codified in 40 CFR part 81 and became effective on January 6, 1992. 
See 56 FR 56694 (November 6, 1991). The nonattainment designation 
applies to that part of Jefferson County, Missouri, which is within the 
city limits of the town of Herculaneum. The Doe Run Company has 
operated a primary lead smelter in Herculaneum since 1892.
    In response to the nonattainment designation for Doe Run-
Herculaneum, the State of Missouri submitted a SIP intended to control 
lead emissions in the area and thereby attain compliance with the lead 
standard. The plan established June 30, 1995, as the date by which the 
Doe Run-Herculaneum area was to have attained compliance with the lead 
standard. However, the plan failed to provide for attainment of the 
standard, and observed lead concentrations in the Herculaneum area 
continue to violate the standard.

What Is the Air Quality Standard for Lead?

    EPA established the NAAQS for lead on October 5, 1978 (43 FR 
46246). The standard for lead is set at a level of 1.5 micrograms of 
lead per cubic meter of air (g/m\3\), averaged over a calendar 
quarter. In setting the standard, EPA considered that for a population 
of young children, the maximum safe blood lead level (as a geometric 
mean) was 15 micrograms per deciliter (g/dl) and that of this 
amount, as much as 12 g/dl may be attributable to nonair 
sources. Therefore, the difference of 3 g/dl was estimated to 
be the maximum safe contribution to mean blood levels from lead in the 
air. Furthermore, EPA considered epidemiological evidence that the 
general relationship between air lead (g Pb/m\3\) and blood 
lead (g Pb/dl) is 1 to 2; that is, every 1 g/m\3\ 
lead in the air results in an increase of 2 g/dl in blood lead 
for children. As a result, EPA determined that the lead standard should 
be 1.5 g/m\3\.

What Are the Adverse Health Effects of Lead?

    Exposure to lead occurs mainly through the inhalation of air and 
the ingestion of lead in food, water, soil, or dust. It accumulates in 
the blood, bones, and soft tissues. Because it is not readily excreted, 
lead can also adversely affect the kidneys, liver, nervous system, and 
other organs. Excessive exposure to lead may cause neurological 
impairments such as seizures, mental retardation, and/or behavioral 
disorders. Even at low doses, lead exposure is associated with damage 
to the nervous systems of fetuses and young children, resulting in 
learning deficits and lowered IQ. Recent studies also show that lead 
may be a factor in high blood pressure and subsequent heart disease.
    More detailed information on the adverse health effects of lead can 
be found in the rulemaking promulgating the lead standard.

Why Has EPA Made a Finding of Failure To Submit?

    On August 15, 1997, after taking and responding to public comments, 
EPA published a document in the Federal Register providing notification 
that the Doe Run-Herculaneum nonattainment area had failed to attain 
the lead standard by the June 30, 1995, deadline (62 FR 43647). 
Pursuant to section 179(d) of the CAA, within 12 months of the 
publication of the failure-to-attain finding (i.e, by August 15, 1998), 
the state of Missouri was required to submit a revised SIP providing 
for attainment of the lead standard in the area. However, the state of 
Missouri failed to submit the required SIP revision by the deadline, 
and EPA is therefore making a finding of failure to submit. The 
Governor of Missouri was notified of the state's deficiency on February 
25, 1999.

What Are the Consequences of Failure To Submit?

    The Missouri Department of Natural Resources is currently working 
on a revised SIP to attain the lead standard in Herculaneum. If the 
state fails to submit a complete SIP revision within 18 months of July 
14, 1999, then pursuant to section 179(a) of the CAA and 40 CFR 52.31, 
the offset sanction identified in section 179(b) of the CAA will be 
applied. If the state still has not made a complete submission six 
months after the offset sanction is imposed, then the highway funding 
sanction will apply in the affected area in accordance with 40 CFR 
52.31. In addition, section 110(c) of the CAA provides that EPA 
promulgate a FIP no later than two years after a finding under section 
179(a) if prior to that time EPA has not approved the submission 
correcting the deficiency.
    The 18-month clock will stop, and the section 179(b) sanctions will 
not take effect if, within 18 months after the date of the finding, EPA 
finds that the state has made a complete submittal. In addition, EPA 
will not promulgate a FIP if the state makes the required SIP submittal 
and EPA takes final action to approve the submittal within two years of 
the effective date of EPA's finding.

II. Final Action

What Action Is EPA Taking?

    We find that the State of Missouri failed to submit SIP revisions 
for the

[[Page 40768]]

Doe Run-Herculaneum lead nonattainment area as required by section 
179(d) of the CAA for areas which fail to attain. The revised SIP for 
the Doe Run-Herculaneum lead nonattainment area was due by August 15, 
1998.
    This finding of failure to submit initiates the sanctions clock as 
described in section I of this document. The sanctions clock begins on 
the effective date of this rulemaking.

What Is the Effective Date for This Rule?

    The effective date for this rule is July 14, 1999, the date this 
action was signed.
    EPA is treating this action as a ``rule.'' Under the Administrative 
Procedures Act (APA), 5 U.S.C. 553(d)(3), agency rulemakings may take 
effect before 30 days after the date of publication in the Federal 
Register if an agency has good cause to mandate an earlier effective 
date. This action concerns implementation plan submittals that are 
already overdue. On February 25, 1999, we sent a letter to the Governor 
of Missouri stating that we were planning to take the action we are 
taking today. Consequently, the state has been on notice that today's 
action was pending. The state and general public are aware of 
applicable provisions of the CAA that relate to failure to submit a 
required implementation plan. In addition, this action simply starts a 
sanctions clock that will not result in offset sanctions for 18 months 
and that the state may stop by submitting a revised SIP that is found 
complete by EPA under section 110(k) of the CAA. Furthermore, the FIP 
clock may be stopped if the revised SIP is found approvable under 
section 110 and part D of the CAA. These reasons support an effective 
date prior to 30 days after the date of publication.

Why Is EPA Taking This Action Without Proposing and Taking Comments 
First?

    This action is a final agency action but is not subject to the 
notice-and-comment requirements of the APA, 5 U.S.C. 553(b). We believe 
that, because of the limited time provided to make findings of failure 
to submit regarding SIP submittals, Congress did not intend such 
findings to be subject to notice-and-comment rulemaking. However, to 
the extent such findings are subject to notice-and-comment rulemaking, 
we invoke the good cause exception in the APA, 5 U.S.C. 553(b)(3)(B). 
Notice and comment are unnecessary because no EPA judgment is involved 
in making a nonsubstantive finding of failure-to-submit elements of an 
implementation plan required by the CAA. Furthermore, providing notice 
and comment would be impracticable because of the limited time provided 
under the CAA for making such determinations.
    Finally, notice and comment would be contrary to the public 
interest because it would divert our resources from the critical 
substantive review of submitted implementation plans. See 58 FR 51270, 
51272, note 17 (October 1, 1993) and 59 FR 39832, 39853 (August 4, 
1994).

III. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 12875

    Under Executive Order 12875, Enhancing the Intergovernmental 
Partnership, EPA may not issue a regulation that is not required by 
statute and that creates a mandate upon a state, local, or tribal 
government, unless the Federal Government provides the funds necessary 
to pay the direct compliance costs incurred by those governments, or 
EPA consults with those governments. If EPA complies by consulting, 
Executive Order 12875 requires EPA to provide to the OMB a description 
of the extent of EPA's prior consultation with representatives of 
affected state, local, and tribal governments, a summary of the nature 
of their concerns, copies of any written communications from the 
governments, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on state, local, or tribal 
governments. The rule does not impose any enforceable duties on any of 
these entities. This action implements EPA's requirements to review 
SIPs for completeness under 40 CFR part 51, appendix V. The SIP 
submission requirements for stopping clocks are not judicially 
enforceable. Accordingly, the requirements of section 1(a) of Executive 
Order 12875 do not apply to this rule.

C. 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 final rule is not subject 
to Executive Order 13045 because it is not an economically significant 
regulatory action as defined by Executive Order 12866, and it does not 
establish a further health or risk-based standard because it implements 
a previously promulgated health-or safety-based standard.

D. Executive Order 13084

    Under Executive Order 13084, Consultation and Coordination with 
Indian Tribal Governments, EPA may not issue a regulation that is not 
required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
Government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the OMB, in a separately identified section 
of the preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected 
officials and other representatives of Indian tribal governments ``to 
provide meaningful and timely input in the development of regulatory 
policies on matters that significantly or uniquely affect their 
communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not involve 
or impose any requirements that affect Indian tribes.

[[Page 40769]]

Accordingly, the requirements of Section 3(b) of Executive Order 13084 
do not apply to this rule.

E. Regulatory Flexibility Act (RFA)

    The RFA, 5 U.S.C. 600 et seq., generally requires an agency to 
conduct a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements unless the agency certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small not-for-profit enterprises, and small governmental jurisdictions. 
Since this final rule is not subject to notice-and-comment requirements 
under the APA, or any other statutes, it is not subject to sections 603 
or 604 of the RFA. Furthermore, this action will not have a significant 
impact on a substantial number of small entities because these findings 
under section 110 and Subchapter I, Part D of the CAA do not, in and of 
themselves, directly impose any new requirements on small entities. See 
Mid-Tex Electric Cooperative, Inc. v. FEC, 773 F.2nd 327 (D.C. Cir. 
1985) (agency's certification need only consider the impact of the rule 
on entities subject to the requirements of the rule). Instead, this 
action makes findings of failure to submit and establishes a schedule 
for Missouri to stop the clocks and does not directly regulate any 
entities. Therefore, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to state, local, or tribal governments in the aggregate; 
or to the private sector, of $100 million or more. Under section 205, 
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 EPA to establish a 
plan for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    Sections 202 and 205 do not apply to this action because the 
findings that Missouri failed to submit the required SIP for the Doe 
Run'Herculaneum area do not, in and of themselves, constitute a Federal 
mandate because they do not impose any enforceable duty on any entity. 
In addition, the CAA does not permit EPA to consider the type of 
analyses described in section 205 in determining whether a state has 
failed to submit a required SIP. Finally, section 203 does not apply to 
the action because the SIP submittal schedule to stop the clocks would 
only affect the state of Missouri, which is not a small government.

G. Paperwork Reduction Act (PRA)

    This rule does not contain any information requirements which 
require OMB approval under the PRA (44 U.S.C. 3501 et seq.).

H. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. However, section 808 provides that any rule for which 
the issuing agency for good cause finds (and incorporates the finding 
and a brief statement of reasons therefore in the rule) that notice and 
public procedure thereon are impracticable, unnecessary, or contrary to 
the public interest, shall take effect at such time as the agency 
promulgating the rule determines. As stated previously, EPA has made 
such a good cause finding, including the reasons therefore, and 
established an effective date of July 14, 1999, the date of signature. 
EPA will submit a report containing this rule and other required 
information to the U.S. Senate, the U.S. House of Representatives, and 
the U.S. Comptroller General prior to publication of the rule in the 
Federal Register. This rule is not a major rule as defined by 5 U.S.C. 
804(2).

I. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by September 27, 1999. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review, nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Lead.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: July 14, 1999.
Dennis Grams,
Regional Administrator, Region VII.
[FR Doc. 99-19158 Filed 7-27-99; 8:45 am]
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