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67748 Federal Register / Vol. 58, No. 244 / Wednesday, December 22, 1993 / Proposed Rules

Substances Act and its implementing

regulations. As a consequence, such use

of the mail by dispensers of such

medicine would be allowed to the same

extent that. distribution via any carrier is

permitted under the Controlled

Substances Act and implementing

regulations.

DATES: Comments must be received by

January 21, 1994.

ADDRESSES: Address all comments to

Anita Bizzotto, Manager, Business Mail

Acceptance, U.S. Postal Service, 475

L'Enfant Plaza, SW., room 8430,

Washington, DC 20260-6808. Copies of

all written comments will be available

for public inspection and photocopying

between 9 a.m. and 4 p.m., Monday

through Friday, in room 8430 at the

-above address.

FOR FURTHER INFORMATION CONTACT:

Robert Adams (202) 268-5168.

SUPPLEMENTARY INFORMATION: Domestic

Mail Manual (DMM) C042.6.9 currently

states that "[pirescription medicines

containing narcotic drugs may be

mailed only by Veterans Administration

medical facilities to certain veterans."

Some commercial suppliers have

reported that they routinely ship such

medicines via carriers which compete

with the Postal Service, the shipments

not being prohibited by the Controlled

Substances Act, 21 U.S.C. 801 et seq.,

and its implementing regulations, 21

CFR Parts 1300-1316. These suppliers

claim that they would prefer to make

these shipments via the Postal Service,

and would do so, but for the foregoing

restriction in our regulations.

Upon review, the Postal Service has

found no need for provisions in its

regulations on mailing controlled

substances which would be stricter than

those applicable to shipments via

competing carriers. Whatever the means

of carriage, such shipments must

comply with the Controlled Substances

Act and the regulations implementing it

which provide a comprehensive system

for protecting the public. Our proposed

revisions will make postal regulations

fully consistent with that protective

system. While adopting this proposal

may lead to substantial increases in the

amount of mailed medicines containing

narcotics, compliance with our

regulations' preparation and packaging

prerequisites should yield secure transit

for those shipments.

Although exempt from the

requirements of the Administrative

Procedure Act (5 U.S.C. 553 (b) and (c)

regarding proposed rulemaking by 39

U.S.C. 410 (a), the Postal Service invites

comment on the following proposed

revision of the Domestic Mail Manual,

which is incorporated by reference in

the Code of Federal Regulations, 39 CFR

111.1.

List of Subjects in 39 CFR Part 111

Postal Service.

PART 111--[AMENDED]

1. The authority citation for 39 CFR

part 111 continues to read as follows:

Authority: 5 U.S.C. 552 (a); 39 U.S.C. 101.

401. 403,404. 3001-3011, 3201-3219, 3403-

3406, 3621, 5001.

2. Domestic Mail Manual CO42.6.8 is

hereby revised to read as follows:

Controlled Substances 6.8

A "controlled substance" is any

anabolic steroid, narcotic,

hallucinogenic, stimulant, or depressant

drug in Schedules I through V of the

Controlled Substances Act (Pub. L. 91-

513), 21 U.S.C. 801 et seq., and 21 CFR

Parts 1300-1316. Because controlled

substances are potentially addictive and

abusable, if distribution of a controlled

substance is unlawful under 21 U.S.C.

801 et seq., and any relevant

implementing regulations in 21 CFR

Parts 1300-1316, such distribution by

mail is also unlawful under 18 U.S.C.

1716. Section 1716(a) prohibits matter

capable of killing or injuring a person

from being conveyed in the mail.

3. Domestic Mail Manual C042.6,9 is

hereby revised to read as follows:

Mailing Requirements 6.9

Under 18, U.S.C. 1716(b), the Postal

Service may permit the mailing of

matter not outwardly or of its own force

dangerous or injurious to a person's life

or health. Such mailability is

conditioned upon compliance with any

preparation and packaging requirements

imposed by the Postal Service.

Accordingly, if distribution of a

controlled substance is lawful under 21

U.S.C. 801 et seq., and any relevant

implementing regulations in 21 CFR

Parts 1300-1316, the Postal Service

considers such distribution by mail to

constitute the mailing of matter not

outwardly or of its own force dangerous

or injurious to a person's life or health,

provided that it satisfies the following

preparation and packaging

requirements.

a. The inner container of any parcel

containing controlled substances must

be marked and sealed under the

applicable provisions of the Controlled

Substances Act, 21 U.S.C. 801 et seq.,

and the regulations implementing it, 21

CFR Parts 1300-1316.

b. If the controlled substances consist

of prescription medicines, the inner

container must also be labeled to show

the prescription number and the name

and address of the pharmacy,

practitioner, or other person dispensing

for prescription.

c. The inner container of every parcel

containing controlled substances must

be placed in a plain outer container or

securely overwrapped in plain paper.

d. The outside wrapper or container

must be free of markings that would

indicate the nature of the contents.

An appropriate amendment to 39 CFR

111.3 to reflect these changes will be

published if the proposal is adopted.

Stanley F. Mires,

Chief Counsel, Legislative Division.

IFR Dec. 93-30955 Filed 12-21-93; 8:45 am)

BILUNG CODE 7710-22-M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[FRL-4816-51

State Implementation Plans for Lead

Nonattainment Areas; Addendum to

the General Preamble for the

Implementation of Title I of the Clean

Air Act Amendments of 1990

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Addendum to General Preamble

for future proposed rulemakings.

SUMMARY: Areas of the country which

violate national ambient air quality

standards for any of the six criteria

pollutants (lead, sulfur dioxide (SO2),

particulate matter,.ozone, carbon

monoxide, and nitrogen dioxide) may be

designated nonattainment as provided

by the Clean Air Act (Act), as modified

by the 1990 Amendments. States

containing these areas are required by'

title I of the statute to develop plans to

timely attain the standards.

The General Preamble for the

Implementation of title I of the 1990

Amendments was published on April

16, 1992. It provides preliminary

guidance to the States and other

interested parties regarding what EPA

generally considers acceptable plan

submittals for implementing certain

requirements of title I of the Act.

This document adds the lead

addendum to the General Preamble

which provides more detailed guidance

on meeting the statutory requirements

for reasonably available control

measures (RACM) (including reasonably

available control technology (RACT)),

reasonable further progress (RFP) for

lead, and contingency measures. In

general, the guidance contained in the

addendum parallels existing guidance

previously provided for other
Federal Register / Vol. 58, No. 244 / Wednesday, December 22, 1993 / Proposed Rules 67749

pollutants, such as PM-1 (particles

with an aerodynamic diameter less than

or equal to a nominal 10 micrometers)

and SO2.

ADDRESSES: References cited herein are

available from the Public Docket No. A92-25. The docket is located at the U.S.

EPA Air Docket, room M-1500,

Waterside Mall, LE-131, 401 M Street

SW., Washington, DC 20460. The docket

may be inspected from 8:30 a.m. to 12

noon and from 1:30 p.m. to 3:30 p.m. on

weekdays, except for legal holidays. A

reasonable fee may be charged for

copying.

FOR FURTHER INFORMATION CONTACT:

Laura D. McKelvey, Air Quality

Management Division, Mail Drop 15,

Office of Air Quality Planning and

Standards, U.S. EPA, Research Triangle

Park, North Carolina 27711; (919) 541-

5497.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. Background

A. Statutory Background

B. Guidance Development C. Guidance Legal Effect

11. Reasonably Available Control Measures

[Including Reasonably Available Control

Technologyl

A. Introduction

B. Reasonably Available Control Measures

C. Reasonably Available Control

Technology

D. Previously Approved Lead SIP's

E. SIP's That Demonstrate Attainment

I1. Reasonable Further Progress

IV. Contingency Measures

V. Other Requirements

A. Executive Order 12291

B. Regulatory Flexibility Act

Appendix I-Available Fugitive LeadBearing Dust Control Measures

A. Background B. List of Available Control Measures

Appendix 2--RACT Determinations for

Stationary Sources

A. Background B. Technological Feasibility C. Economic Feasibility

In accordance with I CFR 5.9(c), this

document is published in the proposed

rules category.

I. Background

The draft addendum was made

available to the public on July 16, 1992

with a 6-week public comment period.

The EPA also held a public meeting on

July 30, 1992. No comments were

received from industry or the general

public on the addendum. Copies of the

draft addendum were also provided to

the State and Territorial Air Pollution

Program Administrators and the

Association of Local Air Pollution

Control Officials (STAPPA/ALAPCO);

the Lead Issue Group endorsed the draft

guidance and provided a few comments.

,Responses to those comments have been

placed in the docket.

A. Statutory Background

Any State containing an area

designated as nonattainment with

respect to the lead national ambient air

quality standards (NAAQS) must

develop and submit a State

implementation plan (SIP) meeting the

requirements of part D, title 1, of the Act

providing for attainment (see sections

191(a) and 192(a) of the Act). As

indicated in the "General Preamble for

the Implementation of Title I of the

Clean Air Act Amendments of 1990"

(see 57 FR 13498, 13550; April 16.

1992), all components of the lead part

D SIP must be submitted within 18

mdonths of an area's nonattainment

designation. The general part D

nonattainment plan provisions are set

forth in section 172 of the Act. Section

172(c) specifies that SIP's submitted to

meet the part D requirements must,

among other things, include RACM

(which includes RACT), provide for

RFP, include an emissions Inventory,

require permits for the construction and

operation of major new and modified

stationary sources (see also section 173),

contain contingency measures, and meel

the applicable provisions of section

110(a)(2). The EPA has provided

guidance for implementing some of the

above provisions in the April 16, 1992

"General Preamble." It is important to

note that nonattainment lead SIP's must

meet all of the part D requirements

including those specified in section

172(c) even if EPA doesnot issue

guidance for each and every provision,

e.g., applicable provisions of section

110(a)(2).

B. Guidance Development

On May 31, 1991 EPA issued

preliminary SIP development guidance

for lead nonattainment areas, "Lead

Nonattainment Area State

Implementation Plan (SIP) Guidance:

Final Staff Work Product." This

guidance was largely incorporated into

the General Preamble referenced above

(57 FR 13549-13551). The EPA

indicated that in developing RACM for

lead nonattainment areas, States should

rely on the RACM guidance issued for

particulate matter that was set out in

detail in the General Preamble (57 FR

13550). In fact, the portion of this

guidance addressing RACM for lead

nonattainment areas parallels EPA's

interpretation of RACM for particulate

matter.

A notice announcing this addendum

to the General Preamble, available in

draft form, was published on July 16,

1992 (see 57 FR 31477). The EPA

entertained written and oral comments

on the draft. The EPA received no

public or industry comments, and only

limited comments from STAPPA/

ALAPCO. Therefore, EPA is issuing this

guidance in final form largely

- unchanged. Responses to comments can

be found in the docket referenced above.

C. Guidance Legal Effect

This document describes EPA's

nonbinding views on how EPA should

interpret certain lead nonattainment

area SIP requirements. These

interpretations will be given binding

effect only after final rulemaking action

on a specific SIP submittal for a particular area. During the course of

such rulemaking action, the public will

be afforded an opportunity to comment

on the application of any interpretations

advanced in this guidance to the

particulararea in question. Thus, EPA

will consider the factual circumstances

associated with a particular lead

nonattainment area and the submissions

made by any persons before giving the

preliminary interpretations set out in

this guidance binding legal effect.

H. Reasonably Available Control

Measures (Including Reasonably

Available Control Technology)

A. Introduction

As a general rule, most, if not all, of

the lead nonattainment areas are

attributed to specific stationary sources.

That is, violations of the lead NAAQS

are caused by current and in some cases

historical emissions (see discussion

below) from specific stationary sources.

Therefore, to meet the part D

requirements, lead SIP's must contain

RACM (including RACT) which

addresses both historical emissions as

well as current direct emissions.

As a general rule, the stationary

sources in these lead nonattainment

areas tend to emit a relatively large

amount of particulate matter containing

lead. At primary lead smelters, for

example, the process of reducing

concentrate ore to lead involves a series

of steps, some of which are completed

outside buildings or inside buildings

which are not totally enclosed. Overa

period of time, emissions from these

sources have been deposited in the

neighboring community (e.g., on

roadways, parking lots, yards, and offplant property). This historicallydeposited lead, when disturbed, is

reentrained in the ambient air. When

reentrained, the fugitive lead-bearing

dust may contribute to violations of the

lead NAAQS.
67750 Federal Register / Vol. 58, No. 244 / Wednesday, December 22, 1993 / Proposed Rules

B. Reasonably Available Control

Measures

The suggested starting point for

specifying RACM in each SIP is shown

in the listing of available control

measures for fugitive lead-bearing dust

contained in appendix 1. If a State

receives substantive public comment

demonstrating through appropriate

documentation that additional control

measures may well be reasonably

available in a particular circumstance,

those measures should be added to the

list of available measures for

consideration for that area. The RACM

is then determined for the affected

area's SIP. While EPA does not presume

that these control measures are

reasonably available in all areas, a

reasoned justification for rejection of

any available control measure should be

prepared. If it can be shown that one or

more measures are unreasonable

because emissions from the sources

affected are insignificant, those

measures may be excluded from further

consideration as they would not

represent RACM for the area., The

resulting available control measures

should then be evaluated for*

reasonableness, considering their

technological feasibility and the cost of

control in the area to which the SIP

applies. In the case of public sector

sources and control measures, this

evaluation should consider the impact

of the reasonableness of the measures on

the municipal or other governmental

entity that must bear the responsibility

for their implementation (e.g., paving of

unpaved public roads). The EPA

anticipates that in some cases, States

will consider whether the sources

responsible for depositing lead

emissions in the affected community

should bear some of the responsibility

for implementation of what are

generally viewed as public sector

control measures. It is important to note

that a State should consider the

feasibility of implementing measures in

part when full implementation would

be infeasible. A reasoned justification

for partial or full rejection of any

available control measures, including

iWhere the sources affected by potentially

available control measures contribute only

negligibly to ambient concentrations that exceed the

NAAQS. EPA's policy is that it would be

unreasonable and therefore would not constitute

RACM to require controls on the sources. Not only

would RACM not require the imposition of controls

in such a circumstance but the inherent authority of administrative apncies to exclude de minimis

situations from regulation has been recognized in

contexts such as this where an agency is invoking

a de minimis exclusion as -a tool to be used In

implementing the legislative design" (see Alabama

Power Co. v. Castl.a 636 F.Zd 323.360 (D,C. Cir.

1979)).

those considered or presented during

the State's public hearing process

should be prepared. The justification

should contain an explanation, with

appropriate documentation, why each

rejected control measure is infeasible or

otherwise unreasonable.

When the process of determining

RACM for an area is completed, the

individual measures should then be

converted into a legally-enforceable

vehicle (e.g., a regulation or permit

program) (see sections 172(c)(6) and

110(a)(2XA) of the Act). The regulations

or other measures submitted should

meet EPA's criteria regarding the

enforceability of SIP's and SIP revisions.

These criteria were stated in a

September 23, 1987 memorandum (with

attachments) from J. Craig Potter,

Assistant Administrator for Air and

Radiation; Thomas L. Adams, Jr..

Assistant Administrator for Enforcement

and Compliance Monitoring; and

Francis S. Blake, General Counsel.

Office of the General Counsel; entitled

"Review of State Implementation Plans

and Revisions for Enforceability and

Legal Sufficiency." As stated in this

memorandum, SIP's and SIP revisions

which fail to satisfy the enforceability

criteria should not be forwarded for

approval. If they are submitted, they

will be disapproved if. in EPA's

judgment, they fail to satisfy applicable

statutory and regulatory requirements.

The technical guidance that discusses

in detail the suggested initial measures

identified in appendix I and that a State

should consider in determining which

of the measures in appendix I are

reasonable, considering technical

feasibility and the cost of control in a

particular area, is contained in "Fugitive

Dust Background Document and

Technical Information Document for

Best Available Control Measures" 2

(EPA-450/2-92--004), September 1992.

This document reflects EPA's most

recent assessment of available control

measures for sources of fugitive dust

and may serve as an example in

analyzing control costs for a given area.

Copies of this document may be

obtained by contacting the National

2 Much of the guidance in this document was

previously found in the "Control of Open Fugitive

Dust Sources" document (EPA-45013-8-08).

This latter document was developed with

substantial input from State and local agencies.

trade groups and associations, and control experts.

This information has been updated and replaced

in the "Fugitive Dust Background Document and

Technical Information Document for Best Available

Control Measures." Further. the more recent

document is designed to be updated as new

information becomes available. Therefore. the latter

should be referred to as the starting point for

identifying available control measures for leadbearing fugitive dust.

Technical Information Service, 5285

Port Royal Road. Springfield, Virginia

22161.

C. Reasonably Available Control

Technology

This guidance follows EPA's historic

definition of RACT as the lowest

emission limitation that a particular

source is capable of meeting by the

application of control technology that is

reasonably available considering

technological and economic feasibility.3

The RACT applies to the "existing

sources" of lead stack, process fugitive,

and fugitive dust emissions (e.g., haul

roads, unpaved staging areas) (see

section 172(c)(1)). The EPA

recommends that stationary sources

which actually emit a total of 5 tons per

year of lead or lead compounds

measured as elemental lead be the

minimum starting point for RACT

analysis.4 Generally, EPA recommends

that available control technology be

applied to those existing sources in the

nonattainment area that are reasonable

to control in light of the attainment

needs of the area and the feasibility of

such controls. Thus, a State's control

technology analyses may need to

include sources which actually emit less

than 5 tons per year of lead or lead

compounds in the area. or other sources

in.the area that are reasonable to

control, in light of the area's attainment

needs and the feasibility of control.3

A See. for example, 44 FR 53762 (September 17.

1979) and footnote 3 of that notice. Note that EPA's

emissions trading policy statement has clarified that

the RACT requirement may be satisfied by

achieving "RACT equivalent" emission reductions

in the aggregate from the full set of existing

stationary sources. See also EPA's economic

incentives proposal which reflects the Agency's

more recent policy guidance with respect to

emissions trading, 58 FR 11110. February 23. 1993.

4The EPA's regulations adopted prior to the 1990

Amendments define a point source for lead or lead

compounds measured as elemental lead. as any

stationary source that actually emits a total of S tons

per year or more (see 40 CFR 51.100(k)).

The EPA simply notes that past usage in 40 CFR

51.100(k) as evidence that the 5 tons per year has

been a historically important threshold level for

lead and, as such, has been selected here to be the

minimum starting point for RACT analysis. The Act

Amendments of 1990 included a general savings

clause which provides that regulations (or

guidance, etc.) in effect before enactment of the

Amendments shall remain in effect after enactment

(see section 193 of the amended Act). However. the

savings clause also provides that such regulations

(or guidance, etc.) shall remain in effect "except to

the extent otherwise provided under this Act,

inconsistent with the provision of this Act, or

revised by the Administrator." Id.

3 Note that Congress has not used the word "all"

in conjunction with RACT In either the earlier law

or as now amended. Thus. it is possible that a State

could demonstrate that an existing source in an area

should not be subject to a control technology.

especially where such control Is unreasonable in

light of the area's attainment needs or Infeasible.

Even if EPA was required to impose control'
Federal Register / Vol. 58, No. 244 / Wednesday, December 22, 1993 / Proposed Rules 67751

Specific guidance on the evaluation of

the technological and economic

feasibility of control technology for

existing stationary sources is contained

in appendix 2.

D. Previously Approved Lead SIP's

Prior to the 1990 Amendments, EPA

believed that the implementation and

maintenance of the lead NAAQS should

be in accordance with the SIP

requirements set forth in section 110

and not part D (see 57 FR 13549). Since

1979, EPA has taken action to approve

a number of lead area SIP's.-These SIP's

were required to demonstrate

attainment. Although there is no

statutory requirement for RACT in

section 110, generally the available

technology-based measures for

controlling lead emissions have not

changed substantially. Therefore, it is

possible that some previously-approved

lead SIP's require RACT equivalent

technology. For example, for areas that

requested attainment date extensions,

EPA may have approved SIP's that

required controls that would now be

considered RACT for existing stationary

sources of lead. However, because prior

approval of any such control technology

did not involve a RACT determination

under part D, because there may have

been new developments in available

control technology, and because the areE

is not in attainment with the lead

NAAQS (and therefore the previous

plan did not in fact provide for

attainment), it is'not appropriate to

presume that existing control

technology satisfies the RACT

requirement now applicable to lead

nonattainment areas under part D (see

section 172(c)(1)). Therefore, with

respect to controls on stack and process

fugitive emission points in previouslyapproved lead SIP's, EPA specifically

recommends that the emission limits be

reviewed under the guidance for

technology on every existing stationary source,

where a State demonstrates that available control

technology for a source is infeasible or otherwise

unreasonable, EPA would conclude that "reasonably" available control technology for that

source constitutes no control or. stated differently. that no control technology for the source is

.reasonably" available.

As referenced above, section 172(c) of the

amended Act provides that RACT should apply to

-existing sources In the area." This is the same language that appeared in the RACT requirements

under the Act prior to the 1990 Amendments (see section 172(b)(3) of the pre-amended law). Under

the pre-amended law, EPA. in effect, interpreted tho

phrase "existing sources in the area" as it is

Interpreted here. The EPA believes that Congress has placed its imprimatur on. If not adopted, EPA's

prior interpretation of RACI' (see, e.g.. section

182(a)(2)(A) of the amended Act, see also section

193 of the amended Act (savings clause preserving prior EPA guidance except where Inconsistent with

the amended Act)).

nonattainment area RACT provided in

this notice in light of any newly

identified attainment needs of the area

and improvements in control

technology and reductions in control

costs that may now make lower

emission limits reasonable (see

appendix 2). Thus, in those lead

nonattainment areas that have

previously-approved lead SIP's, the lead

regulations for existing sources should

be reviewed to determine whether

additional controls are necessary to

meet part D RACT requirements, and

whether the regulations meet EPA's

enforceability criteria.

Section 110(n)(1) of the amended Act

specifies that any provision of any lead

SIP, including any revisions, approved

or promulgated by EPA before

enactment of the 1990 Amendments,

shall remain in effect until EPA

approves or promulgates a revision to

the SIP under the new law. Section

110(1) of the Act prohibits EPA from

approving any SIP revision that

interferes with any applicable

requirement of the Act including, for

example, reasonable further progress

and attainment. Further, the General

Savings Clause, section 193 of the Act,

states that any control requirement in

effect or required to be adopted by a SIP

in effect before enactment of the 1990

k Amendments for any area which is a

nonattainment area for any air pollutant

maynot be modified unless the

modification ensures equivalent or

greater emission reductions of such air

pollutant. Thus, under section 110(n)(1),

existing provisions of lead SIP's remain

in effect in areas designated

nonattainment for lead until such

provisions are revised under the new

law. Further, under section 110(1) EPA

is barred from approving a SIP revision

.which interferes with any applicable

Act requirement. Finally, under section

193, no revision of a control

requirement can occur unless it ensures

at least equivalent emission reductions.

E. SIP's That Demonstrate Attainment

The SIP's for lead nonattainment

areas should provide for the

implementation of control measures for

area sources and control technology for

stationary sources of lead emissions

which demonstrate attainment of the

lead NAAQS as expeditiously as

practicable but no later than the

applicable statutory attainment dates.

Therefore, if a State adopts less than all

available measures but demonstrates,

adequately and appropriately, that

reasonable further progress (discussed

later) and attainment of the lead

NAAQS are assured, and application of

all such available measures would not

result in attainment any faster, then a

plan which requires implementation of

less than all technologically and

economically available measures may be

approved (see 44 FR 20375 (April 4,

1979) and 56 FR 5460 (February 11,

1991)). The EPA believes it would be

unreasonable to require that a plan

which demonstrates attainment include

all technologically and economically

available control measures even though

such measures would not expedite

attainment. Thus, for some sources in

areas which demonstrate attainment, it

is possible that some available control

measures may not be "reasonably"

available because their implementation

would not expedite attainment.

I. Reasonable Further Progress

Part D SIP's must provide for RFP (see

section 172(c)(2) of the Act). Section

171(1) of the Act defines RFP as "such

annual incremental reductions in

emissions of the relevant air pollutant as

are required by this part (part D) or may

reasonably be required by the

Administrator for the purpose of

ensuring attainment of the applicable

national ambient air quality standard by

the applicable date." Historically, for

some pollutants, RFP has been met by

showing annual incremental emission

reductions sufficient generally to

maintain linear progress toward

attainment by the specified deadline.

Requiring linear emission reduction

progress to maintain RFP may be

appropriate where:

1. Pollutants are emitted by numerous

and diverse sources.

2. The relationship between any

individual source and the overall air

quality is not explicitly quantified. 3. There is a chemical transformation

involved.

4. The emission reductions neicessary

to attain the standard are inventory

wide.

Requiring linear progress to maintain

RFP is less appropriate where:

1. There are a limited number of

sources.

2. The relationships between

individual sources and air quality are

relatively well defined.

3. There is not a chemical

transformation.

4. Emission controls system utilized

(e.g., at major point sources) will result

in swift and dramatic emission

reductions.

The EPA believes it may not be

reasonable to require linear reductions

in emissions in SIP's for lead

nonattainment areas because the air

quality problem is not usually due to a

vast inventory of sources. However, this

is not to suggest that generally it would
§7752 Federal Register / Vol. 58, No. 244 / Wednesday, December 22, 1993 / Proposed Rules

be unreasonable for EPA to require

annual incremental reductions in

emissions in lead nonattainment areas.

The RFP for lead nonattainment areas

should be met, at least in part, by "adherence to an ambitious compliance

schedule" 6 which is expected to

periodically yield significant emission

reductions, and as necessary., linear

progress. The EPA recommends that

SIP's for lead nonattainment areas

provide a detailed schedule for

compliance with RACM (including

RACT) in the areas and accurately

indicate the corresponding annual

emissions reductions to be achieved. In

reviewing the SIP, EPA will determine

whether, in light of the statutory

objective to ensure timely attainment of

the lead NAAQS, the annual

incremental emission reductions to be

achieved are reasonable. Additionally,

EPA believes that it is appropriate to

expect early implementation of less

technology-intensive control measures

(e.g., controlling fugitive dust emissions

at the stationary source) while phasing

in the more technology-intensive

control measures, such as those

involving the installation of new

hardware. Finally, note that failure to

implement the SIP provisions required

to meet annual incremental reductions

in emissions (i.e., RFP) in a particular

area could result in the application of

sanctions as described in sections

110(m) and 179(b) of the Act (pursuant

to a finding under section 179(a)(4)),

and the implementation of contingency

measures required by section 172(c)(9)

of the Act.

IV. Contingency Measures

Section 172(c)(9) of the Act defines

contingency measures as measures in a

SIP which are to be implemented if an

area fails to maintain RFP or fails to

attain the NAAQS by the applicable

attainment date. Contingency measures

become effective without further action

by the State or the Administrator, upon

determination by the Administrator that

the area has failed to maintain

reasonable further progress or attain the

lead NAAQS by the applicable statutory

deadline. Contingency measures should

consist of available control measures

that are not included in the primary

control strategy.

Contingency measures are important

for lead, which is generally a stationary

source problem (as discussed earlier),

for several reasons. First, the current

process and area fugitive emissions from

6As previously stated most of the lead

nonattainment problems are caused by point sources. For this reason EPA believes that the RFP

for lead should parallel the RFP policy for S02 (see

the General Preamble. 57 FR 13545. April 16. 1992).

these stationary sources and the

reentrainment of historically-deposited

emissions are difficult to quantify.

Therefore, the analytical tools for

determining the relationship between

reductions in emissions and resulting

air quality improvements can be subject

to uncertainties. Second, emission

estimates and attainment analyses can

be influenced by overly-optimistic

assumptions about control efficiency

with respect to fugitive emissions.

Examples of contingency measures for

controlling area fugitives include paving

more roads, stabilizing more storage

piles, increasing the frequency of street

cleaning, etc. Examples of contingency

measures for process fugitive emissions

include increasing enclosure of

buildings, increasing air flow in hoods,

increasing operation and maintenance

procedures, etc. Examples of

contingency measures for stack sources

include reducing hours of operations,

changing the feed material to lower lead

content, and reducing the occurrence of

malfunctions by increasing operation

and maintenance procedures, etc.

Section 172(c)(9) provides that

contingency measures should be

included in the SIP for a lead

nonattainment area and shall "take

effect * * * without further action by

the State or the Administrator." The

EPA interprets this requirement to be

that no further rulemaking actions by

the State or EPA would be needed to

implement the contingency measures

(see generally 57 FR 13512 and 13543-

13544). The EPA recognizes that certain

actions, such as the notification of

sources, modification of permits, etc.,

would probably be needed before a

measure could be implemented.

However, States must show that their

contingency measures can be

implemented with minimal further

action on their part and with no

additional rulemaking actions such as

public hearings or legislative review.

After EPA determines that a lead

nonattainment area has failed to

maintain RFP or to timely attain the

lead NAAQS, EPA generally expects all

actions needed to affect full

implementation of the measures to

occur within 60 days after EPA notifies

the State of such failure. The State

should ensure that the measures are

fully implemented as expeditiously as

practicable after they take effect.

V. Other Requirements

A. Executive Order 12291

Onder Executive Order 12291, EPA is

required to judge whether an action is "major" and, therefore, subject to the

requirements of a regulatory impact

analysis. The Agency has determined

that this action is exempt from

classification as "major" because it is a

compilation of interpretive rule and

general statements of policy as defined

in the Administrative Procedure Act

(APA). Nevertheless, this notice was

submitted to the Office of Management

and Budget (OMB) for review.

A copy of the draft notice as

submitted to OMB, any documents

accompanying the draft, any written

comments received from other agencies

(including OMB), and any written

responses to these comments have been

included in the, docket.

B. Regulatory Flexibility Act

Whenever the Agency is required by

section 553 of the APA or any other law

to publish general notice and proposed

rulemaking for any proposed rule, the

Agency shall propose and make

available for public comment an initial

regulatory flexibility analysis. The

regulatory flexibility requirements do

not apply for the lead addendum to the

General Preamble because it is not a

regulatory action in the context of the

APA or the Regulatory Flexibility Act.

List of Subjects in 40 CFR Part 52

Environmental protection, Reasonably

available control measures, Reasonably

available control technology, .

Contingency measures, Reasonable

further progress.

Dated: December 13, 1993.

Carol M. Browner,

Administrator.

Appendix 1-Available Fugitive LeadBearing Dust Control

A. Background

The available control measures listed

below apply to all fugitive lead-bearing

dust sources except those to which

RACT is applicable (i.e., fugitive leadbearing dust associated with traditional

stationary sources). Fugitive leadbearing dust is particulate matter

suspended in the air either by

mechanical disturbance of the surface

material or by wind action blowing

across the surface. Mechanical

disturbance includes resuspension of

particles from vehicles traveling over

roadways, parking lots, and other open

areas. Wind action includes dust blown

off inadequately stabilized open areas.

The quantity of fugitive lead-bearing

dust emissions is dependent upon

several factors such as the size of the

source, emission rate, and control

efficiency. The EPA's policy is to reduce

fugitive lead-bearing dust emissions,

with an emphasis on preventing, rather

than mitigating, them. For example, past
Federal Register / Vol. 58, No. 244 / Wednesday, December 22, 1993 / Proposed Rules

efforts to control emissions from paved

roads have usually relied on street

cleaning to reduce silt loading. The new

approach would put a higher priority on

measures to prevent silt from getting on

the road surface. Mitigative measures

should be reserved for those areas/

situations where prevention is not

feasible or the only way to reduce the

impact is to remove historicallydeposited emissions. Technical

guidance on fugitive dust control

measures is found in "Fugitive Dust

Background Document and Technical

Information Document for Best

Available Control Measures". (EPA-4501

2-92-004, September, 1992).

B. List of Available Control Measures

1. Pave, vegetate, or chemically

stabilize access points where unpaved

traffic surfaces adjoin paved roads.

2. Require dust control plans for

construction or land-clearing projects. 3. Require haul trucks to be covered.

4. Provide for traffic rerouting or rapid

clean up of temporary (and not readily

preventable) sources of dust on paved

roads (water erosion runoff, mud/dirt

carryout areas, material spills, skid

control sand). Delineate who is

responsible for cleanup. 5. Require paving, chemically

stabilizing, or otherwise stabilizing

permanent unpaved haul roads, and

parking or staging areas at commercial,

municipal, or industrial facilities.

6. Develop traffic reduction plans for

unpaved roads. Use of speed bumps,

low speed limits, etc., to encourage use

of other (paved) roads.

7. Limit use of recreational vehicles

on open land (e.g., confine operations to

specific areas, require use permits,

outright ban).

8. Require curbing and pave or

stabilize (chemically or with vegetation)

shoulders of paved roads.

9. Pave or chemically stabilize

unpaved roads.

10. Pave, vegetate, or chemically

stabilize unpaved parking areas.

11. Require dust control measures for

material storage piles.

12. Provide for storm water drainage

to preivent water erosion onto paved

roads.

13. Require revegetation, chemical

stabilization, or other abatement of wind

erodible soil, including lands subjected

to water mining, ab don farms, and

abandoned construction sites.

14. Rely upon the soil conservation

requirements (e.g., conservation plans,

conservation reserve) of the Food

Security Act to reduce emissions from

agricultural operations.

15. Require washing of undercarriages

and wheels of vehicles immediately

prior to leaving the plant area.

16. Require that water used for dust

suppression and vehicle washing

contain a limited amount of lead (e.g.,

less than or equal to 0.1 ppm).

Appendix 2-RACT Determinations for

Stationary Sources

A. Background

Congress has for the second time in

amending the Act specifically required

that RACT be applied to existing

stationary sources in areas designated

nonattainment. In section 172(b)(3) of

the Act, as amended in 1977, Congress

specified that nonattainment area plans

were to "require * * * reasonable

further progress * * * including such,

reduction in emissions from existing

sources in the area as may be obtained

through the adoption, at a minimum, of

reasonably available control

technology." Thus, RACT was required

in SIP's developed for areas that were

designated nonattainment. Although,

under the 1977 Amendments, the lead

NAAQS were not implemented through

the nonattainment area planning

provisions; in the 1990 Amendments,

Congress reaffirmed the application of

the RACT requirement in any area

designated nonattainment by largely

incorporating the 1977 section 172(bX3)

RACT requirement into section 172(c)(1)

which is applicable to lead

nonattainment areas. Specifically,

section 172(c)(1) of the Act, as amended

in 1990 (Nonattainment Plan

Provisions-In General), requires that

nonattainment area plans provide for "* * * such reductions in emissions

from existing sources in the

(nonattainment) area as may be obtained

through the adoption, at a minimum, of

reasonably available control

technology." Thus, RACT is now

required for lead nonattainment area

SIP's.

The EPA recommends that the

nonattainment area RACT for a

particular source continues to be

determined on a case-by-case basis

considering the technological and

economic feasibility of reducing

emissions from that source (through

process changes or add-on control

technology). The following

technological and economic parameters

should be considered in determining

part D RACT for a particular source.

B. Technological Feasibility

The technological feasibility of

applying an emission reduction method

to a particular source should consider

the sources process and operating

procedures, raw materials, physical

plant layout, and any other

environmental impacts such as water

pollution, waste disposal, and energy.

requirements. The process, operating

procedures, and raw materia used y

a source can affect the feasibility of

implementing process changes that

reduce emissions and the selection of

add-on emission control equipment.

The operation and longevity of control

- equipment can be significantly

influenced by the raw materials used

and the process to which it is applied.

The feasibility of modifying processes or

applying control equipment is also

influenced by the physical layout of the

particular plant. The space available in

which to implement such changes may

limit the choices and will also affect the

costs of control.

Reducing air emissions may not

justify adversely affecting other

resources by increasing pollution of

bodies of water, creating additional

solid waste disposal problems, or

creating excessive energy demands. In

other words, an otherwise available lead

control technology may not be

reasonable if these other environmental

impacts cannot reasonably be mitigated.

For analytic purposes, a State may

consider a lead control measure

technologically infeasible if, considering

the availability (and cost) of mitigative

adverse impacts of that control on other

pollution media, the control would not,

in the State's reasoned judgment,

provide a net environmental benefit. In

many instances, however, lead control

technologies have known energy

penalties and adverse effects on other

media, but such effects and the cost of

their mitigation are also known and

have been borne by owners of existing

sources in numerous cases. Such wellestablished adverse effects and their

costs are normal and assumed to be

reasonable and should not, in most

cases, justify nonuse of the lead control

technology. The costs of preventing

adverse water, solid waste, and energy

impacts will also influence the

economic feasibility of the lead control

technology.

Approaches to reducing emissions of

lead are discussed in "Control

Techniques for Lead Air Emissions," 7

Volume I--Chapters 1-3, and Volume

i--Chapter 4-Appendix B, (EPA-450/

2-77-012), December 1977. The many

processes that generate lead air

pollutants are described individually in

this report. Information on the selection

and performance of alternative control

techniques applicable to lead emitting

facilities within specific source

categories is presented. Information on

capital and annualized costs of

7 Note that this document Is currently being

revised by EPA.

67753
67754 Federal Register / Vol. 58, No. 244 / Wednesday, December 22, 1993 / Proposed Rules

installing lead emission controls is also

presented. Since it is not possible, in

most cases, to distinguish between costs

of particulate control and costs of lead

control, control costs are presented for

particulate control equipment which

coincidentally reduce potential lead

emissions. Also presented, for most

source categories, are estimates of the

environmental and energy impacts

associated with the control of lead

emissions.

Alternative approaches to reducing

emissions of particulate matter (which

would include lead) are discussed in

"Control Techniques for Particulate

Emissions from Stationary Sources"-

Volume I (EPA-450/3-81-005a) and

Volume U (EPA-450/3-81-005b),

September 1982. The design, operation

and maintenance of general particulate

matter control systems such as

mechanical collectors, electrostatic

precipitators, fabric filters, and wet

scrubbers are discussed in Volume 1.

The collection efficiency of each system

is discussed as a function of particle

size. Information is also presented

regarding energy and environmental

considerations and procedures for

estimating costs of particulate matter

control equipment. The emission

characteristics and control technologies

applicable to specific source categories

are discussed in Volume II. Secondary

environmental impacts are also

discussed.

Additional sources of information on

control technology are background

information documents for new source

performance standards and

"Identification, Assessment, and

Control of Fugitive Particulate

Emissions," EPA-600/8-86-023, August

1986.

In some instances, control

technologies more modem or more

advanced than those described in the

documents referenced may exist. In

such cases, the State's nonattainment

RACT analysis for a source should

consider such available technology.

C. Economic Feasibility

Economic feasibility considers the

cost of reducing emissions and the

difference in costs between the

particular source and other similar

sources that have implemented

emission reductions. As discussed

above, EPA presumes that it is

reasonable for similar sources to bear

similar costs of emission reductions.

Economic feasibility rests very little on

the ability of a particular source to "afford" to reduce emissions to the level

of similar sources. Less efficient sources

would be rewarded by having to bear

lower emission reduction costs if

affordability were given high

consideration. Rather, economic

feasiflity for RACT purposes is largely

determined by evidence that other

sources in a source category have in fact

applied the control technology in

question.

The capital costs, annualized costs,

and cost effectiveness of an emission

reduction technology should be

considered in determining its economic

feasibility. The,"OAQPS Control Cost

Manual, Fourth Edition," EPA-450/3-

90-006, January 1990, describes

procedures for determining these costs.

The above costs should be determined

for all technologically-feasible emission

reduction options. States may give substantial weight to

cost effectiveness in evaluating the

economic feasibility of an emission

reduction technology. The cost

effectiveness of a technology is its

annualized cost (S/year) divided by the

amount of lead emission reductions

(i.e., tons/year) which yields a cost per

amount of emission reductions ($/ton).

Cost effectiveness provides a value for

each emission reduction option that is

comparable with other options and

other facilities.

If a company contends that it cannot

afford the technology that appears to be

nonattainment area RACT for that

source or group of sources, the claim

should be supported with such

information as the impact on:

1. Fixed and variable production costs

(S/unit).

2. Product supply and demand

elasticity. 3. Product prices (cost absorption

versus cost pass-through). 4. Expected costs incurred by

competitors.

5. Company profits.

6. Employment.

If a company contends that available

control technology is not affordable and

would lead to closing the facility, the

costs of closure should be considered.

Closure may incur costs for demolition,

relocation, severance pay, etc.

[FR Dec. 93-31099 Filed 12-21-93; 8:45 am]

MUWM COOE 6504-P

40 CFR Part 52

[AK-4-1-4027; FRL-4817-.6]

Approval and Promulgation of

Implementation Plan; Alaska

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Notice of proposed rulemaking.

SUMMARY: The EPA proposes approval of

the State Implementation Plan (SIP)

revision submitted by the state of Alaska

for the purpose of bringing about the

attainment of the National Ambient Air

Quality Standards (NAAQS) for

particulate matter with an aerodynamic

diameter less than or equal to a nominal

10 micrometers (PM-10). The

.implementation plan was submitted by

the state to satisfy certain federal Clean

Air Act (CAA) requirements for an

approvable moderate nonattainment

area PM-10 SIP for Mendenhall Valley,

Alaska due on November 15, 1991. EPA

is also proposing approval of the

contingency measures submitted by the

state of Alaska for the Mendenhall

Valley and Eagle River moderate PM-10

nonattainment areas.

DATES: Comments on this proposed

action must be postmarked by January

21, 1994.

ADDRESSES: Written comments should

be addressed to: Christi Lee, United

States Environmental Protection

Agency, Air and Radiation Branch (AT082), 1200 6th Avenue, Seattle,

Washington 98101.

Copies of the documents relevant to

this action are available for public

inspection during normal business

hours at: Air and Radiation Branch

(AK-4-1-6027), United States

Environmental Protection Agency, 1200

Sixth Avenue (AT-082), Seattle,

Washington 98101, and the Department

of Environmental Conservation, 410

Willoughby, Suite 105, Juneau, Alaska

99801.

FOR FURTHER INFORMATION CONTACT:

Christi Lee, Air and Radiation Branch

(AT-082), United States Environmental

Ageficy, 1200 Sixth Avenue, Seattle,

Washington 98101, (206) 553-1814.

SUPPLEMENTAL INFORMATION:

I. Background

The Mendenhall Valley, Alaska, area

was designated nonattainment for PM10 and classified as moderate under

sections 107(d)(4)(B) and 188(a) of the

Clean Air Act, upon enactment of the

Clean Air Act Amendments of 1990. See

56 FR 56694 (Nov. 6, 1991) (40 CFR

81.302 specifying PM-10 air quality

designation for the Mendenhall Valley

area). The air quality planning

requirements for moderate PM-10

nonattainment areas are set out in

subparts 1 and 4 of Part D, Title I of the

Act., The EPA has issued a "General

Preamble," describing EPA's

preliminary views on how EPA intends

I The 1990 Amendments to the Clean Air Act

made significant changes to the Act. See Pub. L

101-549, 104 Stat 2399. References herein are to

the Clean Air Act. as amended ("the Act"). The

Clean Air Act is codified, as amended, in the U.S.

Code at 42 U.S.C. sections 7401, et seq.