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Citation: 58 Fed. Reg. 67748 1993

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-- The search text of this PDF is generated from uncorrected OCR text.67748 Federal Register / Vol. 58, No. 244 / Wednesday, December 22, 1993 / Proposed Rules

Substances Act and its implementing regulations. As a consequence, such use ofthe mail by dispensers ofsuch 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 forpublic inspection and photocopying between 9 a.m. and 4 p.m., Monday through Friday, in room 8430 at the -aboveaddress.
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 thePostal Service, the shipments
notbeing prohibited by the Controlled Substances Act, 21 U.S.C. 801 etseq., and its implementing regulations, 21 CFRParts 1300-1316. These suppliers claim that they would preferto 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 ofcarriage, 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 revisionswill make postal regulations fully consistent with that protective system. While adopting this proposal
may lead to substantial increases in the
amount ofmailed medicines containing narcotics, compliance with our regulations' preparation and packaging prerequisites should yield secure transit for those shipments.

Although exempt from the requirements ofthe 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 ofthe Domestic Mail Manual, which is incorporated by reference in the Code ofFederal Regulations, 39 CFR 111.1.

List ofSubjects in 39 CFR Part 111

PostalService.

PART 111--[AMENDED] 1.The authority citation for 39 CFR part 111 continues toread as follows:

Authority: 5U.S.C. 552 (a); 39U.S.C. 101. 401.403,404.3001-3011,3201-3219,3403- 3406, 3621, 5001.

2. Domestic Mail Manual CO42.6.8 is hereby revised toread asfollows:

Controlled Substances 6.8

A "controlled substance" is any anabolic steroid, narcotic, hallucinogenic, stimulant, or depressant drug in Schedules Ithrough V ofthe Controlled Substances Act (Pub.L. 91- 513), 21 U.S.C. 801 etseq., and 21 CFR Parts 1300-1316. Because controlled substances are potentially addictive and abusable, ifdistribution ofa 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 18U.S.C. 1716. Section 1716(a) prohibits matter capable ofkillingor injuring aperson from being conveyed in the mail.

3. Domestic Mail Manual C042.6,9 is hereby revised toread 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 ofits own force dangerous orinjurious toa person's life

orhealth. Such mailability is conditioned upon compliance with any preparation and packaging requirements imposed by the Postal Service. Accordingly, ifdistribution ofa 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 ofmatter not outwardly or ofits own force dangerous

or injurious to a person's life or health, provided that it satisfies the following preparation and packaging requirements.

a. The innercontainer ofany parcel containing controlled substances must be marked and sealed under the applicable provisions ofthe Controlled Substances Act, 21 U.S.C. 801 etseq., and the regulations implementing it, 21 CFR Parts 1300-1316.

b. Ifthecontrolled substances consist ofprescription medicines, the inner container must also be labeled to show the prescription number and the name and address ofthe pharmacy, practitioner, or other person dispensing for prescription.

c. The inner container ofevery parcel containing controlled substances must be placed in a plain outercontainer or securely overwrapped in plain paper.

d. The outside wrapper orcontainer
must be free ofmarkings that would indicate the nature ofthecontents.

An appropriate amendment to 39 CFR 111.3 toreflect these changes will be published ifthe proposal is adopted. Stanley F. Mires, Chief Counsel,LegislativeDivision. IFRDec. 93-30955 Filed 12-21-93; 8:45 am)

BILUNG CODE 7710-22-M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part52
[FRL-4816-51

State Implementation Plans forLead Nonattainment Areas; Addendum to the General Preamble for the Implementation of Title Iof the Clean AirAct 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 ofthe 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 Iofthe statute to develop plans to timely attain the standards.

The General Preamble for the Implementation oftitle Iofthe 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 oftitle Iofthe 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 otherFederal Register / Vol. 58, No. 244 / Wednesday, December 22, 1993 / Proposed Rules 67749

pollutants, such as PM-1 (particles with an aerodynamic diameter less than

orequal to a nominal 10micrometers) 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 1:30p.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 ofAir Quality Planning and Standards, U.S. EPA, Research Triangle Park, North Carolina 27711; (919) 541- 5497.

SUPPLEMENTARY INFORMATION: Table ofContents 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'sThat Demonstrate Attainment I1.Reasonable Further Progress IV. Contingency Measures V.OtherRequirements

A. Executive Order 12291 B.

Regulatory Flexibility Act Appendix I-Available Fugitive LeadBearingDust ControlMeasures A. Background B.ListofAvailable ControlMeasures 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 onJuly 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 ofthe draft addendum were also provided to the State and Territorial AirPollution 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 asnonattainment with respect to the lead national ambient air quality standards (NAAQS) must develop and submit a State implementation plan (SIP) meeting the requirements ofpart D, title 1,oftheAct providing forattainment (see sections 191(a) and 192(a) ofthe Act). As indicated in the "General Preamble for the Implementation ofTitle Iofthe Clean AirAct Amendments of 1990" (see 57 FR 13498, 13550; April 16. 1992), all components ofthe lead part D SIP must be submitted within 18 mdonths ofan area's nonattainment designation. The general part D nonattainment plan provisions are set forth in section 172 oftheAct. 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 ofmajornew and modified stationary sources (see also section 173), contain contingency measures, and meel the applicable provisions ofsection 110(a)(2). The EPA has provided guidance forimplementing some ofthe above provisions inthe April 16, 1992 "General Preamble." Itis important to note that nonattainment lead SIP's must meetall ofthe partD requirements including those specified in section 172(c) even ifEPA doesnot issue guidance foreach andevery provision, e.g., applicable provisions ofsection 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 StaffWork Product." This guidance was largely incorporated into the General Preamble referenced above (57 FR 13549-13551). The EPA indicated that indeveloping RACM for lead nonattainment areas, States should rely on the RACM guidance issued for particulate matter that was set outin detail in the General Preamble (57 FR 13550). In fact, the portion ofthis guidance addressing RACM forlead nonattainment areas parallels EPA's interpretation ofRACM for particulate
matter.

A notice announcing this addendum
to the General Preamble, available in draft form, was published onJuly 16, 1992 (see57 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. GuidanceLegalEffect

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 finalrulemaking 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, ifnot all, of the lead nonattainment areas are attributed to specific stationary sources. That is, violations ofthe 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 ofparticulate matter containing lead. At primary lead smelters, for example, the process ofreducing

concentrate ore to lead involves a series ofsteps, some of which arecompleted outsidebuildings or inside buildings which are not totally enclosed. Overa period oftime, 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 ofthe lead NAAQS.67750 Federal Register / Vol. 58, No. 244 / Wednesday, December 22, 1993 / Proposed Rules

B.Reasonably AvailableControl Measures

Thesuggested starting point for specifying RACM ineach SIP isshown in the listing ofavailable control

measures for fugitive lead-bearing dust contained in appendix 1.Ifa State receives substantive public comment demonstrating through appropriate documentation thatadditional control

measures may well be reasonably available in a particular circumstance, those measures should be added to the list ofavailable 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 reasonedjustification for rejection of
any available control measure should be prepared. Ifitcanbe shown that one or

more measures areunreasonable because emissions from the sources affected are insignificant, those

measures may beexcluded from further consideration as theywould not represent RACM forthe area., The resulting available control measures should then beevaluated for* reasonableness, considering their technological feasibility and the cost of control in the area to which the SIP applies. In the case ofpublic sector

sources and control measures, this evaluation should consider the impact ofthereasonableness ofthe measures on the municipal or other governmental entity that must bear the responsibility for theirimplementation (e.g., paving of unpaved public roads). The EPA anticipates that in some cases, States will consider whether thesources responsible for depositing lead emissions inthe affected community shouldbear some ofthe responsibility for implementation ofwhat are generally viewed as public sector controlmeasures. It isimportant tonote that a State should consider the feasibility ofimplementing measures in part when full implementation would be infeasible.A reasoned justification for partial or full rejection of any available control measures, including

iWhere thesources affected by potentially available control measures contribute only negligibly toambient concentrationsthat exceed the NAAQS. EPA's policy is that itwould be unreasonable and therefore would not constitute RACM to require controls on the sources.Not only would RACM not require the imposition ofcontrols in suchacircumstance but the inherent authority ofadministrative apnciesto excludede minimis situationsfrom regulationhasbeen recognized in contexts suchasthis where an agency is invoking

ade minimis exclusion as -a tool tobe used In implementing the legislative design" (see Alabama PowerCo. v. Castl.a 636 F.Zd 323.360 (D,C. Cir.
1979)). those considered or presented during the State's public hearing process shouldbe prepared. The justification should contain an explanation, with appropriate documentation, why each rejected control measure is infeasible or otherwise unreasonable.

When the process ofdetermining 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) ofthe Act). The regulations

orother measures submitted should
meetEPA's criteria regarding the enforceability ofSIP's and SIPrevisions. These criteria were stated in a September 23, 1987 memorandum (with attachments) from J. Craig Potter, Assistant Administrator forAirand Radiation; Thomas L.Adams, Jr.. Assistant Administrator forEnforcement and Compliance Monitoring; and Francis S. Blake, General Counsel. Office ofthe General Counsel; entitled "Review ofState Implementation Plans and Revisions for Enforceability and Legal Sufficiency." As stated in this memorandum, SIP's and SIPrevisions which fail to satisfy the enforceability criteria should notbe forwarded for approval. Ifthey 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 Iand that a State should consider in determining which ofthe measures in appendix I are reasonable, considering technical feasibility and the cost ofcontrol 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 ofavailable control

measures for sources offugitive dust and may serve as an example in analyzing control costs for agiven area. Copies ofthis document may be obtained by contacting the National

2 Much ofthe guidance inthis document was previouslyfound in the"Control ofOpen Fugitive Dust Sources" document (EPA-45013-8-08). This latter document was developed with substantial input from State and local agencies. trade groupsand associations, andcontrol experts.

This information has been updatedand replaced in the "Fugitive Dust Background Document and Technical Information Document forBest Available Control Measures." Further. themore recent document is designed tobe updated as new information becomes available.Therefore. the latter shouldbe referred to asthe starting point for identifyingavailable control measures forleadbearing fugitive dust. Technical Information Service, 5285 Port Royal Road. Springfield, Virginia 22161.

C.Reasonably AvailableControl Technology

This guidance follows EPA's historic definition ofRACT as the lowest emission limitation that a particular

source is capable of meeting by the application ofcontrol technology that is reasonably available considering technological and economic feasibility.3 The RACT applies to the "existing sources" oflead 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 of5 tons per year oflead or lead compounds measured as elemental leadbe 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 ofthe attainment needs ofthe 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 peryear oflead orlead compounds in the area. or other sources in.the area that are reasonable to control, in light ofthe area's attainment needs and the feasibility ofcontrol.3

A

See. for example, 44 FR 53762 (September 17. 1979)and footnote 3 ofthat notice. Notethat EPA's emissions trading policy statement has clarifiedthat the RACT requirement may be satisfied by achieving "RACT equivalent" emission reductions in the aggregate from thefull set of existing stationary sources. See also EPA's economic incentives proposal which reflects the Agency's

more recent policyguidance with respect to emissions trading, 58 FR 11110. February 23.1993.

4The EPA's regulationsadopted prior to the 1990 Amendments definea point source for lead or lead compounds measured as elemental lead. as any stationary sourcethat actually emits a total ofS 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 thatthe 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 includeda general savings clause which provides that regulations (or guidance, etc.) in effect before enactment ofthe Amendments shall remain in effect after enactment (seesection 193 ofthe 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 ofthis Act, or revised by the Administrator." Id.

3Note that Congress has not used the word "all"
in conjunctionwith RACT In either the earlier law

or as now amended. Thus. it is possible that a State could demonstratethat an existing source in an area should not be subject toa control technology. especially where such control Is unreasonable in light ofthe 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 ofcontrol technology for existing stationary sources is contained in appendix 2.

D.Previously ApprovedLeadSIP's
Priorto the 1990 Amendments, EPA believed that the implementation and maintenance ofthe lead NAAQS should be in accordance with the SIP requirements set forth in section 110 and not part D (see57 FR 13549). Since 1979, EPA has taken action to approve
a number oflead area SIP's.-These SIP's

were required to demonstrate attainment. Although there is no statutory requirement forRACT 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 nowbe considered RACT forexisting stationary

sources oflead. However,because prior approval ofany such control technology did not involve aRACT 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 infact 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 inpreviouslyapproved lead SIP's, EPA specifically recommends that the emission limitsbe reviewed under the guidance for

technology on every existingstationary source, where aState demonstrates that available control technology for asource is infeasible orotherwise unreasonable, EPA wouldconclude that "reasonably" availablecontrol technology for that source constitutes no controlor. stateddifferently. that no control technologyforthe source is .reasonably" available.

As referenced above, section 172(c) ofthe amended Act provides that RACT should apply to -existing sources In thearea." This is thesame language that appeared in the RACT requirements under the Act prior to the 1990 Amendments (see section 172(b)(3) ofthepre-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 believesthat Congress has placed its imprimatur on. Ifnot adopted, EPA's prior interpretation of RACI' (see, e.g.. section 182(a)(2)(A) ofthe amended Act, see alsosection 193 ofthe amendedAct (savingsclause preserving prior EPA guidance except where Inconsistent with the amended Act)). nonattainment area RACTprovided in this notice in light ofany newly identified attainment needs ofthe area and improvements in control technology and reductions in control
costs that may nowmake 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 theamended Act specifies that any provision ofany lead SIP, including any revisions, approved

or promulgated by EPA before enactment ofthe 1990 Amendments, shall remain in effect until EPA approves or promulgates a revision to the SIP under the new law. Section 110(1) ofthe Act prohibits EPA from approving any SIP revision that interferes with any applicable requirement ofthe Act including, for example, reasonable further progress and attainment. Further, the General Savings Clause, section 193 ofthe Act, states that any control requirement in effect or required to be adopted by a SIP in effect before enactment ofthe 1990 k Amendments for anyarea which is a

nonattainment area forany air pollutant maynot be modified unless the modification ensures equivalent or greater emission reductions ofsuch air pollutant. Thus, under section 110(n)(1), existing provisions oflead SIP's remain in effect in areas designated nonattainment for lead until such provisions arerevised under the new law. Further, undersection 110(1) EPA is barred from approving a SIPrevision .which interferes with any applicable Act requirement. Finally, under section 193, no revision ofa control requirement can occur unless it ensures atleast equivalent emission reductions.

E.SIP'sThatDemonstrate Attainment
The SIP's forlead nonattainment

areas should provide for the implementation ofcontrol measures for

area sources and control technology for stationary sources oflead emissions which demonstrate attainment ofthe lead NAAQS asexpeditiously as practicable but no later than the applicable statutory attainment dates. Therefore, ifa State adopts less than all available measures but demonstrates, adequately and appropriately, that reasonable further progress (discussed later) and attainment ofthe 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 (see44 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 ispossible that some available control

measures may notbe "reasonably" available because their implementation would notexpedite attainment.

I. Reasonable FurtherProgress

Part D SIP's must provide forRFP (see section 172(c)(2) ofthe Act). Section 171(1) ofthe Act defines RFP as "such annual incremental reductions in emissions ofthe relevant air pollutant as
are required by this part (part D) ormay reasonably be required by the Administrator for the purpose of ensuring attainment ofthe applicable national ambient airquality standard by the applicable date." Historically, for

some pollutants, RFP has been met by showing annual incremental emission reductions sufficient generally to maintain linearprogress toward attainment by the specified deadline. Requiring linearemission reduction progress tomaintain RFPmay be appropriate where: 1.Pollutants are emitted by numerous and diverse sources.

2. Therelationship between any individual source and the overall air quality is not explicitly quantified.

3. There isa 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 airquality 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 areasbecause the air quality problem is not usually due to a vast inventory ofsources. However, this is not to suggest thatgenerally it would§7752 Federal Register / Vol. 58, No. 244 / Wednesday, December 22, 1993 / Proposed Rules

be unreasonable forEPA 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 ofthe 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 ofnew 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) ofthe Act (pursuant
to a finding under section 179(a)(4)), and the implementation ofcontingency

measures required by section 172(c)(9) ofthe Act.

IV. Contingency Measures

Section 172(c)(9) ofthe Act defines contingency measures as measures in a SIP which are to be implemented ifan

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 ofavailable control measures that are not included in theprimary 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 ofthe lead nonattainment problems arecaused bypoint
sources.For thisreason EPA believes that the RFP for leadshould parallel the RFP policy for S02 (see the General Preamble. 57 FR 13545. April 16. 1992). these stationary sources and the reentrainment ofhistorically-deposited emissions are difficult to quantify. Therefore, the analytical tools for determining the relationship between reductions inemissions 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 ofcontingency measures for controlling area fugitives include paving

more roads, stabilizing more storage piles, increasing the frequency ofstreet cleaning, etc. Examples ofcontingency

measures forprocess fugitive emissions include increasing enclosure of buildings, increasing air flow inhoods, increasing operation and maintenance procedures, etc. Examples of contingency measures for stack sources include reducing hours ofoperations, changing the feed material to lower lead content, andreducing the occurrence of malfunctions by increasing operation and maintenance procedures, etc. Section 172(c)(9) provides that contingency measures should be included inthe SIP fora lead nonattainment area and shall "take effect * * * without further action by the Stateor the Administrator." The EPA interprets this requirement tobe 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 asthe notification of
sources, modification ofpermits, etc., would probably be needed before a
measure couldbe implemented. However, States must show thattheir 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 orto timely attain the lead NAAQS, EPA generally expects all actions needed to affect full implementation ofthe measures to

occur within 60 days after EPA notifies the State ofsuch failure. The State should ensure that the measures are fully implemented as expeditiously as practicable after they take effect.

V.OtherRequirements

A. Executive Order12291

Onder Executive Order 12291, EPA is required tojudge whether an action is "major" and, therefore, subject to the requirements ofa regulatory impact analysis. The Agency has determined that this action is exempt from classification as "major" because it is a compilation ofinterpretive rule and general statements ofpolicy as defined in the Administrative Procedure Act (APA). Nevertheless, thisnotice was submitted to the Office ofManagement and Budget (OMB) for review.

A copy ofthe 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 theAgency is required by section 553 ofthe APA or any other law topublish general notice and proposed rulemaking forany 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 isnot a regulatory action in the context ofthe APA or the Regulatory Flexibility Act.
List ofSubjects in40 CFR Part52

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 theair either by mechanical disturbance ofthe 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 offinadequately stabilized open areas. The quantity offugitive lead-bearing dustemissions is dependent upon several factors such as the size ofthe
source, emission rate,and control efficiency. The EPA's policy isto reduce fugitive lead-bearing dust emissions, with an emphasis onpreventing, rather than mitigating, them. Forexample, pastFederal Register / Vol. 58, No. 244 / Wednesday, December 22, 1993 / Proposed Rules

efforts to control emissions from paved roadshave usually relied on street cleaning to reduce silt loading. The new approach would put a higherpriority on

measures to prevent siltfrom getting on the road surface. Mitigative measures should be reserved forthose areas/ situations where prevention isnot feasible or the only waytoreduce the impact istoremove historicallydeposited emissions. Technical guidance on fugitive dustcontrol

measures isfound in "Fugitive Dust Background Document and Technical Information Document for Best Available Control Measures".(EPA-4501 2-92-004, September, 1992).

B.ListofAvailableControlMeasures

1.Pave, vegetate, orchemically stabilize access points where unpaved traffic surfaces adjoin paved roads.

2. Require dust control plans for construction or land-clearing projects.

3. Require haul trucksto becovered. 4. Provide for traffic rerouting or rapid clean up oftemporary (and not readily preventable) sources of dust on paved roads (watererosion 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 ofspeed bumps, low speed limits,etc., to encourage use ofother (paved) roads.

7. Limituse ofrecreational 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 ofpaved roads.

9. Pave orchemically stabilize unpaved roads.

10. Pave, vegetate, orchemically stabilize unpaved parkingareas.

11. Require dust control measures for material storage piles.

12. Providefor storm water drainage
to preivent water erosion onto paved roads. 13. Require revegetation, chemical stabilization, orother abatement ofwind erodible soil, including lands subjected
to water mining, ab donfarms, and abandoned construction sites.

14. Rely upon the soil conservation requirements (e.g., conservation plans, conservation reserve) ofthe Food Security Act toreduce emissions from agricultural operations.

15. Requirewashing ofundercarriages and wheels ofvehicles immediately priorto leaving the plant area. 16. Require that waterused fordust suppression and vehicle washing contain a limited amount oflead (e.g., less than orequal to 0.1 ppm).
Appendix 2-RACT Determinations for Stationary Sources

A. Background

Congress has forthe 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) ofthe 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 ofreducing emissions from that source (through
process changes or add-on control technology). The following technological and economic parameters should beconsidered in determining part D RACT for aparticular 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. Theprocess, operating procedures, and raw materia used y
asource can affect the feasibility of implementing process changes that reduce emissions and theselection of add-onemission control equipment. The operation and longevity ofcontrol

-equipment can be significantly influenced by the raw materials used and the processto which it is applied. The feasibility ofmodifying processes or applying control equipment is also influenced bythe physical layout ofthe particular plant. The space available in which to implement such changes may limit the choices and will also affect the
costs ofcontrol.

Reducing airemissions may not justify adversely affecting other

resources by increasing pollution of bodies ofwater, creating additional solid waste disposal problems, or creating excessive energy demands. In otherwords, an otherwise available lead control technology may notbe reasonable ifthese other environmental impacts cannot reasonably be mitigated. For analytic purposes, a State may consider a lead control measure technologically infeasible if,considering the availability (andcost) ofmitigative adverse impacts ofthatcontrol on other pollution media, the control would not, in the State's reasonedjudgment, provide a net environmental benefit. In many instances, however, leadcontrol 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 ofexisting

sources innumerous cases. Such wellestablished adverse effects and their
costs are normal and assumed tobe reasonable and should not, inmost cases,justifynonuse ofthe lead control technology. The costs ofpreventing adverse water, solid waste, and energy impacts will also influence the economic feasibility ofthe 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 thatgenerate lead air pollutants are described individually in this report. Information onthe selection and performance ofalternative control techniques applicable to lead emitting facilities within specific source categories is presented. Information on capital and annualized costs of

7 Notethat this document Is currently being revised byEPA. 6775367754 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 ofparticulate control and costs oflead control, control costs are presented for particulate control equipment which coincidentally reduce potential lead emissions. Also presented, for most

source categories, are estimates ofthe environmental and energy impacts associated with the control of lead emissions.

Alternative approaches toreducing emissions ofparticulate 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 generalparticulate
matter control systems such as mechanical collectors, electrostatic precipitators, fabric filters, and wet scrubbers are discussed inVolume 1. The collection efficiency ofeach system is discussed as a function ofparticle size. Information is also presented regarding energy and environmental considerations andprocedures for estimating costs ofparticulate 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 ofinformation on control technology arebackground information documents for new source performance standards and "Identification, Assessment, and Control ofFugitiveParticulate Emissions," EPA-600/8-86-023, August 1986.

In some instances, control technologies more modem ormore advanced than those described in the documents referenced may exist. In such cases, the State's nonattainment RACT analysis fora source should consider such available technology.

C. EconomicFeasibility

Economic feasibility considers the
cost ofreducing emissions and the difference in costsbetween the particular source and other similar

sources that have implemented emission reductions. As discussed above, EPA presumes that it is reasonable for similar sources tobear similar costs ofemissionreductions. Economic feasibility rests very little on the ability ofa particular source to "afford" to reduce emissions to the level ofsimilar sources. Less efficient sources would be rewarded byhaving tobear lower emission reduction costs if affordability were given high consideration. Rather, economic feasiflity forRACT 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 ofan 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 forall technologically-feasible emission reduction options.

States may give substantial weight to
cost effectiveness in evaluating the economic feasibility ofan emission reduction technology. The cost effectiveness ofa technology is its annualized cost (S/year) divided by the
amount oflead emission reductions (i.e., tons/year) whichyields a cost per amount ofemission reductions ($/ton). Cost effectiveness provides avalue for each emission reduction option that is comparable with other options and other facilities.

Ifa company contends that it cannot afford the technology that appears tobe nonattainment area RACT for that

source or group ofsources, the claim shouldbe supported with such information asthe impact on:

1.Fixed and variable production costs (S/unit).

2. Product supply and demand elasticity.

3. Product prices (costabsorption

versus cost pass-through).

4. Expected costs incurredby competitors.

5. Company profits. 6. Employment. Ifa company contends that available control technology is not affordable and would lead to closing the facility, the costs ofclosure should be considered. Closure may incur costs fordemolition, 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 ofproposed rulemaking.

SUMMARY: The EPA proposes approval of the State Implementation Plan (SIP) revision submitted by the state ofAlaska for the purpose ofbringing about the attainment ofthe National Ambient Air Quality Standards (NAAQS) for particulate matter with an aerodynamic diameter less than orequal to anominal 10 micrometers (PM-10).The .implementation plan was submitted by the stateto satisfy certain federal Clean Air Act (CAA) requirements for an approvable moderate nonattainment

area PM-10 SIP forMendenhall Valley, Alaska due on November 15, 1991. EPA is also proposing approval ofthe contingency measures submitted by the
state ofAlaska 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, Airand Radiation Branch (AT082), 1200 6th Avenue, Seattle, Washington 98101.

Copies ofthe 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 ofEnvironmental 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 asmoderate under sections 107(d)(4)(B) and 188(a) ofthe Clean AirAct, upon enactment ofthe Clean AirAct 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 1and 4 ofPartD, Title Iofthe Act., The EPA has issued a "General Preamble," describing EPA's preliminary views on how EPA intends

IThe 1990 Amendments to theClean AirAct made significantchanges to theAct. See Pub. L 101-549, 104 Stat 2399. References herein are to the Clean AirAct. asamended ("theAct").The Clean Air Act is codified, as amended, inthe U.S. Code at 42 U.S.C. sections 7401, etseq.