Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Proposed Rules 58913 

concession agreements as defined in 

§ 710.703. 

* * * * * 

10. Add new Subpart G to Part 710 to 

read as follows: 

Subpart G—Concession Agreements 

Sec. 

710.701 Purpose. 

710.703 Definitions. 

710.705 Applicability. 

710.707 Fair market value. 

710.709 Determination of fair market value. 

Authority: 23 U.S.C. 129,156, 166, 315; 

Pub. L. 102–240, section 1012(b); Pub. L. 

105–178, section 1216(b); Pub. L. 109–59, 

section 1604. 

§ 710.701 Purpose. 

The purpose of this subpart is to 

prescribe the standards that ensure fair 

market value is received by a highway 

agency under concession agreements 

involving Federally funded highways. 

§ 710.703 Definitions. 

As used in this subpart: 

(a) Best value means the proposal 

offering the most overall public benefits 

as determined through an evaluation of 

the amount of the concession payment 

and other appropriate considerations. 

Such other appropriate considerations 

may include, but are not limited to, 

qualifications and experience of the 

concessionaire, expected quality of 

services to be provided, the history or 

track record of the concessionaire in 

providing the services, timelines for the 

delivery of services, performance 

standards, complexity of the services to 

be rendered, and revenue sharing. 

(b) Concession agreement means an 

agreement between a highway agency 

and a concessionaire under which the 

concessionaire is given the right to 

operate and collect revenues or fees for 

the use of a Federally funded highway 

in return for compensation to be paid to 

the highway agency. A concession 

agreement may include, but not be 

limited to, obligations concerning the 

development, design, construction, 

maintenance, operation, level of service, 

and/or capital improvements to a 

facility over the term of the agreement. 

(c) Concessionaire means any private 

or public entity that enters into a 

concession agreement with a highway 

agency. 

(d) Fair market value, for purposes of 

this Subpart, means the price at which 

a highway agency is ready and willing 

to enter into a concession agreement for 

a Federally funded highway on the open 

market for a reasonable period of time 

and in an arm’s length transaction to 

any willing, knowledgeable, and able 

buyer. 

(e) Federally funded highway means 

any highway (including highways, 

bridges, and tunnels) acquired with 

Federal assistance made available under 

title 23, United States Code. A highway 

shall be deemed to be acquired with 

Federal assistance if Federal assistance 

participated in either the purchase of 

any real property, or in any capital 

expenditures in any fixtures located on 

real property, within the right-of-way, 

including the highway and any 

structures located upon the property. 

(f) Highway agency means any State 

transportation department or other 

public authority with jurisdiction over a 

Federally funded highway. 

§ 710.705 Applicability. 

This subpart applies to all concession 

agreements involving Federally funded 

highways. 

§ 710.707 Fair market value. 

A highway agency shall receive fair 

market value for any concession 

agreement involving a Federally funded 

highway. 

§ 710.709 Determination of fair market 

value. 

(a) Fair market value may be 

determined either on a best value basis 

or upon the basis of highest bid 

received, as may be specified by the 

highway agency in the request for 

proposals or other relevant solicitation. 

(b) In order to be considered fair 

market value, the terms of the 

concession agreement must be both 

legally binding and enforceable. 

(c) Any concession agreement 

awarded pursuant to a competitive 

process shall be presumed to be fair 

market value. Any such competitive 

process shall afford all interested 

proposers an equal opportunity to 

submit a proposal for the concession 

agreement and shall comply with 

applicable State and local law. 

(d) If a concession agreement is not 

awarded pursuant to a competitive 

process, the highway agency must 

demonstrate to the FHWA that the 

process used resulted in fair market 

value being received. 

(e) Nothing in this subpart is intended 

to waive the requirements of Part 172, 

Part 635, and Part 636 of this chapter 

whenever any Federal-aid (including 

TIFIA assistance) is to be used for a 

project under the concession agreement. 

[FR Doc. E8–23729 Filed 10–7–08; 8:45 am] 

BILLING CODE 4910–22–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2008–0538; FRL–8726–8] 

Approval and Promulgation of 

Implementation Plans; State of 

Missouri 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to grant 

conditional approval of Missouri’s 

attainment demonstration State 

Implementation Plan (SIP) for the lead 

National Ambient Air Quality Standard 

(NAAQS) nonattainment area of 

Herculaneum, Missouri. The state 

asserts that it will adopt and submit 

specific enforceable measures to EPA by 

date certain, which will be no later than 

one year following any EPA approval of 

the plan, in order to meet the conditions 

described in this proposal. EPA 

proposes conditional approval because 

Missouri’s SIP submission provides 

substantial progress toward improving 

air quality, and Missouri has committed 

to submitting a SIP revision to meet all 

applicable requirements of the Clean Air 

Act. 

DATES: Comments must be received on 

or before November 7, 2008. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R07– 

OAR–2008–0538, by one of the 

following methods: 

1. http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

2. E-mail: yoshimura.gwen@epa.gov. 

3. Mail, Hand Delivery or Courier: 

Gwen Yoshimura, Environmental 

Protection Agency, Air Planning and 

Development Branch, 901 North 5th 

Street, Kansas City, Kansas 66101. 

Instructions: Direct your comments to 

Docket ID No. EPA–R07–OAR–2008– 

0538. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 


dwashington3 on PRODPC61 with PROPOSALS
58914 Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Proposed Rules 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket. All documents in the 

electronic docket are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Air Planning and Development Branch, 

901 North 5th Street, Kansas City, 

Kansas. EPA requests that you contact 

the person listed in the FOR FURTHER

INFORMATION CONTACT section to 

schedule your inspection. The 

interested persons wanting to examine 

these documents should make an 

appointment with the office at least 24 

hours in advance. 

FOR FURTHER INFORMATION CONTACT: 

Gwen Yoshimura at (913) 551–7073, or 

e-mail her at yoshimura.gwen@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document ‘‘we,’’ ‘‘us,’’ 

or ‘‘our’’ refer to EPA. 

Table of Contents 

I. Background 

A. The SIP Process 

1. What is a SIP? 

2. What is the Federal approval process for 

a SIP? 

3. What does Federal approval of a state 

regulation mean to me? 

B. Background for the Proposal 

II. Technical Review of the Submittal 

A. Summary of the State Submittal 

1. Facility Description 

2. Model Selection, Meteorological and 

Emissions Inventory Input Data 

3. Modeling Results 

4. Control Strategy 

5. Reasonably Available Control Measures 

(RACM) Including Reasonably Available 

Control Technology (RACT) 

6. Reasonable Further Progress (RFP) 

7. New Source Review (NSR) 

8. Contingency Measures 

9. Enforceability 

III. Proposed Action 

IV. Statutory and Executive Order Reviews 

I. Background 

A. The SIP Process 

1. What is a SIP? 

Section 110 of the Clean Air Act (CAA 

or Act) requires states to develop air 

pollution regulations and control 

strategies to ensure that state air quality 

meets the national ambient air quality 

standards established by EPA. These 

ambient standards are established under 

section 109 of the CAA, and they 

currently address six criteria pollutants. 

These pollutants are: carbon monoxide, 

nitrogen dioxide, ozone, lead, 

particulate matter, and sulfur dioxide. 

Each state must submit these 

regulations and control strategies to us 

for approval and incorporation into the 

Federally-enforceable SIP. Each 

Federally-approved SIP protects air 

quality primarily by addressing air 

pollution at its point of origin. These 

SIPs can be extensive, containing state 

regulations or other enforceable 

documents and supporting information 

such as emission inventories, 

monitoring networks, and modeling 

demonstrations. 

2. What is the Federal approval process 

for a SIP? 

In order for state regulations to be 

incorporated into the Federallyenforceable SIP, states must formally 

adopt the regulations and control 

strategies consistent with state and 

Federal requirements. This process 

generally includes a public notice, 

public hearing, public comment period, 

and a formal adoption by a stateauthorized rulemaking body. 

Once a state rule, regulation, or 

control strategy is adopted, the state 

submits it to EPA for inclusion into the 

Federally-approved SIP. We must 

provide public notice and seek 

additional public comment regarding 

the proposed Federal action on the state 

submission. If adverse comments are 

received, they must be addressed prior 

to any final Federal action by EPA. 

All state regulations and supporting 

information approved by EPA under 

section 110 of the CAA are incorporated 

into the Federally-approved SIP. 

Records of such SIP actions are 

maintained in the Code of Federal 

Regulations (CFR) at Title 40, Part 52, 

entitled Approval and Promulgation of 

Implementation Plans. The actual state 

regulations which are approved are not 

reproduced in their entirety in the CFR 

outright but are incorporated by 

reference, which means that EPA has 

approved a given state regulation with 

a specific effective date. 

3. What does Federal approval of a state 

regulation mean to me? 

Enforcement of the state regulation 

before and after it is incorporated into 

the Federally-approved SIP is primarily 

a state responsibility. However, after the 

regulation is Federally approved, EPA is 

authorized to take enforcement action 

against violators. Citizens are also 

offered legal recourse to address 

violations as described in section 304 of 

the CAA. 

B. Background for the Proposal 

The Environmental Protection Agency 

(EPA) established the National Ambient 

Air Quality Standard (NAAQS) for lead 

on October 5, 1978 (43 FR 46246). The 

NAAQS for lead is set at a level of 1.5 

micrograms (mug) of lead per cubic 

meter (m3) of air, averaged over a 

calendar quarter. 

During the 1980s and 1990s, Missouri 

submitted and EPA approved a number 

of State Implementation Plan (SIP) 

revisions for lead to address ambient 

lead concentrations in various areas of 

the state. One such area was 

Herculaneum, Missouri, where a 

primary lead smelter has been in 

operation since 1892. The primary lead 

smelter is currently owned and operated 

by the Doe Run Resources Company 

(hereafter referred to as ‘‘Doe Run’’). Doe 

Run-Herculaneum is the only currently 

operating primary lead smelter in the 

United States. 

The city of Herculaneum was 

designated nonattainment for lead in 

1991 (56 FR 56694, November 6, 1991, 

codified at 40 CFR 81.326), pursuant to 

new authorities provided by the Clean 

Air Act Amendments of 1990. The state 

also became subject to new SIP 

requirements under part D, Title I of the 

Act, added by the 1990 amendments. A 

revised SIP meeting the part D 

requirements was subsequently 

submitted in 1994. The plan established 

June 30, 1995, as the date by which the 

Herculaneum area was to attain 

compliance with the lead standard. 

However, the plan did not result in 

attainment of the standard and 

monitored ambient air lead 

concentrations in the Herculaneum area 

continued to show exceedances of the 

standard. Therefore, on August 15, 

1997, after taking and responding to 

public comments, EPA published a 

notice in the Federal Register (62 FR 


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43647) finding that the Herculaneum 

nonattainment area had failed to attain 

the lead standard by the June 30, 1995, 

deadline. 

On January 10, 2001, Missouri 

submitted a revised SIP to EPA for the 

Herculaneum area. The SIP contained 

control measures to reduce lead 

emissions to attain the standard, 

including building enclosure and 

ventilation projects, implementation of 

work practice standards, process 

throughput restrictions and hours of 

operation limitations. As required by 

section 172(c)(9) of the Act, the plan 

also included contingency measures to 

be implemented in the event that there 

were future exceedances of the lead 

standard in Herculaneum. These 

consisted of additional building 

enclosures and process controls, and a 

production curtailment measure. A 2000 

Work Practices Manual, 2001 Consent 

Judgment, and Missouri rule 10 CSR 10– 

6.120 ‘‘Restriction of Emissions of Lead 

from Specific Lead Smelter-Refinery 

Installations’’ were also included as part 

of the SIP submittal. The SIP established 

August 14, 2002, as the attainment date 

for the area. The plan included 

permitting, monitoring, and reporting 

requirements, an emissions inventory, 

implementation of all reasonably 

available control measures as 

expeditiously as practicable, provided 

for attainment of the NAAQS as 

demonstrated using modeling, 

provisions for reasonable further 

progress and implementation of 

contingency measures, and assurances 

that the state would be able to 

implement the plan, thereby satisfying 

the CAA section 172(c) nonattainment 

plan provision requirements. EPA 

approved the SIP on April 16, 2002 (67 

FR 18497). 

Doe Run and the Missouri Department 

of Natural Resources (MDNR) operate 

co-located monitors at the Broad Street 

and Main Street/City Hall monitoring 

locations (in addition to other lead 

monitoring locations in the 

nonattainment area). These monitors are 

used to show whether or not the area is 

in attainment of the standard. Following 

the August 2002 attainment date, the 

Herculaneum area monitored attainment 

of the lead standard for 10 consecutive 

calendar quarters. In 2005, air quality 

monitors in the area again reported 

exceedances of the 1.5 μg/m3 lead 

NAAQS in the first two calendar 

quarters in 2005. Monitored values are 

quality assured by MDNR and properly 

entered into the Air Quality System, 

EPA’s repository for ambient air 

monitoring data. The values for the first 

two quarters of 2005 exceed the 1.5 μg/ 

m3 lead standard and, therefore, 

constitute exceedances of the standard 

for each quarter. 

Typically, an exceedance would 

trigger implementation of a contingency 

measure. The first set of contingency 

measures, consisting of additional 

building enclosures and process 

controls, was fully implemented by Doe 

Run prior to any monitored exceedances 

of the lead NAAQS. The second 

contingency measure, a production 

curtailment, was implemented 

following exceedance of the lead 

standard in the first and second 

calendar quarters of 2005. Despite 

implementation of all contingency 

measures, air monitors in Herculaneum 

recorded values above the 1.5 μg/m3

lead standard in the third quarter of 

2005. 

Because the exceedance recorded in 

the third quarter of 2005 occurred 

despite implementation of all the 

control measures contained in the SIP, 

including all contingency measures 

developed and implemented to address 

exceedances, EPA proposed a SIP call 

on December 19, 2005 (70 FR 75093). 

The SIP call proposed to find the SIP 

substantially inadequate to attain and 

maintain the NAAQS for lead and 

proposed to require the state to revise 

the lead SIP for Herculaneum. 

EPA finalized the SIP call on April 14, 

2006 (71 FR 19432). The SIP call 

notified the state of EPA’s finding that 

the SIP was substantially inadequate to 

provide for attainment and maintenance 

of the lead NAAQS in Herculaneum, 

and required the state to submit a 

revised SIP. Section 110(k)(5) of the 

CAA provides that after EPA makes a 

finding that a plan is substantially 

inadequate, it may establish a 

reasonable deadline for correcting the 

deficiencies, but the date can be no later 

than 18 months after the state is notified 

of the finding. Based on a number of 

considerations detailed in the final rule, 

the SIP call required submission of the 

revisions within 12 months following 

date of signature of the final rulemaking. 

Along with a deadline for SIP 

submittal by the state to EPA, the final 

SIP call established the date by which 

the state must demonstrate attainment 

of the standard in Herculaneum. 

Sections 110(k)(5) and 172(d) of the Act 

provide that EPA may adjust any SIP 

deadlines that are applicable under the 

Act, except that the attainment date may 

not be adjusted unless it has elapsed. 

For Herculaneum, the attainment date 

had been August 2002 (five years after 

the state was notified that the area failed 

to attain). The attainment date had 

elapsed, and the area was not attaining 

the standard. The attainment date could 

therefore be adjusted pursuant to 

section 110(k)(5) and section 172(d) of 

the Act, and the state was required to 

provide for attainment as expeditiously 

as practicable. Based on information 

described in the final SIP call rule, EPA 

established an attainment date of April 

7, 2008, two years from the date of 

signature of the final rulemaking. MDNR 

formally commented in support of the 

timelines contained in the SIP call, 

including the SIP submittal deadline 

and attainment date. 

EPA required MDNR to submit several 

specific plan elements to EPA in order 

to correct the inadequacy of the SIP. 

These specific elements were: (1) A 

revised emissions inventory, (2) a 

modeling demonstration showing what 

reductions would be needed to bring the 

area back into attainment of the lead 

NAAQS, (3) adoption of measures to 

achieve the reductions determined 

necessary by the modeled attainment 

demonstration, with enforceable 

schedules for implementing the 

measures as expeditiously as 

practicable, and (4) contingency 

measures meeting the requirements of 

Section 172(c)(9) of the CAA. 

MDNR completed its revision to the 

SIP, and on April 26, 2007, the Missouri 

Air Conservation Commission approved 

the SIP revision after completing the 

required public notification, public 

hearing and comment period. On May 

31, 2007, EPA received Missouri’s 

revised SIP for the Herculaneum area. 

MDNR submitted supplemental 

information to EPA on March 19, 2008. 

Since the SIP call was issued in April 

2006, Herculaneum air monitors have 

recorded additional exceedances of the 

quarterly lead NAAQS. In total, since 

the third quarter of 2002, exceedances 

have occurred in the: First, second, 

third quarters of 2005; first, third, fourth 

quarters of 2006; second and third 

quarters of 2007; and the first quarter 

(January–March) of 2008. The SIP 

submittal establishes April 7, 2008, as 

the attainment date and requires 

implementation of all measures required 

for attainment by that date. 

II. Technical Review of the Submittal 

A. Summary of the State Submittal 

This SIP builds upon technical 

information and tools developed under 

the previous SIP, improving upon and 

adding to this information to more 

accurately model current conditions. 

EPA proposed, and MDNR agreed, that 

a shortened timeframe for developing 

the control strategy was appropriate 

given the substantial amount of 

technical information already available, 

early initiation of discussions between 

the source (Doe Run) and the state, and 


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the significance of lead as a public 

health concern. The resulting SIP thus 

builds and improves upon previous 

demonstrations to show attainment 

under current conditions. 

Several elements are typically 

included to produce an attainment 

demonstration. A computer model is 

selected to predict concentrations of the 

pollutant (in this case, lead) in the air 

under different scenarios. The model 

requires input data, including an 

emissions inventory for the identified 

sources and meteorological data for use 

in simulating different weather 

conditions. Information such as actual 

monitored concentrations and filter data 

may be used to assess the model’s 

accuracy. Finally, control measures are 

developed and inserted into the model. 

A successful attainment demonstration 

shows that the area will attain the 

standard if all enforceable conditions, 

including the proposed control 

measures, are met. 

The SIP must contain legally 

enforceable emissions limitations and 

other measures necessary to attain the 

NAAQS as expeditiously as practicable, 

as required by Section 110(a)(2) of the 

Act. The SIP submitted by MDNR 

contains two regulatory documents: (1) 

The May 2007 Consent Judgment 

between the state of Missouri, Missouri 

Department of Natural Resources 

(MDNR), Missouri Air Conservation 

Commission (MACC), and the Doe Run 

Resources Company, containing control 

requirements, associated 

implementation schedules, and 

contingency measures, and (2) the 

January 2007 Doe Run Herculaneum 

Smelter Work Practices Manual (WPM), 

specifying operational procedures, 

recordkeeping, and required practices. 

Missouri rule 10 CSR 10–6.120 

complements this SIP revision and has 

been previously approved by EPA (see 

generally, 71 FR 33622, June 12, 2006, 

for EPA’s approval of the most recent 

revision). In addition, the provisions of 

paragraphs (B) and (C) of the January 

2001 Consent Judgment, approved as 

part of the 2002 SIP, remain in full force 

and effect, except when inconsistent 

with the 2007 Consent Judgment. MDNR 

has provided an explanation of the 

differences between the two documents, 

and a justification for the changes from 

the 2001 Consent Judgment to the 2007 

Consent Judgment. The 2001 and 2007 

Consent Judgment, 2007 Work Practices 

Manual, and additional SIP package 

documents may be found in the docket 

for this rulemaking. The reader is also 

referred to EPA’s technical support 

document contained in the docket for a 

more complete discussion of the SIP 

development and requirements. 

1. Facility Description 

The Doe Run-Herculaneum facility 

was opened in 1892 and is the only 

primary lead smelter currently operating 

in the United States. The annual total 

production capacity of the facility is 

approximately 250,000 tons of refined 

lead. 

The primary lead smelting process 

begins with lead concentrate. Doe Runowned mining and milling operations 

located in southeastern Missouri are the 

primary source of Doe RunHerculaneum’s lead ore and lead 

concentrate. Lead ore, typically 45 

percent to 50 percent lead by weight, is 

mined from underground ore deposits. 

The ore is crushed and then processed 

into lead concentrate at the mills. Lead 

concentrate contains approximately 75 

percent lead by weight. Lead 

concentrate was previously transported 

from the mines/mills to the 

Herculaneum smelter by rail, but since 

2002 has been transported exclusively 

by truck to Herculaneum. Once 

delivered to the Herculaneum primary 

lead smelter, the process of smelting the 

lead concentrate into high purity lead 

can be divided into three main steps: 

Sintering, reducing (smelting), and 

refining. 

Once delivered to Herculaneum, the 

concentrate is first processed through 

the sinter plant. The concentrate is 

mixed and crushed with other feedstock 

materials such as silica, iron ore, and 

limestone fluxes. Recycled process 

material such as returned sinter, blast 

furnace slag, and baghouse fume may 

also be added to this mixture to produce 

the sinter feed. A thin layer of sinter 

feed enters the sinter machine and is 

ignited by a series of natural gas 

burners. A main sinter feed layer is then 

laid on top of this ignition layer. This 

layered sinter bed enters the updraft 

portion of the sinter machine, where air 

is drawn across the sinter bed from the 

bottom to the top, driving the thermal 

reaction. The lead sulfide contained in 

the feed is oxidized, producing lead 

oxide and releasing sulfur dioxide. Offgasses from the sintering process are 

sent to a baghouse which removes 

particulate matter. The off-gasses 

continue on to the acid plant where 

sulfur dioxide is recovered as sulfuric 

acid. The sinter machine produces a 

continuous feed of sinter cake (also 

called sinter roast) which is crushed and 

sorted by size. The larger pieces are 

transported to the blast furnace or to 

temporary storage, while the undersized 

pieces return to the mix room to await 

reprocessing through the sinter 

machine. 

Smelting takes place in Doe RunHerculaneum’s blast furnaces. Sinter 

cake is mixed with coke and other feed 

materials and transferred to the top of a 

furnace. Air feeds through the bottom of 

the furnace, resulting in coke 

combustion. The coke combustion heats 

the sinter cake to approximately 3,000 

degrees Fahrenheit and produces carbon 

monoxide. The carbon monoxide reacts 

with lead and other metal oxides to 

produce molten lead, waste slag, and 

carbon dioxide. The lead bullion settles 

to the bottom of the furnace, where it is 

tapped into holding pots and transferred 

to the drossing area for further refining. 

The slag (a sand-like byproduct with 

small amounts of lead, copper, zinc, and 

other materials) floats to the top of the 

furnace, is tapped off and either 

recycled back into the sinter feed or 

transported to the slag storage area at 

the south end of the facility. Impurities 

are further separated and removed from 

the lead in the dross/refinery 

departments. The lead bullion from the 

blast furnace is first transferred to one 

of the large drossing kettles where it is 

allowed to cool. As the bullion cools, 

copper, nickel, and other impurities are 

skimmed from the surface layer, known 

as the ‘‘dross.’’ Next, the decopperized 

lead is transferred to a series of natural 

gas-heated refining kettles where 

additional impurities are removed. Zinc 

is added to the lead to facilitate the 

removal of silver. The zinc-silver dross 

that forms at the surface of the kettle is 

removed and then further processed in 

order to recover the silver. Excess zinc 

is removed by vacuum distillation and 

chemical conversion. The resulting lead 

is more than 99.999 percent pure and is 

cast into 60-pound and 100-pound pigs, 

as well as 1-ton ingots. Precise amounts 

of other metals may be added to the 

molten lead in order to produce lead 

alloys for specific industrial uses. 

2. Model Selection, Meteorological and 

Emissions Inventory Input Data 

When determining what model would 

be most appropriate to use for the 

Herculaneum SIP control strategy 

modeling, EPA and MDNR considered 

use of Industrial Source Complex ShortTerm (ISC3P), CALPUFF, and AERMOD 

models. The selected model needed to 

be able to represent terrain, emission 

sources, meteorological conditions, and 

other parameters. All three models were 

deemed adequate to characterize 

conditions at Herculaneum. MDNR and 

EPA also wanted to be able to perform 

a model performance evaluation on the 

selected model using recent data. A 

model performance evaluation allows 

verification that the model is accurately 

characterizing emissions from specific 


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sources and accurately predicting air 

concentrations. For Herculaneum, the 

model performance evaluation would 

take advantage of recent monitored 

concentration data and filter data. The 

model would be run using 

meteorological data and emissions 

information from the same time period 

as the monitored air concentration and 

filter data, allowing for a direct 

comparison between the modeled 

results and the monitored information. 

Unfortunately, the on-site 

meteorological station did not 

consistently collect a full suite of data 

over the time period in question. The 

data it did collect, supplemented with 

data from a nearby met station, was 

adequate for use in the ISC model. 

Calculations used in the AERMOD and 

CALPUFF models rely on a larger suite 

of meteorological parameters and do not 

work well with supplemental, off-site 

information. Therefore, MDNR and EPA 

concluded that recent available 

meteorological data were not of 

sufficient quantity or quality to perform 

a model performance evaluation in the 

newer CALPUFF or AERMOD models. 

ISC3P requires a smaller suite of 

meteorological data inputs, can be used 

to assess concentrations from several 

types of sources associated with 

industrial source complexes, can 

account for building downwash, urban 

or rural dispersion coefficients, flat or 

elevated terrain, and averaging periods 

from one hour to one year. It was 

therefore selected as an appropriate 

model for this SIP demonstration. 

The model performance evaluation 

which, as described above, compared 

modeled results against monitored and 

filter data, was conducted using 2005 

emission inventory and meteorological 

information as inputs into the model, 

and 2005 monitored concentration and 

filter data. Once the model evaluation 

and refinement was complete, the 

attainment demonstration modeling was 

conducted using quality assured 

meteorological data from April 1997– 

March 1999 and January–March 2005. 

These nine quarters include a large 

block of time over which a range of 

meteorological conditions occurred, as 

well as a more recent quarter of data. 

Concentrations modeled over these nine 

quarters of meteorological data are 

therefore representative of an 

assortment of meteorological conditions, 

and using these nine quarters of quality 

assured data provides confidence that 

the SIP control strategy was evaluated 

over a variety of meteorological 

conditions. 

As required by Section 172(c)(3) of 

the CAA, a revised emission inventory 

was developed for this SIP revision. In 

general, 2005 hourly lead emissions 

were based upon facility daily 

production records. Many of the 

processes and sources of emissions had 

not been altered since the previous SIP 

and associated emission rates were 

assumed to be unchanged. Rates were 

estimated using equations developed 

from source testing at the facility or 

from published emission factors. In 

some instances, the emission equations 

include meteorological parameters to 

account for wind-driven emissions. For 

more information on these SIP elements, 

the reader is referred to the technical 

support document developed by EPA, 

included in the docket for this 

rulemaking. 

3. Modeling Results 

Actual value dispersion modeling was 

conducted to determine whether the 

model was performing adequately to 

pursue attainment demonstration 

modeling. This was determined through 

three comparisons: (1) Determining the 

model’s ability to replicate monitored 

daily lead concentrations, (2) comparing 

the actual value modeling results with 

filter analysis results, and (3) 

determining the model’s ability to 

replicate averaged actual monitored lead 

concentrations. The meteorological data 

set used in the actual value/model 

performance modeling was developed 

from data collected in 2005. 

The first comparison, evaluating the 

model output versus the monitored 

values on a day-to-day basis, was 

completed for Broad Street, Main Street/ 

City Hall, Bluff, and Dunklin High 

School monitor sites. Overall, the model 

performed well and matched general 

increases and decreases in daily values. 

The precise predicted daily 

concentrations varied from the 

measured concentrations. This was 

attributed to uncertainties in the 

meteorological measurements, model 

algorithms, and the emission inventory. 

The second comparison looked at the 

filter analysis versus the model. By 

combining fingerprint data from the 

previous SIP with updated source 

profiles, the filters were analyzed for the 

percent contribution from several 

facility source categories. This filter 

analysis source category percentage 

contribution profile was compared 

against the percentage contribution 

profile indicated by the modeling. As a 

result of these comparisons, the state 

modelers identified a modeled underprediction of sinter building fugitives. 

This was subsequently corrected in the 

modeling. Model results were compiled 

after the identified problems were 

corrected and compared against the 

filter analysis. The filter analysis and 

model results showed reasonable 

agreement. 

The third comparison, looking at the 

model’s ability to replicate actual 

quarterly monitored lead 

concentrations, also gave favorable 

results. The Sherman monitoring 

location was added to the four 

monitoring locations used in the first 

comparison. The Broad Street monitor is 

the monitor located closest to the 

smelter and is the monitor that has 

registered the majority of the 

exceedances since 2002. At the Broad 

Street monitor site the model performed 

well, over-predicting at one monitor and 

under-predicting at the other co-located 

monitor, and closely matching the 

averaged Broad Street site value. The 

model over-predicted concentrations at 

the other monitors. The state concluded 

that the model adequately predicted 

values at Broad Street, and gave 

conservative, possibly high, predicted 

concentrations at the other monitors. 

These comparisons showed the model 

performed adequately to determine 

whether the proposed controls would be 

sufficient to provide for attainment of 

the lead NAAQS. 

Design value modeling was conducted 

to identify which sources may be 

significant contributors in a 

hypothetical scenario where all 

processes operated for as many hours as 

possible, and throughput was as high as 

possible. The design value modeling 

was completed for a worst-case scenario 

without consideration of the 2007 

proposed controls and without 

assuming the controls resulting from the 

previous 2002 SIP. Results from this 

worst-case scenario modeling indicated 

sources or groups of sources that may 

significantly contribute to lead 

concentrations. Identified source areas 

included: south-end storage, all process 

building fugitives, Baghouse 7/9 stack, 

Baghouse 8 stack, unloader area, and inplant roads. The state then examined 

the effectiveness of existing controls and 

the technological and economic 

feasibility for additional controls at 

these sources. 

Finally, the control strategy model 

was developed. The control strategy 

model incorporates all changes made as 

a result of the actual value modeling/ 

model refinement runs, and included all 

control measures contained in the 2007 

SIP. This required application of 

capture and/or control efficiencies to a 

number of emission points, changing 

stack parameters to reflect modified 

stacks, and limitations on process 

throughputs and/or hours of operation. 

One specific set of control efficiencies 

included in the control strategy 

modeling was attributed to process 


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58918 Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Proposed Rules 

buildings as a result of operating 

conditions required by a ventilation 

study. The Consent Judgment requires 

Doe Run to conduct a building 

ventilation study for the Sinter 

Building, Blast Furnace Building, and 

Refinery Building. Building openings, 

ventilation sources with either 

continuous or varying rates of operation, 

and a procedure for measuring inflow 

into the buildings must be identified 

within the study. The study must also 

include enforceable conditions 

developed to ensure that particles 

emitted within the process buildings are 

being appropriately captured by the 

ventilation systems. 

The ventilation study works together 

with door closure and building siding 

inspection requirements to achieve an 

overall objective, or control measure, of 

effective building enclosure. By 

minimizing building openings and 

ensuring adequate ventilation, the 

buildings will be operated and 

maintained in such a fashion as to 

minimize the escape of fugitive 

emissions from the buildings. The SIP 

requires this overall building enclosure 

control measure, and also requires 

adequate ventilation in each of the 

process buildings under the ventilation 

study element. The control strategy 

modeling attributes a control efficiency 

to the overall building enclosure control 

measure, and this control efficiency is 

included in all attainment 

demonstration calculations. Although 

the adequate ventilation and overall 

building enclosure control measures are 

required under the SIP, the SIP does not 

include all necessary enforceable 

conditions (such as fan amperages or 

flow rates) associated with the 

ventilation study to ensure that these 

ventilation-related control measures are 

met. Upon MDNR’s approval of the 

ventilation study and its findings, the 

enforceable conditions identified in the 

study will become part of the Consent 

Judgment and/or Work Practices 

Manual. MDNR asserts that it will adopt 

and submit these enforceable conditions 

to EPA by date certain, which will be no 

later than one year following any EPA 

approval of the plan. See the ‘‘Proposed 

Actions’’ section of this rulemaking for 

EPA’s proposed approach to address 

this element of the SIP. 

Unless specific hourly or daily 

operating limitations were applied to a 

process or activity, sources at the plant 

were modeled based on a quarterly 

average. Many emission sources at Doe 

Run do not run continuously, twentyfour hours a day, seven days a week. 

However, in order to account for the 

variety of meteorological conditions 

simulated in the analyses, the model 

was run using an average emission rate, 

calculated assuming 24-hour operation 

of these sources. 

One source where emissions are not 

expected to be uniform across all days 

is roadways. The control strategy 

modeling attributes a 95 percent control 

efficiency to paved in-plant roads and 

paved truck haul routes external to the 

plant. This control percentage was 

modeled uniformly across all days 

modeled. Given typical operating 

conditions, the Herculaneum smelter 

generally experiences somewhat less 

activity on weekends than on weekdays. 

The wet sweeper is required to operate 

a minimum of Monday through Friday, 

and the regenerative air sweeper must 

operate Monday through Friday as well 

as any days concentrate is scheduled for 

delivery. The state attributed a control 

efficiency of 95 percent to the sweepers 

alone. Requirements for a continuouslyoperating sprinkler system, truck 

tarping and truck washing add an 

additional layer of emission controls. 

An average 95 percent control efficiency 

was attributed to the paved roads for all 

days modeled. Further discussion on 

road controls may be found in the 

technical support document developed 

by EPA and included in the docket for 

this rulemaking. 

The resulting maximum predicted 

quarterly lead concentration from the 

state’s control strategy modeling was 

1.492 μg/m3. The 1.492 μg/m3

concentration includes a calculated 

background concentration. A 

background concentration is significant 

due to its contribution to the total 

concentration of lead in ambient air. 

The lead NAAQS requires the 

concentration of lead, from all sources 

of lead in ambient air, not to exceed 1.5 

μg/m3. The state emissions inventory 

identified the Doe Run smelter and 

associated activities as the only lead 

sources near Herculaneum. The state 

then developed a background 

concentration to account for the 

contribution to monitored 

concentrations from distant sources of 

lead, any naturally occurring lead in the 

atmosphere, and sources of lead not 

captured by the Herculaneum lead 

emissions inventory. It is also possible 

that the calculated background includes 

secondary (e.g., re-entrained historical 

lead deposition from the plant) or 

primary impacts from the smelter and 

associated activities, some of which may 

also be captured by the Herculaneum 

lead emissions inventory. The state 

believes that in this situation, the 

background concentration would be 

over-estimated and would provide a 

conservative estimate for the attainment 

demonstration analysis. 

The background concentration was 

calculated by examining concentrations 

at three geographically dispersed 

Herculaneum air monitors (Ursaline— 

distant south, Bluff—proximate north, 

and High School—middle scale 

northwest). MDNR identified days when 

meteorological data indicated the wind 

was not blowing from the smelter 

toward the individual monitors. The 

monitored concentrations associated 

with these days were then averaged, 

resulting in a background concentration 

of 0.063 μg/m3. Further detail on how 

the background concentration was 

calculated may be found in the 

technical support document developed 

by EPA and included in the docket for 

this rulemaking. 

4. Control Strategy 

In order to bring Herculaneum back 

into attainment of the lead NAAQS, 

MDNR developed a control strategy for 

Doe Run-Herculaneum. The control 

strategy requires Doe Run-Herculaneum 

to implement measures to control 

emissions from five general areas: 

building fugitives, baghouse and stack 

emissions, storage piles, transportation, 

and emissions reductions through 

production volume and hours of 

operation restrictions. A brief 

description of controls associated with 

each follows below. 

Several control measures must be 

implemented to reduce escape of 

process building fugitive emissions to 

the outside air: (1) Automatic door 

closure mechanization and lock-out 

procedures, (2) a requirement for 

installation of a south door and specific 

door closure procedures for the Railcar 

Tipper Building, and (3) building siding 

inspections and maintenance work 

practices. As discussed in the 

‘‘Modeling Results’’ portion of this 

proposed rulemaking, a study will 

establish ventilation parameters, such as 

minimum fan amperages, necessary to 

ensure particle capture by the 

ventilation systems or particle capture 

within the buildings, and compliance 

with ventilation specifications resulting 

from the aforementioned study and 

specifications will be required under the 

Consent Judgment and/or Work 

Practices Manual. In addition, fugitive 

emissions from specific processes 

within buildings will also be reduced 

through a number of new controls: (1) 

Sinter wheel ventilation enclosure, (2) 

blast furnace doghouse ventilation 

improvement and redesign of hoods 

servicing the front of the furnace, (3) 

automated blast furnace tuyure controls 

and interlock control system, and (4) 

relocation of blast furnace 1 to reduce 

ductwork, reduce length of the charge 


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belt, and potentially increase ventilation 

flow rates. 

Controls specific to baghouses and 

stack emissions include: (1) Enclosure 

of the dust handling sections of the 

Carrier Cooler Baghouse, (2) installation 

of an alarm system for Number 5 

Baghouse fans, (3) pleated filter 

installation and use in Number 7 & 9 

Baghouse, (4) new bags and installation 

and use of reverse flow technology for 

bag cleaning in Number 3 Baghouse, 

and (5) visual monitoring of kettle heat 

stacks and work practices to address 

kettle failures. An additional feature of 

the baghouses is an increased stack 

height for Number 7 & 9 Baghouse, and 

Number 8 Baghouse stacks. (These stack 

height increases remain below good 

engineering practice heights.) 

Emissions from storage piles and 

associated materials handling will be 

reduced through: (1) Partial enclosure of 

the concentrate delivery area and full 

enclosure of the sinter loading area, (2) 

utilization of drop sleeves, (3) minimum 

moisture content requirements for 

concentrate and fume, and (4) wetting 

and chemical stabilization of storage 

piles. 

Transportation-related emissions will 

be reduced through: (1) Use of street 

sweeping technologies on paved roads 

both inside and outside of the plant, (2) 

in-plant sprinklers, (3) wetting and 

chemical stabilization of the slag haul 

road, and (4) haul truck tarp use, tarp 

maintenance, and concentrate truck 

washing before leaving the facility. 

Finally, the May 2007 Consent 

Judgment and January 2007 Work 

Practices Manual also include process 

throughput limitations and hours of 

operation limitations. Process limits are 

specified for certain materials handing 

operations. Twenty-four hour maximum 

allowable and/or quarterly maximum 

allowable throughputs are also specified 

for sinter, blast furnace, dross, and 

refinery production processes. 

Additional requirements are contained 

in the Consent Judgment and Work 

Practices Manual submitted as part of 

this SIP and contained in this rule 

docket. 

EPA requires in 40 CFR part 51, 

subpart N, that a compliance schedule 

generally provide for compliance as 

soon as practicable, but no later than the 

attainment date included in the plan. 

The final SIP call required the state to 

submit a revised SIP no later than April 

7, 2007 (no later than a year after the 

final SIP call was signed), and for 

Herculaneum to attain the lead NAAQS 

no later than April 7, 2008. EPA 

afforded only a year for development of 

the plan, and one year after that for 

implementation of controls. This was 

done because lead is a significant public 

health concern, technical information 

from past SIP actions was available, and 

early discussions between the state and 

Doe Run about new controls had taken 

place. EPA did not believe that less than 

a year was appropriate for development 

of the plan due to the substantial 

amount of work required to develop a 

SIP revision. In order to develop a 

revised lead SIP, the state would need 

to develop a revised emissions 

inventory to characterize the plant’s 

current conditions and operations, 

create a model to reflect conditions at 

Herculaneum, evaluate and refine the 

model, determine where new controls 

might reduce emissions, evaluate the 

feasibility of any such controls, and 

develop a control strategy that modeled 

attainment of the standard. In 

recognition of the time involved with 

each of these efforts, and the amount of 

time it takes to complete large 

construction projects, EPA believed that 

the deadlines contained in the SIP call 

would require attainment as 

expeditiously as practicable. 

A compliance schedule for 

implementation of controls is detailed 

in the Consent Judgment. All controls 

described above were included in the 

attainment demonstration modeling 

(also called the control strategy 

modeling), with the exception of control 

measures the state felt provided 

reassurances that emissions would be 

reduced but did not feel warranted its 

own control efficiency. The state’s 

attainment demonstration modeling 

predicted a maximum quarterly 

concentration of 1.492 ug/m3. Further 

discussion of the individual controls 

may be found in EPA’s technical 

support document included in this 

docket. The Consent Judgment schedule 

provides for compliance as 

expeditiously as practicable, but no later 

than April 7, 2008. EPA believes that 

the control strategy and the compliance 

schedule contained in the control 

strategy, with the exception of the 

ventilation controls discussed in the 

‘‘Proposed Actions’’ portion of this 

document, provide for attainment as 

expeditiously as practicable, and 

otherwise meet the applicable 

requirements of the Clean Air Act. 

5. Reasonably Available Control 

Measures (RACM) Including Reasonably 

Available Control Technology (RACT) 

Section 172(c)(1) of the CAA requires 

nonattainment areas to implement all 

RACM, including emissions reduction 

through the adoption of RACT, as 

expeditiously as practicable. EPA 

interprets this as requiring all 

nonattainment areas to consider all 

available controls and to implement all 

measures that are determined to be 

reasonably available, except that 

measures which will not assist the area 

to more expeditiously attain the 

standard are not required to be 

implemented. See 58 FR 67751, 

December 22, 1993, for a discussion of 

this interpretation as it relates to lead. 

In the April 14, 2006, SIP call, EPA 

did not list a new RACT analysis as a 

required element of the SIP submittal. 

Even though not required by the 2006 

SIP call, a RACT/RACM analysis is still 

included with the 2007 SIP submittal. 

No additional RACT measures were 

identified that would expedite 

attainment or reasonable further 

progress, and the plant has not changed 

significantly from when the previous 

RACT/RACM evaluation was 

completed. Some previously 

implemented RACT/RACM measures, 

i.e., types of controls, were strengthened 

through incorporation of more detailed, 

enforceable work practices in the Work 

Practices Manual. Although not directly 

relevant to RACT/RACM, we note that 

the Herculaneum primary lead smelter 

is also subject to 40 CFR Part 63 subpart 

TTT, the Federal MACT standard for 

Primary Lead Smelters. Subpart TTT 

requires the development and use of 

standard operating procedures manuals 

for all baghouses controlling process, 

process fugitive, or fugitive lead dust 

emissions. 

Dispersion modeling analysis was 

conducted to determine if the controls 

required by the 2007 Consent Judgment 

control strategy would be sufficient to 

bring the area into attainment of the 

standard. The dispersion modeling 

submitted by the state showed 

attainment of the 1.5 ug/m3 standard, 

demonstrating that the control strategy 

is adequate to bring the area into 

attainment of the standard. In terms of 

expeditious attainment we again note 

that the time between the SIP 

submission deadline and the attainment 

date is only one year, so that additional 

measures which could be implemented 

within that year and achieve reductions 

before the end of that year would be 

even less likely. For the reasons stated 

above, EPA proposes to find that no 

additional measures will expedite 

attainment and that the RACT/RACM 

requirement is met. 

6. Reasonable Further Progress (RFP) 

Section 172(c)(2) of the CAA requires 

SIPs to provide for Reasonable Further 

Progress (RFP) as defined in section 

171(1) of the CAA. Section 171(1) 

defines RFP as annual incremental 

reductions in emissions of the relevant 

air pollutants as required by Part D, or 


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58920 Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Proposed Rules 

emission reductions that may 

reasonably be required by EPA to ensure 

attainment of the applicable NAAQS by 

the applicable date. Part D does not 

include specific RFP requirements for 

lead. 

MDNR has demonstrated RFP as 

required under section 172(c)(2) of the 

CAA. Doe Run is subject to a 

compliance schedule for implementing: 

(1) Installation of emission control 

equipment, (2) enclosure and 

ventilation projects to reduce lead 

emissions, (3) process throughput 

restrictions and hours of operation 

limitations, and (4) work practice 

standards. These are but a few of the SIP 

controls that are enforceable through the 

Consent Judgment and/or the Work 

Practices Manual. Given that all controls 

contained in the control strategy were 

required to be implemented by April 7, 

2008, to provide for attainment by April 

7, 2008, EPA does not believe additional 

incremental reductions are necessary to 

meet the RFP requirement. EPA also 

notes that, since all of the new controls 

in the SIP were required to be 

implemented within one year of 

development of the control strategy 

(April 2007 to April 2008), and that 

these controls have been demonstrated 

to be adequate for attainment, we 

believe that these controls represent the 

annual reductions necessary for RFP 

and attainment. 

7. New Source Review (NSR) 

Within the CAA, Part D of Title I 

requires SIP submittals to include a 

permit program for the construction and 

operation of new and modified major 

stationary sources. The current 

definition of nonattainment areas in 

Missouri, which for lead includes the 

city of Herculaneum, Missouri, is 

provided in Missouri rule 10 CSR 10– 

6.020. For installations in a 

nonattainment area, Missouri rule 10 

CSR 10–6.060 requires a permit for 

construction of, or major modification 

to, an installation with potential to 

annually emit one hundred (100) tons or 

more of a nonattainment pollutant, or a 

permit for a modification at a major 

source with potential to annually emit 

one thousand two hundred (1,200) 

pounds of lead. The SIP call did not 

require revision to these rules. Both 

rules have been previously approved by 

EPA as part of the SIP, as meeting the 

requirements of section 173 of the Clean 

Air Act, and EPA implementing rules in 

40 CFR 51.165. 

8. Contingency Measures 

As required by CAA section 172(c)(9), 

the SIP submittal includes contingency 

measures to be implemented if EPA 

determines that Herculaneum has failed 

to make reasonable further progress, or 

if the area fails to attain the NAAQS by 

April 7, 2008, as set forth in the SIP call 

(71 FR 19432). If the area has an 

exceedance of the NAAQS during any 

quarter following the April 7, 2008, 

attainment date, the contingency 

measures will be implemented 

according to the schedule outlined in 

the May 2007 Consent Judgment, upon 

written notification of violation from 

MDNR. MDNR may also require 

implementation of contingency 

measures if the control strategy projects 

are not completed as required in the 

Consent Judgment. 

Within six months of receipt of such 

a notice, Doe Run is required to 

complete contingency measure (a) 

enclosure of the sinter plant ‘‘pugger,’’ 

and contingency measure (b) paving of 

the slag haul road from the north end of 

the blast furnace to the refinery dock. 

Following implementation of these two 

projects, if any quarter exceeds the 

standard or Doe Run fails to make 

reasonable further progress (in this 

instance, timely implementation of 

control measures), MDNR will notify 

Doe Run and contingency measure (c) 

rerouting of the kettle heat stacks to the 

main stack, is required to be completed 

within 18 months of receipt of the 

notice. 

In addition, if an exceedance of the 

quarterly lead NAAQS occurs, the 

quarterly production limit for refined 

lead is required to be reduced to 95% 

of the actual production during the 

exceedance quarter. The refined lead 

production limit will be reduced by an 

additional 5% below actual production 

for each subsequent quarter in which 

there is an exceedance, to a minimum 

production of 35,000 tons of refined 

lead per calendar quarter. In the event 

that all monitors show attainment in a 

quarter following a production decrease, 

the production level for refined lead 

may be increased by 5% of the 

attainment quarter’s actual production 

provided that Doe Run implements 

additional control measures prior to 

increasing the production level. Doe 

Run must demonstrate to MDNR that 

these control measures reduce impacts 

on air quality to an equal or greater 

extent than the increased production 

limit will increase impacts on air 

quality. In addition, any substitution of 

control measures is subject to EPA 

approval through the SIP revision 

process described below. Production 

may increase to a maximum of 62,500 

tons per calendar quarter (the level 

assumed in the attainment 

demonstration modeling), if the area 

continues to monitor attainment of the 

NAAQS. 

The Consent Judgment further 

outlines two additional contingency 

measures to be implemented in the 

event that exceedances occur after 

implementation of the contingency 

measures described above. Contingency 

measure (d) requires implementation of 

contingency measures identified as a 

result of a technological study for 

fugitive dust control. These not-yet 

identified measures would be 

implemented within a time frame to be 

determined by Doe Run and MDNR. 

Contingency measure (e) would require 

installation of dedicated ventilation to 

the sinter plant or implementation of 

Flubor technology at the Herculaneum 

facility. This contingency would be 

required if an exceedance is monitored 

or Doe Run fails to make reasonable 

further progress after implementation of 

contingency measure (c) routing of 

kettle heat stacks to the main stack, and 

contingency measure (d) contingencies 

identified by the fugitive dust control 

study to be implemented according to a 

currently undefined schedule. 

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

that contingency measures must be 

capable of implementation without any 

further action by the state or EPA. While 

EPA supports implementation of the 

activities described in contingency 

measures (d) and (e), because these two 

projects do not contain specific 

requirements and/or associated 

deadlines, EPA does not consider them 

contingency measures under section 

172(c)(9) of the Act. EPA therefore 

proposes to only include contingency 

measures (a) enclosure of the pugger, (b) 

paving of haul road, (c) rerouting of 

kettle heat stacks, and the percent 

production cuts as contingency 

measures under the Federallyenforceable SIP. 

Doe Run must notify MDNR within 10 

days of completion of any contingency 

measure. Sixty days after completion, 

Doe Run will propose an additional 

quantified contingency measure to be 

added to the Consent Judgment, which 

will become part of the Consent 

Judgment and fully enforceable upon 

approval by MDNR. These additional 

contingency measures will also be 

subject to EPA approval as part of the 

SIP. Doe Run may also substitute new 

control(s) for the above contingency 

measure(s) if Doe Run identifies and 

demonstrates to MDNR and EPA’s 

satisfaction the alternate control 

measure(s) would achieve equal or 

greater air quality improvements as 

compared to the contingency measures 

currently outlined in the Consent 

Judgment. 


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Changes to contingency measures 

would require a public hearing at the 

state level and EPA approval as a formal 

SIP revision. Until such time as EPA 

approves any substitute measure, the 

measure included in the approved SIP 

will be the enforceable measure. EPA 

does not intend to approve any 

substitutions which cannot be 

implemented in the same timeframe as 

the original. These measures will help 

ensure compliance with the lead 

NAAQS as well as meet the 

requirements of Section 172(c)(9) of the 

CAA. 

9. Enforceability 

As specified in section 172(c)(6) and 

section 110(a)(2)(A) of the CAA, and 57 

FR 13556, all measures and other 

elements in the SIP must be enforceable 

by the state and EPA. Enforceable 

documents included in Missouri’s SIP 

submittal are the May 2007 Consent 

Judgment and January 2007 Work 

Practices Manual. The Consent 

Judgment contains all control and 

contingency measures with enforceable 

dates for implementation. The only 

exception relates to the enforceable 

requirements for the ventilation 

controls, discussed above and in section 

III below. The Consent Judgment also 

includes monitoring, recordkeeping, 

and reporting requirements to ensure 

that the control and contingency 

measures are met. The Work Practices 

Manual includes these, as well as 

specific operating procedures and 

additional reporting requirements. The 

state adopted both documents into 

Missouri’s state regulations on April 26, 

2007, making them state-enforceable. 

Upon EPA approval of the SIP 

submission, both documents will 

become state and Federally enforceable, 

and enforceable by citizens under 

section 304 of the Act. 

We note that the Consent Judgment 

also contains provisions for stipulated 

penalties and sanctions should Doe Run 

fail to comply with provisions of the 

Consent Judgment or Work Practices 

Manual. EPA is not bound by the state’s 

Consent Judgment penalties, and would 

enforce against violations of these 

documents under section 113 of the 

Clean Air Act or other Federal 

authorities, rather than the Consent 

Judgment, if it approves the Consent 

Judgment and Work Practices Manual 

into the SIP. 

III. Proposed Action 

In a July 9, 1992, memorandum from 

John Calcagni, EPA discussed the 

options for actions on SIP submissions. 

One such option, conditional approval, 

is authorized under section 110(k)(4) of 

the CAA and is available where a rule 

strengthens the SIP even though the 

entire submittal does not meet all 

applicable requirements. A conditional 

approval requires a commitment from 

the state to adopt specific enforceable 

measures within a specific timeframe. 

The measures must be adopted no later 

than one year from the date of EPA’s 

final conditional approval. EPA is 

proposing to grant conditional approval 

for Missouri’s attainment demonstration 

SIP for the lead National Ambient Air 

Quality Standard nonattainment area of 

Herculaneum, Missouri. By date certain, 

which will be no later than one year 

following any EPA approval of the plan, 

the state asserts that it will adopt and 

submit to EPA enforceable measures 

related to ventilation of the process 

buildings described previously. 

As described in this proposed 

rulemaking’s ‘‘Modeling Results’’ 

section, one set of control measures 

contained in this SIP submittal requires 

creation of enforceable conditions to 

ensure appropriate building ventilation 

for particle capture. MDNR has not 

approved enforceable conditions such 

as fan amperages or flow rates related to 

this control. Therefore, although the SIP 

includes enforceable measures (building 

enclosure and adequate ventilation 

measures) related to this control, the 

ventilation requirements do not 

currently contain all necessary 

enforceable conditions to ensure that 

the provisions are met. The ventilation 

study and resulting reduction in 

building fugitive emissions is a 

significant element of the proposed 

control strategy, and these projected 

emissions reductions contribute 

significantly to the control strategy 

modeling showing attainment. EPA does 

not believe it is appropriate to give full 

approval to the SIP until the ventilation 

study and associated enforceable 

conditions are submitted by the state, 

reviewed by EPA, and made available 

for public comment. 

EPA proposes conditional approval of 

the SIP as it provides substantial 

progress toward improving air quality, 

and the state asserts that it will adopt 

and submit the missing elements to EPA 

by date certain, which will be no later 

than one year following any EPA 

approval of the plan. If EPA reviews and 

finds the ventilation control conditions 

adequate, EPA will publish and take 

comment on a supplemental proposal 

relating to the ventilation control 

conditions. This supplemental proposal 

may include a proposal to fully approve 

the SIP. 

If the state does not submit the control 

strategy element described above by 

date certain, which will be no later than 

one year following any EPA approval of 

the plan, and EPA takes final action to 

conditionally approve the revised lead 

SIP, the conditional approval will 

convert to a disapproval, as provided by 

section 110(k)(4) of the Act. In that 

instance, all portions of the revision not 

related to the ventilation study portion 

of the control strategy will remain in 

effect. However, disapproval of the 

ventilation study portion will start a 

clock for implementation of Clean Air 

Act sanctions under section 179(b), and 

a clock for promulgation of a Federal 

implementation plan under section 

110(c)(1) of the Act. 

IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the CAA. Accordingly, 

this proposed action merely approves 

state law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Public Law 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 


dwashington3 on PRODPC61 with PROPOSALS
58922 Federal Register / Vol. 73, No. 196 / Wednesday, October 8, 2008 / Proposed Rules 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: September 30, 2008. 

John B. Askew, 

Regional Administrator, Region 7. 

[FR Doc. E8–23877 Filed 10–7–08; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R4–ES–2008–0082; 9221050083–B2] 

RIN 1018–AU85 

Endangered and Threatened Wildlife 

and Plants; Proposed Endangered 

Status for Reticulated Flatwoods 

Salamander; Proposed Designation of 

Critical Habitat for Frosted Flatwoods 

Salamander and Reticulated Flatwoods 

Salamander 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; extension of 

comment period and notice of public 

hearing. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, are announcing the 

location and time of a public hearing to 

receive public comments on the 

proposal to split the current listing 

under the Endangered Species Act of 

1973, as amended, of the threatened 

flatwoods salamander (Ambystoma 

cingulatum) into two distinct species: 

frosted flatwoods salamander 

(Ambystoma cingulatum) and 

reticulated flatwoods salamander 

(Ambystoma bishopi), due to a change 

in taxonomy. We also propose to list 

reticulated flatwoods salamander as 

endangered and propose critical habitat 

for both species. We are extending the 

public comment period until November 

3, 2008. If you submitted comments 

previously, then you do not need to 

resubmit them because we have already 

incorporated them into the public 

record and we will fully consider them 

in preparation of our final 

determination. 

DATES: Public hearing: We will hold a 

public hearing on this proposed rule on 

October 22, 2008, from 7:30 p.m. to 9:30 

p.m. An open house, where the public 

may view maps of critical habitat units 

and obtain other information on the 

proposed rule and draft economic 

analysis, will be held 1 hour prior to the 

hearing from 6:30 p.m. to 7:30 p.m. 

Comments: We are extending the 

public comment period until November 

3, 2008. For more information, see 

‘‘Public Comments Solicited’’ below. 

ADDRESSES: Public hearing: We will 

hold a public hearing at Pensacola 

Junior College, 1000 College Blvd., 

Hagler Auditorium (Bldg. 2), Room 252, 

Pensacola, FL 32504. 

Comments: You may submit 

comments by one of the following 

methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

U.S. mail or hand-delivery: Public 

Comments Processing, Attn: RIN 1018– 

AU85; Division of Policy and Directives 

Management; U.S. Fish and Wildlife 

Service; 4401 N. Fairfax Drive, Suite 

222; Arlington, VA 22203. 

We will not accept e-mail or faxes. We 

will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 

FOR FURTHER INFORMATION CONTACT: Ray 

Aycock, Field Supervisor, U.S. Fish and 

Wildlife Service, Mississippi Field 

Office, 6578 Dogwood View Parkway, 

Jackson, MS 39213; telephone: 601– 

321–1122; facsimile: 601–965–4340. If 

you use a telecommunications device 

for the deaf (TDD), call the Federal 

Information Relay Service (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

We, the U.S. Fish and Wildlife 

Service, published a proposed rule on 

February 7, 2007, (72 FR 5855) to 

designate critical habitat for the 

flatwoods salamander (Ambystoma 

cingulatum), a species that was listed as 

threatened under the Endangered 

Species Act of 1973, as amended (16 

U.S.C. 1531 et seq. ) in 1999 (64 FR 

15691, April 1, 1999). As the result of 

a change in taxonomy, we subsequently 

proposed to split the listing of the 

flatwoods salamander into two distinct 

species: Frosted flatwoods salamander 

(Ambystoma cingulatum) and 

reticulated flatwoods salamander 

(Ambystoma bishopi) (73 FR 47257, 

August 13, 2008). Under our proposal, 

the frosted flatwoods salamander would 

maintain the status of threatened; 

however, we proposed to list the 

reticulated flatwoods salamander as 

endangered. 

We also proposed to designate critical 

habitat for both the frosted flatwoods 

salamander and the reticulated 

flatwoods salamander. In total, 

approximately 30,628 acres (ac) (12,395 

hectares (ha)) (23,132 ac (9,363 ha) for 

the frosted flatwoods salamander and 

7,496 ac (3,035 ha) for the reticulated 

flatwoods salamander) fall within the 

boundaries of the proposed critical 

habitat designation, which is located in 

the panhandle of Florida, southwestern 

Georgia, and southeastern South 

Carolina. On September 18, 2008, we 

published supplemental information to 

our proposed rule (73 FR 54125). 

In response to a request, we will hold 

a public hearing on this proposed rule 

as described in DATES and ADDRESSES. In 

addition, we are extending the close of 

the public comment period from 

October 14, 2008, until November 3, 

2008. 

Public Comments Solicited 

We will accept written comments and 

information we receive on or before the 

date listed in DATES on our proposed 

critical habitat designation, proposed 

endangered status for reticulated 

flatwoods salamander, the draft 

economic analysis published in the 

Federal Register on August 13, 2008 (73 

FR 47258), and proposed threatened 

status for frosted flatwoods salamander 

published in the Federal Register on 

September 18, 2008 (73 FR 54125). We 

will consider information and 

recommendations from all interested 

parties. 

You may submit your comments and 

materials by one of the methods listed 

in the ADDRESSES section. We will not 

accept comments you send by e-mail or 

fax or to an address not listed in the 

ADDRESSES section. 

We will post your entire comment— 

including your personal identifying 

information—on http:// 


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