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Approval and Promulgation of Air Quality Implementation Plans; MN; Maintenance Plan Update for Dakota County Lead Area

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Environmental Protection Agency (EPA).


Direct final rule.


EPA is approving an update to the lead maintenance plan for Dakota County, Minnesota. This plan update demonstrates that Dakota County will maintain attainment of the lead National Ambient Air Quality Standard (NAAQS) through 2014. Minnesota has verified that the emission limits adopted to demonstrate modeled attainment continue to be met, that there are no new significant sources of lead or increases in background emissions, and that the state has in place a comprehensive program to identify sources of violations and address any violation through enforcement and implementation of a contingency plan.


This direct final rule will be effective August 4, 2008, unless EPA receives adverse comments by July 3, 2008. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.


Submit your comments, identified by Docket ID No. EPA-R05-OAR-2007-1097, by one of the following methods:

1. Follow the on-line instructions for submitting comments.

2. E-mail:

3. Fax: (312) 886-5824.

4. Mail: Doug Aburano, Acting Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

5. Hand Delivery: Doug Aburano, Acting Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays.

Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-2007-1097. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at, 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 or e-mail. The Web site is an “anonymous access” system, which 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 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 docket are listed in the 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 or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. We recommend that you telephone Kathleen D'Agostino, Environmental Engineer, at (312) 886-1767 before visiting the Region 5 office.

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Kathleen D'Agostino, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-1767,

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Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

I. What Is the Background of This Action?

II. What Has Minnesota Submitted?

III. What Is EPA's Analysis of the Submittal?

IV. What Action Is EPA Taking?

V. Statutory and Executive Order Reviews

I. What Is the Background of This Action?

On January 6, 1992, EPA designated Dakota County, Minnesota as nonattainment for the National Ambient Air Quality Standard (NAAQS) for lead. On June 22, 1993, the Minnesota Pollution Control Agency (MPCA) submitted a State Implementation Plan (SIP) revision containing an administrative order for the Gopher Smelting and Refining Company (now known as Gopher Resources Corporation) as well as air modeling and monitoring data demonstrating attainment of the NAAQS in the area. The State also requested that EPA redesignate the area to attainment and included a maintenance plan, as required by section 175A of the Clean Air Act (CAA), which demonstrated maintenance of the standard for a ten year period. As part of this maintenance plan, Minnesota included contingency measures to be implemented by the Start Printed Page 31615Gopher facility within 30 days should a violation of the lead NAAQS occur. EPA approved the redesignation of Dakota County to attainment for lead on October 18, 1994 (59 FR 52431).

Under section 175A(b) of the CAA, 8 years after an area is redesignated to attainment, the state is required to submit a revision to the SIP demonstrating maintenance of the NAAQS for ten years after the expiration of the initial ten year period.

II. What Has Minnesota Submitted?

On November 18, 2002, the MPCA submitted a SIP revision for the Gopher Resources Corporation facility and an update to the lead maintenance plan for Dakota County. The maintenance plan revision was intended to meet the requirement of section 175A(b) of the CAA. However, among other things, the revisions to the SIP for Gopher Resources Corporation removed contingency measures from the maintenance plan.

On November 19, 2007, MPCA withdrew the SIP revision for the Gopher Resources Corporation facility, clarified that the contingency measures contained in the administrative order currently in the SIP remain in the maintenance plan, and requested that EPA act on the maintenance plan update.

III. What Is EPA's Analysis of the Submittal?

The SIP for the Dakota County lead area identified only one major source of lead emissions, the facility now known as Gopher Resources Corporation. There are no new sources of lead in or near the area which could be anticipated to jeopardize attainment in the area.

The administrative order issued to the facility now known as Gopher Resources remains in effect. This administrative order contains emissions limits and procedures which have been demonstrated, through modeling, to result in attainment of the NAAQS. In addition, since December 23, 1997, the facility has been complying with the requirements of the National Emission Standards for Hazardous Air Pollutants (NESHAP) for secondary lead smelting (40 CFR 63, subpart X). To the extent that the NESHAP requirements are more stringent than the requirements contained in the SIP, the area would be expected to experience improvements in air quality.

Because there are no new major sources of lead emissions in the area and Gopher Resources Corporation now must also comply with the NESHAP for secondary lead smelting, the modeling originally submitted with the attainment SIP for Dakota County could be considered to provide a conservative representation of the current air quality status of the area.

In the event of future growth in the area, any new lead source will be subject to MPCA permitting requirements. New facilities with the potential to emit lead of more than 0.5 tons per year must go through the MPCA's permitting process before construction can begin. In addition, MPCA has the authority to require any source, even one with a potential to emit less than 0.5 tons per year, to obtain a permit in order to ensure compliance with the lead NAAQS.

To verify the attainment status of the area, MPCA has committed to continue ambient lead monitoring for the area, in accordance with 40 CFR part 58. Should a violation of the lead NAAQS be monitored in the area, the administrative order requires the Gopher Resource Corporation facility to implement the specified contingency measures within 30 days, without further action from Minnesota or EPA.

EPA believes that the MPCA has adequately demonstrated that the lead NAAQS will continue to be maintained in Dakota County through the additional 10 year maintenance period, as required under section 175A(b) of the CAA.

IV. What Action Is EPA Taking?

EPA is approving Minnesota's plan for maintaining the lead NAAQS in the Dakota County area through 2012. We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective August 4, 2008 without further notice unless we receive relevant adverse written comments by July 3, 2008. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective August 4, 2008.

V. Statutory and Executive Order Reviews

Under the CAA, 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 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 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 (Pub. L. 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 be inconsistent with the CAA; 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. Start Printed Page 31616

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 4, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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List of Subjects in 40 CFR Part 52

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Dated: May 12, 2008.

Bharat Mathur,

Acting Regional Administrator, Region 5.

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For the reasons stated in the preamble, part 52, chapter I, of title 40 of the Code of Federal Regulations is amended as follows:

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1. The authority citation for part 52 continues to read as follows:

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

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Subpart Y—Minnesota

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2. In § 52.1220 the table in paragraph (e) is amended by adding an entry for “Lead Maintenance Plan” to read as follows:

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Identification of plan.
* * * * *

(e) * * *

EPA-Approved Minnesota Nonregulatory Provisions

Name of nonregulatory SIP provisionApplicable geographic nonattainment areaState submittal date/effective dateEPA approved dateComments
*         *         *         *         *         *         *
Lead Maintenance PlanDakota County11/18/2002 and 11/19/20078/4/2008, [Insert page number where the document begins]Maintenance plan update.
*         *         *         *         *         *         *
* * * * *
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[FR Doc. E8-12240 Filed 6-2-08; 8:45 am]