Approval and Promulgation of Implementation Plans; State of Missouri

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MO 055-1055; FRL-6134-3]

Approval and Promulgation of Implementation Plans; State of

Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is taking final action to approve the State

Implementation Plan (SIP) revisions submitted by the state of Missouri

to broaden the current visible emissions rule exceptions to include

smoke-generating devices. This revision would allow smoke generators to

be used for military and other types of training when operated under

applicable requirements.

DATES: This rule is effective on December 28, 1998.

ADDRESSES: Comment may be addressed to Kim Johnson, Environmental

Protection Agency, Air Planning and Development Branch, 726 Minnesota

Avenue, Kansas City, Kansas 66101.

Copies of the state submittal are available at the following

address for inspection during normal business hours: Environmental

Protection Agency, Air Planning and Development Branch, 726 Minnesota

Avenue, Kansas City, Kansas 66101; and the Environmental Protection

Agency, Air & Radiation Docket and Information Center, Air Docket

(6102), 401 M Street, SW, Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Kim Johnson at (913) 551-7975.

SUPPLEMENTARY INFORMATION:

I. Background

This amendment broadens the current rule exceptions to include

smoke-generating devices in general when a required permit or a written

determination that a permit is not required has been issued. The

amendment defines a smoke-generating device as a specialized piece of

equipment which is not an integral part of a commercial, industrial or

manufacturing process and whose sole purpose is the creation and

dispersion of fine solid or liquid particles in a gaseous medium. This

revision would allow smoke generators to be used for military training

at such facilities as Fort Leonard Wood as long as such facilities

operate in accordance with applicable permit requirements.

No comments were received in response to the public comment period

regarding this rule action.

For more background information the reader is referred to the

proposal for this rulemaking published on May 7, 1998, at 63 FR 25191.

II. Final Action

The EPA is taking final action to approve, as a revision to the

SIP, the amendment to Rule 10 CSR 10-3.080, ``Restriction of Emission

of Visible Air Contaminants,'' submitted by the state of Missouri on

July 10, 1996.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

III. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order 12866 entitled ``Regulatory

Planning and Review.''

B. Executive Order 12875

Under Executive Order 12875, the EPA may not issue a regulation

that is not required by statute and that creates a mandate upon a

state, local or tribal government, unless the Federal government

provides the funds necessary to pay the direct compliance costs

incurred by those governments or the EPA consults with those

governments. If the EPA complies by consulting, Executive Order 12875

requires the EPA to provide to the OMB a description of the extent of

the EPA's prior consultation with representatives of affected state,

local, and tribal governments, the nature of their concerns, copies of

any written communications from the governments, and a statement

supporting the need to issue the regulation. In addition, Executive

Order 12875 requires the EPA to develop an effective process permitting

elected officials and other representatives of state, local and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of

[[Page 65560]]

section 1(a) of Executive Order 12875 does not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that the

EPA has reason to believe may have a disproportionate effect on

children. If the regulatory action meets both criteria, the Agency must

evaluate the environmental health or safety effects of the planned rule

on children and explain why the planned regulation is preferable to

other potentially effective and reasonably feasible alternatives

considered by the Agency.

This rule is not subject to E.O. 13045 because it does not involve

decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

Under Executive Order 13084 the EPA may not issue a regulation that

is not required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments or the EPA consults with those

governments. If the EPA complies by consulting, Executive Order 13084

requires the EPA to provide to the OMB, in a separately identified

section of the preamble to the rule, a description of the extent of the

EPA's prior consultation with representatives of affected tribal

governments, a summary of the nature of their concerns, and a statement

supporting the need to issue the regulation. In addition, Executive

Order 13084 requires the EPA to develop an effective process permitting

elected officials and other representatives of Indian tribal

governments ``to provide meaningful and timely input in the development

of regulatory policies on matters that significantly or uniquely affect

their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. This action does not involve

or impose any requirements that affect Indian tribes. Accordingly, the

requirements of section 3(b) of Executive Order 13084 do not apply to

this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act generally requires an agency to

conduct a regulatory flexibility analysis of any rule subject to notice

and comment rulemaking requirements, unless the agency certifies that

the rule will not have a significant economic impact on a substantial

number of small entities. Small entities include small businesses,

small not-for-profit enterprises, and small governmental jurisdictions.

This final rule will not have a significant impact on a substantial

number of small entities because SIP approvals under section 110 and

subchapter I, part D of the Clean Air Act (CAA) do not create any new

requirements, but simply approve requirements that the state is already

imposing. Therefore, because the Federal SIP approval does not create

any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-state relationship under the

CAA, preparation of flexibility analysis would constitute Federal

inquiry into the economic reasonableness of state action. The CAA

forbids the EPA to base its actions concerning SIPs on such grounds.

Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.

7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, the EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to state, local, or tribal governments in the aggregate, or to

private sector, of $100 million or more. Under section 205 the EPA must

select the most cost-effective and least burdensome alternative that

achieves the objectives of the rule and is consistent with statutory

requirements. Section 203 requires the EPA to establish a plan for

informing and advising any small governments that may be significantly

or uniquely impacted by the rule.

The EPA has determined that the approval action proposed does not

include a Federal mandate that may result in estimated costs of $100

million or more to either state, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves

preexisting requirements under state or local law and imposes no new

requirements. Accordingly, no additional costs to state, local, or

tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. The EPA will submit a report containing this rule and

other required information to the U.S. Senate, the U.S. House of

Representatives, and the U.S. Comptroller General prior to publication

of the rule in the Federal Register. This rule is not a ``major rule''

as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by January 26, 1999. Filing a petition for

reconsideration by the Administrator of this final rule does not affect

the finality of this rule for the purposes of judicial review, nor does

it extend the time within which a petition for judicial review may be

filed, and shall not postpone the effectiveness of such rule or action.

This action may not be challenged later in proceedings to enforce its

requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Particulate matter, Reporting and recordkeeping

requirements.

Dated: July 23, 1998.

Dennis Grams,

Regional Administrator, Region VII.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

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

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

Subpart AA--Missouri

2. Section 52.1320 is amended by adding paragraph (c)(109) to read

as follows:

Sec. 52.1320 Identification of plan.

* * * * *

[[Page 65561]]

(c) * * *

(109) This State Implementation Plan (SIP) revision submitted by

the state of Missouri on July 10, 1996, broadens the current rule

exceptions to include smoke-generating devices. This revision would

allow smoke generators to be used for military and other types of

training when operated under applicable requirements.

(i) Incorporation by reference.

(A) Regulation 10 CSR 10-3.080, ``Restriction of Emission of

Visible Air Contaminants,'' effective on May 30, 1996.

[FR Doc. 98-31541 Filed 11-25-98; 8:45 am]

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