Approval and Promulgation of Implementation Plans; State of Missouri

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region VII Docket No. MO 060-1060; FRL-6351-5]

Approval and Promulgation of Implementation Plans; State of

Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the State

Implementation Plan (SIP) submitted by the state of Missouri to amend

the fugitive dust rule. The proposed revisions amend the state fugitive

dust rule in order to provide an exemption for adverse or unusual

weather conditions. The fugitive dust rule is necessary to help

maintain compliance with the National Ambient Air Quality Standards

(NAAQS) for particulate matter.

DATES: Comments must be received on or before June 28, 1999.

ADDRESSES: All comments should be addressed to: Aaron Worstell,

Environmental Protection Agency, Air Planning and Development Branch,

726 Minnesota Avenue, Kansas City, Kansas 66101, 913-551-7787.

Copies of the state submittal(s) are available at the following

addresses 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 and Radiation Docket and Information Center, Air Docket

(6102), 401 M Street, S.W., Washington, D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Aaron Worstell, Environmental

Protection Agency, Air Planning and Development Branch, 726 Minnesota

Avenue, Kansas City, Kansas 66101, 913-551-7787.

SUPPLEMENTARY INFORMATION:

Background

What Is a SIP?

Section 110 of the Clean Air Act (CAA) requires states to develop

air pollution regulations and control strategies to ensure that state

air quality meets the NAAQS established by EPA. These ambient standards

are established under section 109 of the CAA and they currently address

six criteria pollutants. These pollutants are: CO, nitrogen dioxide,

ozone, lead, PM10, and sulfur dioxide.

Each state must submit these regulations and control strategies to

EPA for approval and incorporation into the Federally enforceable SIP.

The CAA requires each state to have a Federally approved SIP which

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.

What Is the Federal Approval Process for a SIP?

In order for state regulations to be incorporated into the

Federally enforceable 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 state-authorized rulemaking

body.

Once a state rule, regulation, or control strategy is adopted, the

state may submit the adopted provisions to EPA and request that these

provisions be included in the Federally enforceable SIP. EPA must then

decide on an appropriate Federal action, provide public notice on this

action, and seek additional public comment regarding this action. If

adverse comments are received, they must be addressed prior to a final

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 were approved are not reproduced in their entirety in the CFR but

are ``incorporated by reference,'' which means that EPA has approved a

given state regulation with a specific effective date.

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

function. However, once the regulation is Federally approved, EPA and

the public may take enforcement action against violators of these

regulations.

What Is Being Acted on in This Document?

On January 21, 1998, EPA approved revisions to the Missouri SIP

which included the addition of rule 10 CSR 10-6.170, Restriction of

Particulate Matter to the Ambient Air Beyond the Premises of Origin

(see 63 FR 3037). Subsequently, on November 25, 1998, Missouri

submitted an amended 10 CSR 10-6.170 (the fugitive dust rule) to EPA

and requested that it be included as part of the SIP. It is the amended

fugitive dust rule for which EPA is proposing approval today.

In general, the fugitive dust rule limits fugitive dust emissions

onto adjacent property and into the atmosphere. The rule achieves this

by prohibiting the deposition of particulate matter onto surrounding

property and by restricting visible emissions. In addition, the rule

requires that reasonable control measures be used to correct any

noncompliance situation that may occur and lists several typical

fugitive dust control measures. Finally, the rule provides specific

exemptions where the fugitive dust rule would not be practical (e.g.,

agricultural operations such as tilling).

The amended fugitive dust rule proposed here today adds an

exemption for activities that would otherwise be subject to control

requirements except for the occurrence of adverse or unusual weather

conditions. These weather conditions include, but are not limited to:

high winds, extended dry weather periods, and extreme cold weather

periods. However, the staff director has the discretion to determine

what constitutes ``adverse or unusual weather.'' The fugitive dust rule

is applicable throughout the state of Missouri.

EPA believes that the exemption merely recognizes that fugitive

emissions may occur despite the application of reasonable control

measures and that, in some instances, conditions beyond the control of

the source owner or operator may cause fugitive dust emissions beyond

the property line of the source. In such cases, the rule provides

authority for the state to exempt sources from the prohibition.

In addition to the new exemption, the amendments include minor

renumbering and wording changes which are unsubstantial and do not

effect the application or requirements of the rule.

[[Page 28948]]

The proposed SIP revisions are amendments to a regulation necessary

to help maintain compliance with the particulate matter NAAQS in

Missouri.

What Action Is Being Proposed by EPA?

EPA is proposing to approve revisions to the SIP submitted by the

state of Missouri on November 25, 1998, amending rule 10 CSR 10-6.170,

Restriction of Particulate Matter to the Ambient Air Beyond the

Premises of Origin.

Nothing in this action should be construed as permitting, 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.

Administrative Requirements

A. Executive Order (E.O.) 12866

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

regulatory action from E.O. 12866, entitled ``Regulatory Planning and

Review.''

B. E.O. 12875

Under E.O. 12875, Enhancing the Intergovernmental Partnership, 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 EPA consults with

those governments. If EPA complies by consulting, E.O. 12875 requires

EPA to provide to the OMB a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, a summary of 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, E.O. 12875 requires 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 proposal does not create a mandate on state, local, or

tribal governments. The proposal does not impose any enforceable duties

on these entities. Accordingly, the requirements of section 1(a) of

E.O. 12875 do not apply to this proposal.

C. E.O. 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 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 proposal is not subject to E.O. 13045 because it is not an

economically significant regulatory action as defined by E.O. 12866,

and it does not address an environmental health or safety risk that

would have a disproportionate effect on children.

D. E.O. 13084

Under E.O. 13084, 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 EPA consults with those

governments. If EPA complies by consulting, E.O. 13084 requires EPA to

provide to the OMB, in a separately identified section of the preamble

to the rule, a description of the extent of 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, E.O. 13084 requires 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 proposal 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 E.O. 13084 do not apply to this

proposal.

E. Regulatory Flexibility Act (RFA)

The RFA 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 proposal does

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

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 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, EPA

must prepare a budgetary impact statement to accompany any proposed or

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

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

or to private sector, of $100 million or more. Under section 205, 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 EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the proposed approval action would not

include a Federal mandate that may result in estimated annual costs of

$100 million or more to either state, local, or tribal governments in

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

to approve 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, would result

from this action.

[[Page 28949]]

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Particulate

matter.

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

Dated: May 18, 1999.

William Rice,

Acting Regional Administrator, Region VII.

[FR Doc. 99-13660 Filed 5-27-99; 8:45 am]

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