# Approval and Promulgation of Implementation Plans; State of Missouri

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URL: https://www.frixlaw.com/law-library/documents/fr%3A99-13660

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** May 28, 1999
- **Citation:** 64 FR 28947

## Text

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.

-----------------------------------------------------------------------

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]
BILLING CODE 6560-50-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-13660. Public record. Not legal advice.