[Federal Register Volume 62, Number 158 (Friday, August 15, 1997)]
[Proposed Rules]
[Pages 43679-43681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21695]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MO 033-1033; FRL-5875-6]


Approval and Promulgation of Implementation Plans; State of 
Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to approve State Implementation Plan 
(SIP) revisions submitted by the state of Missouri to create a new 
statewide fugitive dust rule. In addition, the EPA is proposing to 
rescind four area specific

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fugitive dust rules which the new rule replaces. The new fugitive dust 
rule provides a consistent and enforceable mechanism to help maintain 
compliance with the National Ambient Air Quality Standards (NAAQS) for 
particulate matter.

DATES: Comments must be received on or before September 15, 1997.

ADDRESSES: Comments may be mailed to Aaron J. Worstell, Environmental 
Protection Agency, Air Branch, 726 Minnesota Avenue, Kansas City, 
Kansas 66101.

FOR FURTHER INFORMATION CONTACT: Aaron J. Worstell at (913) 551-7787.

SUPPLEMENTARY INFORMATION:

I. Background

    Missouri originally adopted the new fugitive dust rule (10 CSR 10-
6.170) on June 28, 1990, and it became effective on November 30, 1990. 
It was not submitted to the EPA at that time, but was subsequently 
amended by the state and submitted to the EPA on November 20, 1996 
(with supplemental information provided on February 24, 1997). Missouri 
adopted the amended rule on June 27, 1996, and it became effective on 
October 30, 1996.
    In conjunction with Missouri's request for SIP approval of 10 CSR 
10-6.170, the EPA is addressing Missouri's submittal of September 25, 
1990, requesting rescission of four area specific fugitive dust rules 
(10 CSR 10-2.050, 3.070, 4.050, and 5.100).
    The primary purpose of the new fugitive dust rule is to ``restrict 
the emission of particulate matter to the ambient air beyond the 
premises of origin.'' In more general terms, the rule limits fugitive 
dust emissions onto adjacent property and to 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 specifies several typical fugitive dust measures to be 
employed to prevent emissions to surrounding property. Finally, the 
rule provides specific exceptions where the state has determined that 
fugitive dust controls would not be practical (e.g., agricultural 
operations such as tilling).
    The impetus for the development of Missouri rule 10 CSR 10-6.170 
was the need for a consistent, statewide rule that serves to protect 
the particulate matter NAAQS by limiting fugitive dust emissions. Prior 
to the initial development of this rule in 1990, the following four 
area specific rules regulated fugitive emissions in Missouri: 10 CSR 
10-2.050, Preventing Particulate Matter From Becoming Airborne (Kansas 
City); 10 CSR 10-3.070, Restriction of Particulate Matter From Becoming 
Airborne (Outstate); CSR 10-4.050, Preventing Particulate Matter From 
Becoming Airborne (Springfield); and CSR 10-2.050, Preventing 
Particulate Matter From Becoming Airborne (St. Louis). The EPA approved 
these rules (see 37 FR 10842) as part of the original SIP submission in 
1972.
    The current fugitive dust SIP rules are not only applicable only in 
limited areas, but they also contain varying applicability provisions, 
enforcement mechanisms, and exceptions. Rule 10 CSR 10-5.010, 
applicable only in St. Louis, prohibits particulate matter from 
becoming airborne but does not state specific visual or property line 
standard limitations. Rule 10 CSR 10-4.050, applicable only in 
Springfield, introduces visible limitations plus a complaint-based 
enforcement mechanism. Rules 10 CSR 10-3.070 and 10 CSR 10-2.050, the 
Outstate rule and Kansas City rule, respectively, include both visible 
and property line standard limitations. The visible limitations for 
these latter two rules apply to dust-containing particles greater than 
40 microns in diameter. Thus, the two rules are not completely in 
concert with the more recent particulate matter standard that includes 
only those particles nominally smaller than 10 microns. The property 
line standard limits the concentration of particulate matter at any 
inhabited place to specified concentrations as determined by a high-
volume sampler or soiling index. All four rules require reasonable 
control measures for certain activities, but only three provide 
specific exceptions from the rule. This lack of consistency among the 
SIP rules is potentially confusing for industries with multiple sources 
or portable sources, complicating compliance efforts.
    While Missouri has rescinded the rules from state regulation, they 
continue to be active elements of the SIP and are therefore federally 
enforceable. The new fugitive dust rule will reconcile the Missouri 
state regulations and the SIP. In addition, the new rule improves upon 
the existing SIP rules since it: (1) Requires reasonable control 
measures on a broader range of fugitive dust sources; (2) abandons the 
40-micron qualification and property line standards, making the rule 
consistent with current NAAQS and simplifying compliance determinations 
for sources and regulatory agencies; and (3) abandons the complaint-
based enforcement mechanism present in some of the rules. Overall, this 
rule will help to maintain compliance with the particulate matter NAAQS 
in Missouri.
    The EPA believes that the revised rule is approvable because it 
strengthens the existing SIP by making the fugitive dust control 
requirements consistent, and by clarifying the actions which constitute 
prohibited emissions, and the types of measures which must be 
implemented to minimize or eliminate such emissions.

II. Proposed Action

    The EPA is proposing to approve revisions to the SIP submitted by 
the state of Missouri on September 25, 1990, November 20, 1996, and 
February 24, 1997. These revisions include the addition of Rule 10 CSR 
10-6.170, Restriction of Particulate Matter to the Ambient Air Beyond 
the Premises of Origin; and the rescission of 10 CSR 10-2.050, 
Preventing Particulate Matter From Becoming Airborne (Kansas City), 10 
CSR 10-3.070, Restriction of Particulate Matter From Becoming Airborne 
(Outstate), 10 CSR 10-4.050, Preventing Particulate Matter From 
Becoming Airborne (Springfield), and 10 CSR 10-2.050, Preventing 
Particulate Matter From Becoming Airborne (St. Louis).
    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 has exempted this regulatory 
action from Executive Order 12866 review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5. U.S.C. 600 et seq., the 
EPA must prepare a regulatory flexibility analysis assessing the impact 
of any proposed or final rule on small entities (5 U.S.C. 603 and 604). 
Alternatively, the EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    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

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Federal SIP approval does not impose any new requirements, the 
Administrator certifies that it does not have a significant impact on 
any small entities affected. Moreover, due to the nature of the 
Federal-state relationship under the CAA, preparation of a regulatory 
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. 
E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2)).

C. 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: August 4, 1997.
Michael J. Sanderson,
Acting Regional Administrator.
[FR Doc. 97-21695 Filed 8-14-97; 8:45 am]
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