[Federal Register Volume 63, Number 235 (Tuesday, December 8, 1998)]
[Rules and Regulations]
[Pages 67591-67594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32419]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52
[Region VII Docket No. MO-057-1057a; FRL-6197-1]


Approval and Promulgation of Implementation Plans; State of 
Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is announcing a 
revision to the State Implementation Plan (SIP) which incorporates new 
Missouri rule 10 CSR 10-6.330 entitled ``Restriction of Emissions from 
Batch-Type Charcoal Kilns.'' Missouri's rule requires a

[[Page 67592]]

substantial reduction of emissions of volatile organic compounds (VOC) 
(some of which are toxic), particulate matter (PM10), and 
carbon monoxide (CO) from charcoal-producing ovens commonly called 
charcoal kilns. The implementation of this rule will result in a 
significant improvement in air quality, especially in central and 
southern Missouri where most of these facilities are located.

DATES: This direct final rule is effective on February 8, 1999 without 
further notice, unless the EPA receives adverse comment by January 7, 
1999. If adverse comment is received, the EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: All comments should be addressed to: Joshua A. Tapp at 
Environmental Protection Agency, Air Branch, 726 Minnesota Avenue, 
Kansas City, Kansas 66101.
    Copies of the state submittal 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: Joshua A. Tapp of the Environmental 
Protection Agency at (913) 551-7606.

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 National Ambient Air Quality Standards (NAAQS) 
established by the 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.
    Currently, each state has 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 the EPA and request that 
these provisions be included in the Federally enforceable SIP. The 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 the EPA.
    All state regulations and supporting information approved by the 
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 the 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, the EPA 
and the public may take enforcement action against violators of these 
regulations if the state fails to do so.

What is being acted on in this document?

    Missouri rule 10 CSR 10-6.330, entitled ``Restriction of Emissions 
from Batch-Type Charcoal Kilns,'' applies throughout the state of 
Missouri to batch-type charcoal kilns. The majority of these facilities 
are located in south-central Missouri near the lumber mills which are 
the primary provider of the waste wood materials commonly used to 
produce charcoal.
    Until recently, batch-type charcoal kilns have operated under 
exemptions from Missouri visibility regulations (10 CSR 10-3.080) and 
PM10 regulations (10 CSR 10-3.050). In 1991 and 1996, the 
EPA and the Missouri Department of Natural Resources (MDNR) conducted 
ambient air quality studies in response to citizen complaints regarding 
air quality. Data from these studies have shown that this industry has 
the potential to cause or contribute to violations of the NAAQS for 
PM10.
    In response to these data, MDNR and the charcoal industry worked 
together to develop a plan which ensures maintenance of the NAAQS for 
PM10, but which also concurrently addresses emissions of VOC 
and CO.
    This effort required an evaluation of best performing existing 
control technologies, new control technologies, and the best available 
work practices. Based on this review, MDNR determined that afterburners 
were an acceptable control technology which were capable of reducing 
emissions of PM10 by 98 percent, and CO and VOCs by 99 
percent.
    MDNR worked with the industry to convert this plan into an 
enforceable regulation which embodied these requirements in the form of 
emission limits. Monitoring, maintenance and operating work practices, 
recordkeeping, and reporting requirements were also incorporated into 
the rule to improve emission reductions and compliance demonstrations. 
MDNR held a public hearing on this rule on February 3, 1998. No 
negative comments were received. The Missouri Air Conservation 
Commission adopted the rule on March 26, 1998, and it became effective 
on July 30, 1998.

What action is being taken by the EPA?

    MDNR submitted this rule for incorporation into the Federally 
approved SIP on July 30, 1998.
    The EPA has reviewed this submittal against all applicable 
statutory, regulatory, and policy guidelines, and has determined that 
this rule is consistent with all applicable requirements and will 
result in a substantial improvement in air quality.
    Because the industry participated in the development of this rule, 
and because there was broad support for this rule during that state 
administrative and public processes, the EPA views its approval of this 
rule as non-controversial.
    The EPA is, therefore, taking direct final action to approve this 
rule as a revision to the Missouri SIP.

[[Page 67593]]

    The EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial submittal and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, the EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
adverse comments be filed. This rule will be effective February 8, 1999 
without further notice unless the Agency receives adverse comments by 
January 7, 1999.
    If the EPA receives such comments, then the EPA will publish a 
document withdrawing the final rule and informing the public that the 
rule will not take effect. All public comments received will then be 
addressed in a subsequent final rule based on the proposed rule. The 
EPA will not institute a second comment period. Parties interested in 
commenting should do so at this time. If no such comments are received, 
the public is advised that this rule will be effective on February 8, 
1999 and no further action will be taken on the proposed rule.

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, 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, E.O. 12875 requires the EPA to provide to 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, E.O. 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. See Section F, ``Unfunded Mandates,'' listed below. 
Accordingly, the requirements of section 1(a) of E.O. 12875 do not 
apply to this rule.

C. E.O. 13084

    Under E.O. 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, E.O. 13084 
requires the EPA to provide to 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, E.O. 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. No tribes operated or own any 
Missouri charcoal kilns, nor are any tribal lands located near these 
facilities. Accordingly, the requirements of section 3(b) of E.O. 13084 
do not apply to this rule.

D. 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 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 
that would have a disproportionate effect on children.

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 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 
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 
annual 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 promulgated does 
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 
approves preexisting requirements under state or local law, and imposes 
no

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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 February 8, 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, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: November 24, 1998.
Dennis Grams,
P.E., 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. 7401-7671q.

Subpart AA--Missouri

    2. Section 52.1320 is amended by adding new paragraph (c)(111) to 
read as follows:


52.1320  Identification of plan.

* * * * *
    (c) * * *
    (111) A revision submitted by the Governor's designee on July 30, 
1998, that reduces air emissions from batch-type charcoal kilns 
throughout the state of Missouri.
    (i) Incorporation by reference:
    (A) New Missouri rule 10 CSR 10-6.330, Restriction of Emissions 
from Batch-Type Charcoal Kilns, effective July 30, 1998.
[FR Doc. 98-32419 Filed 12-7-98; 8:45 am]
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