[Federal Register Volume 65, Number 63 (Friday, March 31, 2000)]
[Rules and Regulations]
[Pages 17164-17166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-7881]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MO 099-1099; FRL-6568-8]


Approval and Promulgation of Implementation Plans; State of 
Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve a revision to the 
Missouri State Implementation Plan (SIP). This action approves a 
revision to Missouri's fugitive dust rule. This action also responds to 
comments submitted during the public comment period for the proposed 
approval action published on May 28, 1999. This action makes the state 
rule Federally enforceable.

DATES: This rule is effective on May 1, 2000.

ADDRESSES: Copies of the state submittals are available at the 
following address for inspection during normal business hours: 
Environmental Protection Agency, Air Planning and Development Branch, 
901 North 5th Street, Kansas City, Kansas 66101.

FOR FURTHER INFORMATION CONTACT: Wayne Kaiser at (913) 551-7603.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we, us, 
or our'' is used, we mean EPA. This section provides additional 
information by addressing the following questions:

    What is a SIP?
    What is the Federal approval process for a SIP?
    What does Federal approval of a state regulation mean to me?
    What is being addressed in this action?
    Have the requirements for approval of a SIP revision been met?
    What action is EPA taking?

I. 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 
established by EPA. These ambient standards are established under 
section 109 of the CAA, and they currently address six criteria 
pollutants. These pollutants are: Carbon monoxide, nitrogen dioxide, 
ozone, lead, particulate matter, and sulfur dioxide.
    Each state must submit these regulations and control strategies to 
EPA for approval and incorporation into the Federally enforceable SIP.
    Each Federally approved SIP 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 submits it to EPA for inclusion into the SIP. EPA must provide 
public notice and seek additional public comment regarding the proposed 
Federal action on the state submission. If adverse comments are 
received, they must be addressed prior to any final Federal action by 
EPA.
    All state regulations and supporting information approved by EPA 
under section 110 of the CAA are incorporated

[[Page 17165]]

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 are approved are not reproduced in their 
entirety in the CFR outright 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 
responsibility. However, after the regulation is Federally approved, 
EPA is authorized to take enforcement action against violators. 
Citizens are also offered legal recourse to address violations as 
described in the CAA.

What Is Being Addressed in This Document?

    EPA is taking final action to approve a revision to the Missouri 
fugitive dust rule, 10 CSR 10-6.170, Restriction of Particulate Matter 
to the Ambient Air Beyond the Premises of Origin. EPA proposed approval 
of this revision in 64 FR 28947 (May 28, 1999). The revision exempts 
from the rule certain fugitive emissions which occur under 
circumstances which are deemed by Missouri to be ``adverse weather 
conditions'' as described in the rule.
    EPA received comments from two commenters on the proposal. One 
commenter represents the Missouri Ag Industries Council, and the other 
represents the Missouri Limestone Producers Association. One of the 
comment letters was received after the close of the comment period. 
However, since the comments are nearly identical, EPA is responding to 
the issues raised by both commenters.
    Both commenters stated that they supported the revision to 
Missouri's fugitive dust rule to provide for the exemption which is the 
subject of this rulemaking. However, the commenters stated that they do 
not believe that the Missouri fugitive dust rule should be included in 
the Missouri SIP, primarily based on the argument that the emission 
reductions attributable to the rule cannot be quantified, and that 
reductions due to the rule would be insignificant.
    The objections to the underlying rule raised by the commenters 
involve issues which are not the subject of this rulemaking. EPA first 
approved the Missouri rule in 1972, and has approved various revisions 
to the rule since that time. In fact, the commenters raised issues 
similar to those raised in connection with this rulemaking, in a recent 
EPA rulemaking on prior state revisions to the fugitive dust rule, and 
EPA provided responses to those comments in connection with that 
rulemaking. See 63 FR 3037 (January 21, 1998). The commenters 
petitioned the U.S. Court of Appeals for the Eighth Circuit for review 
of the 1998 rulemaking, although the commenters elected not to litigate 
these specific arguments, and the Court denied the petition. See 
Missouri Limestone Producers Ass'n v. Browner, 165 F. 3d 619 (8th Cir. 
1999).
    The scope of today's action is limited to approval of Missouri's 
revision to the fugitive dust rule to add the exemption discussed above 
in this notice. Issues relating to the underlying rule are not relevant 
to this action and have previously been adequately addressed by EPA in 
a prior rulemaking. This approval does not reopen any aspects of the 
underlying rule.

Have the Requirements for Approval of a SIP Revision Been Met?

    The state submittal has met the public notice requirements for SIP 
submissions in accordance with 40 CFR 51.102. The submittal also 
satisfied the completeness criteria of 40 CFR Part 51, Appendix V. In 
addition, the revision meets the substantive SIP requirements of the 
CAA, including section 110 and implementing regulations as explained in 
detail in the notice of proposed rule making published May 28, 1999.

What Action Is EPA Taking?

    EPA is taking final action to approve a revision to the Missouri 
SIP. EPA is approving Missouri revised rule 10 CSR 10-6.170, submitted 
by the Director of the Missouri Department of Natural Resources on 
November 13, 1998, with a state effective date of August 30, 1998. This 
action makes the state rule Federally enforceable and ensures 
consistency between the state rules and the Federally approved SIP.

Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves preexisting requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this 
rule also does not significantly or uniquely affect the communities of 
tribal governments, as specified by Executive Order 13084 (63 FR 27655, 
May 10, 1998). This rule will not have substantial direct effects on 
the states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999), because it merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the CAA. 
This rule also is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the state 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. As required by section 3 of 
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this 
rule, EPA has taken the necessary steps to eliminate drafting errors 
and ambiguity, minimize potential litigation, and provide a clear legal 
standard for affected conduct. EPA has complied with Executive Order 
12630 (53 FR 8859, March 15, 1988) by examining the takings 
implications of the rule in accordance with the ``Attorney General's 
Supplemental Guidelines for the Evaluation of Risk and Avoidance of 
Unanticipated Takings'' issued under the Executive Order. This rule 
does not impose an information collection burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

[[Page 17166]]

    The Congressional Review Act, 5 U.S.C. section 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. EPA will submit a report containing this 
rule and other required information to the United States Senate, the 
United States House of Representatives, and the Comptroller General of 
the United States prior to publication of the rule in the Federal 
Register. A major rule cannot take effect until 60 days after it is 
published in the Federal Register. This action is not a ``major rule'' 
as defined by 5 U.S.C. section 804(2).
    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 May 31, 2000. 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, Intergovernmental relations, Particulate matter.

    Dated: March 17, 2000.
William Rice,
Acting Regional Administrator Region 7.

    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. In Sec. 52.1320 the table in paragraph (c) is amended by 
revising the entry for 10-6.170, under Chapter 6, to read as follows:


Sec. 52.1320  Identification of plan.

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    (c) * * *

                                                            EPA-Approved Missouri Regulations
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      Missouri citation                  Title                     State effective date              EPA approval date               Explanation
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                                                        Missouri Department of Natural Resources
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                  *                  *                  *                  *                  *                  *                  *
     Chapter 6--Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control Regulations for the State of Missouri
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                   *                  *                  *                  *                  *                  *                  *
10-6.170....................  Restriction of Particulate   August 30, 1998....................  65 FR 17166 and March 31,
                               Matter to the Ambient Air                                         2000.
                               Beyond the Premises of
                               Origin.
 
                   *                  *                  *                  *                  *                  *                  *
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[FR Doc. 00-7881 Filed 3-30-00; 8:45 am]
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