[Federal Register Volume 63, Number 13 (Wednesday, January 21, 1998)]
[Rules and Regulations]
[Pages 3037-3039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-1354]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MO 041-1041; FRL-5948-4]


Approval and Promulgation of Implementation Plans; State of 
Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is approving revisions to the Missouri State 
Implementation Plan (SIP) related to the regulation of emissions of 
particulate matter as fugitive dust. These revisions include the 
addition of a new fugitive dust rule which replaces four previous 
fugitive dust rules. 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: This rule is effective on February 20, 1998.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the: 
Environmental Protection Agency, Air Planning and Development Branch, 
726 Minnesota Avenue, Kansas City, Kansas 66101; and the EPA Air & 
Radiation Docket and Information Center, 401 M Street, SW., Washington, 
DC 20460.

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

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

    On August 15, 1997, the EPA proposed revisions to the Missouri SIP 
related to the regulation of fugitive particulate emissions (see 62 FR 
43679). Today, the EPA is taking final action on those proposed SIP 
revisions and is responding to comments received during the public 
comment period.
    Missouri originally adopted new rule 10 CSR 10-6.170 (the fugitive 
dust rule) on June 28, 1990. The new fugitive dust rule replaced four 
previous SIP-approved rules that were rescinded by the state on 
September 28, 1990 (effective date). The new fugitive dust rule was 
amended by Missouri and submitted to the EPA for SIP approval on 
November 20, 1996. The SIP revisions approved here, the incorporation 
of the new fugitive dust rule and rescission of the four previous 
rules, will reconcile the Missouri state regulations with the Federally 
approved SIP. In addition, the SIP revisions will strengthen the 
existing SIP by making the fugitive control requirements consistent 
throughout the state, by clarifying the actions which constitute 
prohibited emissions, and by clarifying the types of measures which 
must be implemented to minimize such emissions.

B. Response to Comments

    On September 2, 1997, the EPA received comments from the Missouri 
AG Industry Council (MO-AG) on the proposed fugitive dust SIP 
revisions. Subsequently, the EPA received comments from the Missouri 
Limestone Producers Association (MLPA) on September 5, 1997, and 
additional comments from MO-AG on September 11, 1997. Many of the 
comments submitted from MO-AG and MLPA overlap and will be addressed 
together where appropriate.
    Both commentors contend that the EPA has no authority to take final 
action on the fugitive dust SIP revisions in light of the pending 
appeal to the Missouri Air Conservation Commission (MACC). The appeal 
was requested on behalf of MLPA, the Missouri Concrete Association, and 
others, and is in regard to the Missouri Department of Natural 
Resources' (MDNR) request that the EPA approve 10 CSR 10-6.170 for 
incorporation into the SIP.
    The EPA acknowledges that an appeal has been granted by the MACC in 
regard to inclusion of the fugitive dust rule in the Missouri SIP. 
However, this in no way stays the EPA's processing of the SIP 
revisions. The fugitive dust rule was submitted by the Director of the 
MDNR on February 24, 1997, pursuant to authority granted by the 
Missouri statutes and rule 10 CSR 10-1.010(2)(B)6. Moreover, Missouri 
has not withdrawn its request to include the fugitive dust rule in the 
SIP. Therefore, the EPA has determined that Missouri's submission meets 
the requirements of 40 CFR 51.103(a), relating to procedures for 
submission of plan revisions.
    Additionally, the commentors dispute the EPA's statement that the 
fugitive dust rule will help maintain compliance with the 
PM<INF>10</INF> NAAQS. The commentors assert that the EPA has failed to 
provide sufficient scientific evidence to support this claim, that it 
is contrary to assertions made by MDNR staff when the consolidated rule 
was originally adopted, that the fugitive dust rule is in fact a 
``nuisance rule,'' and that EPA entered into an ``agreement'' with the 
MDNR not to include the fugitive dust rule in the SIP. The EPA does not 
believe that any of the

[[Page 3038]]

commentors' contentions are an adequate basis, nor are they fully 
accurate, to disapprove the Missouri submission, as discussed below.
    In regard to the scientific evidence supporting the regulation of 
fugitive dust as a means of reducing PM<INF>10</INF> emissions and 
thereby contributing to efforts to maintain the NAAQS, it is well 
established that particulate matter size distribution for fugitive dust 
emissions typically includes a significant subset of particles with 
aerodynamic diameters in the range of 0 to 10 microns (i.e., particles 
meeting the definition of PM<INF>10</INF>). This is evidenced by the 
particle size distributions provided in Appendix B of the EPA's 
Compilation of Air Pollution Emission Factors (AP-42), 5th ed. (1995). 
For example, when considering uncontrolled process fugitive emissions 
from material handling and processing of aggregate and unprocessed ore, 
Appendix B, Table B.2.2 of AP-42 indicates that the cumulative percent 
of particles with a particle diameter less than 10 microns is 50 
percent. In addition, in AP-42 the emission factors and estimation 
methods provided for certain fugitive sources reinforce that fugitive 
dust is a significant source of PM<INF>10</INF>. For example, particle 
size multipliers provided in the estimation methods for calculating 
fugitive PM<INF>10</INF> emissions from unpaved roads (section 13.2.1) 
and aggregate handling and storage (section 13.2.2) also indicate that 
PM<INF>10</INF> accounts for approximately 50 percent of all fugitive 
particulate emitted. These estimation methods are based on tests 
performed by a sound methodology at many randomly chosen facilities 
with a source population sufficient to minimize variability, and are 
therefore considered capable of providing an excellent estimation of 
emissions.
    In light of the available technical information, the EPA has 
determined that control of fugitive dust emissions will assist in the 
protection of the PM<INF>10</INF> NAAQS, and is an appropriate emission 
control for meeting applicable requirements of the Act (section 
110(a)(2)(A)). The EPA has also determined that the Missouri rule meets 
the other applicable requirements of section 110 of the Act. Although 
one commentor referenced an assertion by an MDNR official from a public 
hearing held in 1990 indicating that, at least at that time, MDNR did 
not believe that the then-existing fugitive dust rule had direct 
relevance to section 110, the commentor did not provide any technical 
information indicating the basis for this assertion, and the EPA is not 
aware of a technical basis for it. In fact, when Missouri adopted 
revisions to the rule in 1996, MDNR specifically concluded that the 
Missouri rule helps to protect public welfare (21 MoReg 2015, col. 2, 
September 16, 1996), which is also the basis for the EPA's secondary 
PM<INF>10</INF>, as explained below. Whatever the position might have 
been in 1990, Missouri now believes that the rule should be included in 
the SIP, and the available technical information clearly supports the 
benefit of fugitive dust controls in protecting the NAAQS. Therefore, 
the EPA does not have a basis under the Act to disapprove the state's 
submission, and is taking final action to approve it.
    The commentors also assert that the fugitive dust rule should be 
treated as a nuisance rule. In fact, MO-AG specifically states that 
``the fugitive dust rule is a ``nuisance rule'' and not a NAAQS 
compliance rule.'' The term ``nuisance rule'' is often associated with 
rules such as odor rules that may not be considered to directly protect 
public health. However, a nuisance rule may in fact have a beneficial 
impact on public welfare. For example, the reduction of fugitive 
particulate matter may help to protect vegetation and to prevent damage 
to and deterioration of property. In this respect, the fugitive dust 
rule will help to maintain secondary PM<INF>10</INF> NAAQS which is 
associated with public welfare. (See, section 302(h), which defines 
welfare effects, which secondary NAAQS are set to protect, to include 
effects on ``damage to and deterioration of property'' and effects on 
``personal comfort and well-being.'') Thus, the mere fact that an air 
pollution control requirement may be characterized as a ``nuisance 
rule'' does not mean that the requirement is unrelated to protection of 
the NAAQS. In addition to the role of the fugitive dust rule in 
maintaining the secondary PM<INF>10</INF> NAAQS, it also serves to 
protect the primary PM<INF>10</INF> NAAQS. See the EPA's response to 
the previous comment.
    Also, one commentor takes issue with the EPA's statement that ``the 
impetus for the development of 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.'' However, the rule 
was developed to replace four existing SIP rules that served just that 
function. These fugitive dust rules have been part of the Federally 
enforceable SIP since originally submitted in 1972 and have been 
revised as part of the SIP on a number of occasions. To remove these 
rules from the SIP, without replacing them with equivalent fugitive 
dust rule(s), would be considered a relaxation of the SIP under section 
110, the state would then be required to demonstrate that the rules are 
not needed for maintenance of the standard. The state has chosen to 
retain the fugitive dust controls in the SIP. The EPA has no basis 
under the Act for rejecting the state's choice. The EPA did receive a 
letter from the Director of MDNR requesting that the EPA rescind four 
old fugitive dust rules from the SIP, but suggesting that by ``prior 
agreement'' with the EPA the rescinded rules not be replaced by 10 CSR 
10-6.170. This letter was dated September 6, 1990, and is acknowledged 
in Part II of the proposed rulemaking published in the August 15, 1997, 
Federal Register. However, any determination to include the fugitive 
dust rule in the SIP is appropriately made in consideration of specific 
technical, economic, and environmental factors, and in relation to 
relevant statutory and regulatory requirements, and not on any informal 
agreement that may have existed between the EPA and MDNR. The MDNR has 
determined that the consolidated fugitive dust rule should be submitted 
as part of the SIP, and the EPA has no basis to reject the state's 
determination. Moreover, the commentor has not provided any support for 
the assertion that the purported ``breach'' of some agreement between 
the EPA and MDNR is detrimental to the public. In fact, as has been 
substantiated here, the inclusion of the rule in the SIP is to the 
public benefit since it helps to maintain compliance with the 
PM<INF>10</INF> NAAQS and thereby protects the public health and 
welfare.
    Although not specifically a concern relating to the SIP, the EPA 
also notes that the state determined that inclusion of the consolidated 
rule in the SIP would simplify the permitting process under Title V of 
the Act. This is accomplished by ensuring that the regulations adopted 
by the state and those maintained as part of the SIP are consistent, 
since both types of regulations would be required to be included in 
state operating permits. The state has determined that consolidation of 
the various fugitive dust rules and inclusion of all of the rules in 
the SIP will reduce the regulatory burden on the permitting authority 
and on regulated sources.

II. Final Action

    In this document, the EPA takes final action to approve revisions 
to the Missouri SIP as submitted on September 25, 1990, and November 
20, 1996 (with supplemental information submitted February 24, 1997). 
These revisions include the addition of new rule 10 CSR 10-6.170, 
Restriction of Particulate

[[Page 3039]]

Matter to the Ambient Air Beyond the Premises of Origin, and the 
rescission of rules 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 
CSR 10-5.100, 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

    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 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 promulgated 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.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, the EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives, and the Comptroller General of the 
General Accounting Office prior to publication of this rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

E. 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 March 23, 1998. 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, Reporting 
and recordkeeping requirements.

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

    Dated: December 15, 1997.
Dennis Grams,
Regional Administrator.

    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 et seq.

Subpart AA--Missouri

    2. Section 52.1320 is amended by adding paragraph (c)(102) to read 
as follows:


Sec. 52.1320  Identification of plan.

* * * * *
    (c) * * *
    (102) Revised regulations for the control of fugitive particulate 
matter emissions were submitted by the Missouri Department of Natural 
Resources (MDNR) on September 25, 1990, and on November 20, 1996.
    (i) Incorporation by reference.
    (A) Regulation 10 CSR 10-6.170, entitled Restriction of Particulate 
Matter Beyond the Premises of Origin, effective November 30, 1990, as 
amended October 30, 1996.
    (B) Rescission of regulation 10 CSR 10-2.050, entitled Preventing 
Particulate Matter From Becoming Airborne, effective September 28, 
1990.
    (C) Rescission of regulation 10 CSR 10-3.070, entitled Restriction 
of Particulate Matter From Becoming Airborne, effective September 28, 
1990.
    (D) Rescission of regulation 10 CSR 10-4.050, entitled Preventing 
Particulate Matter From Becoming Airborne, effective September 28, 
1990.
    (E) Rescission of regulation 10 CSR 10-5.100, entitled Preventing 
Particulate Matter From Becoming Airborne, effective on September 28, 
1990.
    (ii) Additional material.
    (A) Letter from Missouri submitted on February 24, 1997, pertaining 
to the submission of supplemental documentation.

[FR Doc. 98-1354 Filed 1-20-98; 8:45 am]
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