Federal Register / Vol. 63, No. 13 / Wednesday, January 21, 1998 / Rules and Regulations 3037

documentation. A Categorical Exclusion

Determination and environmental

analysis checklist will be available for

inspection and copying in the docket to

be maintained at the address listed in

ADDRESSES.

List of Subjects in 33 CFR Part 100

Marine safety, Navigation (water),

Regattas and Marine parades.

Regulation

For the reasons set out in the

preamble the Coast Guard proposes to

amend 33 CFR Part 100, section

100.1102, Table I, as follows:

PART 100—[AMENDED]

1. The authority citation for Part 100

continues to read as follows:

Authority: 33 U.S.C. 1233; 49 CFR 1.46.

2. Section 100.1102, Table I is

amended by adding an entry for the

Laughlin Aquamoto Sports Challenge

and Expo immediately following the

entry for the Laughlin Classic to read as

follows:

§ 100.102— Marine Events on the

Colorado River, between Davis Dam

(Bullhead City, Arizona) and Headgate Dam

(Parker, Arizona).

* * * * *

Table 1

* * * * *

Laughlin Aquamoto Sports Challenge

and Expo

Sponsor: Baja Promotions

Dates: The last Thursday of May every

year, lasting a total of 4 days, ending on

Sunday, per the following schedule: 1.)

the first day of the event, the last

Thursday of May each year, from 3 p.m

PDT to 5 p.m. PDT, 2.) the second day

of the event, Friday, from 8 a.m. PDT to

2 p.m. PDT, and from 3:30 p.m. PDT to

6 p.m. PDT, 3.) the third day of the

event, Saturday, from 8 a.m. PDT to 1:30

p.m. PDT, and from 4 p.m. PDT to 5

p.m. PDT; and, 4.) the fourth and final

day of the event, Sunday, from 9 a.m.

PDT to 1:30 p.m. PDT, from 3 p.m. PDT

to 4 p.m. PDT, and from 6 p.m. PDT to

7 p.m. PDT.

Where: That portion of the Colorado

River near Laughlin, Nevada, from Davis

Dam to Harrah’s Hotel and Casino.

Dated: December 19, 1997.

J.C. Card,

Vice Admiral, U.S. Coast Guard, Commander,

Eleventh Coast Guard District.

[FR Doc. 98–1270 Filed 1–20–98; 8:45 am]

BILLING CODE 4910–14–M

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.

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 SIPapproved 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 PM10 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
3038 Federal Register / Vol. 63, No. 13 / Wednesday, January 21, 1998 / Rules and Regulations

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 PM10

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 PM10). 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

PM10. For example, particle size

multipliers provided in the estimation

methods for calculating fugitive PM10

emissions from unpaved roads (section

13.2.1) and aggregate handling and

storage (section 13.2.2) also indicate that

PM10 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 PM10

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

PM10, 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 PM10

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 PM10 NAAQS, it also serves

to protect the primary PM10 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 PM10 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
Federal Register / Vol. 63, No. 13 / Wednesday, January 21, 1998 / Rules and Regulations 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:

§ 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]

BILLING CODE 6560–50–P

FEDERAL EMERGENCY

MANAGEMENT AGENCY

44 CFR Part 65

[Docket No. FEMA–7245]

Changes in Flood Elevation

Determinations

AGENCY: Federal Emergency

Management Agency, FEMA.

ACTION: Interim rule.

SUMMARY: This interim rule lists

communities where modification of the

base (1% annual chance) flood

elevations is appropriate because of new

scientific or technical data. New flood

insurance premium rates will be

calculated from the modified base flood