[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previous SIP-approved rules that were rescinded by the state on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
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
[[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 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
[[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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