Approval and Promulgation of Revisions to the Tennessee State Implementation Plan

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TN-197-1-9834a; FRL-6205-1]

Approval and Promulgation of Revisions to the Tennessee State

Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving revisions to Paragraph 1200-3-18-.83(1) of

the Tennessee State Implementation Plan (SIP). The revisions address

how to determine the efficiency of Volatile Organic Compound (VOC)

capture systems.

DATES: This direct final rule is effective on February 22, 1999 without

further notice, unless EPA receives adverse comment by January 21,

1999. If EPA receives adverse comments, we 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: You should address comments on this action to Michele

Notarianni at the EPA, Region 4 Air, Pesticides, and Toxics Management

Division, Air Planning Branch, 61 Forsyth Street, SW, Atlanta, Georgia

30303.

Copies of documents related to this action are available for the

public to review during normal business hours at the locations below.

If you would like to review these documents, please make an appointment

with the appropriate office at least 24 hours before the visiting day.

Reference file TN 197. The Region 4 office may have additional

documents not available at the other locations.

Air and Radiation Docket and Information Center (Air Docket 6102),

U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC

20460.

Environmental Protection Agency, Region 4 Air, Pesticides, and

Toxics Management Division, Air Planning Branch, 61 Forsyth Street, SW,

Atlanta, Georgia 30303-3104. Michele Notarianni, (404) 562-9031.

Tennessee Department of Environment and Conservation, Division of

Air Pollution Control, L & C Annex, 9th Floor, 401 Church Street,

Nashville, Tennessee 37243-1531. Phone number: (615) 532-0554.

FOR FURTHER INFORMATION CONTACT: Michele Notarianni at (404) 562-9031.

SUPPLEMENTARY INFORMATION:

I. Background

EPA is approving revisions to Paragraph 1200-3-18-.83(1) of the

Tennessee SIP. These revisions are as follows.

Change the primary reference source for capture efficiency

test requirements and specifications to EPA's Capture Efficiency

Testing Guidance dated January 9, 1995;

Specify where to access EPA's guidance document; and

Require EPA's approval for alternate methods or procedures

other than those specified in EPA's guidance in addition to the

approval of the Technical Secretary of Tennessee's Air Pollution

Control Board.

The State of Tennessee must make this rule change to gain approval

of Tennessee's VOC regulations to meet requirements under Section

182(b)(2) of the Clean Air Act. Section 182(b)(2) requires states to

submit rule revisions requiring implementation of reasonably available

control technology (RACT) for certain VOC sources. (These requirements

are commonly referenced as ``VOC RACT Catch-Ups.'') The State of

Tennessee submitted the revisions to its air pollution control

regulations through the Tennessee Air Pollution Control Board on May 8,

1997, after holding a public hearing on September 17, 1996, and

securing Board approval.

II. Analysis of State's Submittal

EPA is approving the State of Tennessee's rule revisions because

the revisions correct the references to capture efficiency test

requirements and specifications to meet the final EPA requirements,

making these requirements fully approvable.

III. Final Action

EPA is approving the aforementioned changes to the SIP. EPA is

publishing this rule without prior proposal because the Agency views

this as a noncontroversial amendment and anticipates no adverse

comments. However, in the proposed rules section of this Federal

Register publication, EPA is publishing a separate document that will

serve as the proposal to approve the SIP revision should relevant

adverse comments be filed. This rule will be effective February 22,

1999 without further notice unless the Agency receives relevant adverse

comments by January 21, 1999.

If the EPA receives such comments, then EPA will publish a notice

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. Only 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 22,

1999 and no further action will be taken on the proposed rule.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and Review.''

B. Executive Order 12875

Under Executive Order 12875, 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 EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget a description of the extent of 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, Executive Order 12875

requires 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. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

C. Executive Order 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 EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria,

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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.

D. Executive Order 13084

Under Executive Order 13084, 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 EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of 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, Executive Order 13084 requires 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. This action does not involve

or impose any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (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 Clean Air Act 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

Clean Air Act, preparation of flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids 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, 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, 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 EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

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

pre-existing 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.

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. 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 Comptroller General of the United States 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 Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by February 22, 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, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Ozone.

Dated: November 3, 1998.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

Part 52 of chapter I, title 40, 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 RR--Tennessee

2. Section 52.2220, is amended by adding paragraph (c)(163) to read

as follows:

Sec. 52.2220 Identification of plan.

* * * * *

(c) * * *

(163) Revisions to the Tennessee Air Pollution Control Regulations

submitted on May 8, 1997.

(i) Incorporation by reference.

Paragraph (1) of Rule 1200-3-18-.83 TEST METHODS AND COMPLIANCE

PROCEDURES: EMISSION CAPTURE AND DESTRUCTION OR REMOVAL EFFICIENCY AND

MONITORING REQUIREMENTS effective on April 15, 1997.

(ii) Other material. None.

[FR Doc. 98-33837 Filed 12-21-98; 8:45 am]

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