02-22089. Approval and Promulgation of Implementation Plans Tennessee: Approval of Revisions to Tennessee Implementation Plan

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving revisions to the Tennessee State Implementation Plan (SIP) submitted by the State of Tennessee through the Tennessee Department of Environment and Conservation (TDEC) on July 10, 1996, February 14, 1997, and February 21, 1997. These submittals revise the regulations for Exemptions in the Construction and Operating Permits chapter, General Provisions and Applicability in the Nitrogen Oxides chapter, and add a chapter on Conflict of Interest.

DATES:

This direct final rule is effective October 28, 2002, without further notice, unless EPA receives adverse comment by September 30, 2002. If adverse comment is received, EPA 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:

All comments should be addressed to Steven M. Scofield at the EPA, Region 4 Air Planning Branch, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960.

Copies of the State submittals are available at the following addresses for inspection during normal business hours:

Environmental Protection Agency, Region 4 Air Planning Branch, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Steven M. Scofield, 404/562-9034.

Division of Air Pollution Control, Tennessee Department of Environment and Conservation, L&C Annex, 9th Floor, 401 Church Street, Nashville, Tennessee 37243-1531. 615/532-0554.

FOR FURTHER INFORMATION CONTACT:

Steven M. Scofield; Regulatory Development Section; Air Planning Branch; Air, Pesticides and Toxics Management Division; U.S. Environmental Protection Agency Region 4; 61 Forsyth Street, SW; Atlanta, Georgia 30303-8960. Mr. Scofield can also be reached by phone at [phone] or by electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Analysis of State's Submittal

On July 10, 1996, the State of Tennessee, through the TDEC, submitted revisions to rule 1200-3-9-.04 Exemptions, in the Construction and Operating Permits chapter of the Tennessee SIP. The revisions are summarized as follows:

1200-3-9-.04(1) The existing paragraph is being replaced with a new paragraph which states the exemptions listed in paragraph 1200-3-9-.04(4) do not apply if an air contaminant source is subject to a standard or requirement contained in chapters 1200-3-18 Volatile Organic Compounds, 1200-3-19, 1200-3-22 Lead Emission Standards, and 1200-3-27 Nitrogen Oxides.

1200-3-9-.04(3) This paragraph is being added to specify that any person may request that a federally enforceable permit be issued for any of the air contaminant sources that are exempted in paragraph 1200-3-9-.04(4).

1200-3-9-.04(4) The original paragraph 1200-3-9-.04(1) is included in this new paragraph with the addition of language in the beginning to clarify that the list of exempted air contaminant sources contained in this paragraph shall not be used as “insignificant activities” or “insignificant emission units” when applying for a major source operating permit under paragraph 1200-3-9-.02(11). In addition, exemptions are being added for the following air contaminant sources:

1. Automobile body shops (except sources in ozone nonattainment areas which emit more than 15 pounds per day of volatile organic compounds);

2. Any process emission source emitting less than 0.1 pounds per hour of a pollutant excluding hazardous air contaminants or pollutants;

3. Any air contaminant source with the potential to emit radionuclides which will result in a dose to the most exposed member of the public of less than 0.1 millirem per year;

4. Any modification (as defined in Rule 1200-3-2-.01) to an existing process emission source, incinerator, or fuel-burning installation to add sources of equipment leaks as long as the estimated increase in annual emissions attributable to the modification does not exceed 5 tons per year.

1200-3-9-.04(5) This paragraph is being renumbered to 1200-3-9-.04(6). New paragraph 1200-3-9-.04(5) addresses insignificant activities for major source operating permit and is not part of the SIP.

On February 14, 1997, the State of Tennessee, through the TDEC, submitted a revision to rule 1200-3-27.02 General Provisions and Applicability, revising paragraph (6) by deleting Shelby County from the list of counties in which the owner or operator of any facility which has actual emissions from stationary sources of 25 tons or more nitrogen oxides (NO_X) during a calendar year is required to report to the Technical Secretary information and data concerning NO_X and volatile organic compounds (VOCs) emissions, as required by Clean Air Act (CAA) section 182(a)(3)(B). Shelby County was redesignated to attainment for ozone on February 16, 1995. However, the Consolidated Emissions Reporting Rule (CERR) requires all states to report statewide emissions for all criteria pollutants every three years beginning with 2002.

On February 21, 1997, the State of Tennessee, through the TDEC, submitted the addition of Chapter 1200-3-17 Conflict of Interest. The chapter was developed as a result of the Attorney General Opinion required as a part of Tennessee's title V submittal. In that opinion, the Attorney General found that the laws and regulations of the State did not fully address conflict of interest as required under sections 7428 and 7429(e) of the CAA. Rule 1200-3-17-.02 defines a “conflict of interest” occurring when a Board member or the Technical Secretary takes an action in the performance of their duties that singularly benefits a source when the Board member or the Technical Secretary has a significant portion of their personal income derived from the operations of said source. The rule requires that prior to the issuance of a permit, variance or an enforcement order that requires an action on their part, the Technical Secretary or a Board member shall issue a statement that declares any conflict of interest that they may have in the matter.

II. Final Action

EPA is approving the aforementioned revisions to the Tennessee SIP because they are consistent with the CAA and EPA policy. The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal 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 adverse comments be filed. This rule will be effective October 28, 2002, without further notice unless the Agency receives adverse comments by September 30, 2002.

If the EPA receives such comments, then EPA will publish a document 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. 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 October 28, 2002, and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

III. 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. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). 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 pre-existing 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).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does 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). This action 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 Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (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 Clean Air Act. 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 Clean Air Act. 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. 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.).

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. 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. 804(2).

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 October 28, 2002. 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
• Carbon monoxide
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: July 30, 2002.

J.I. Palmer, Jr.,

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.

2. Section 52.2220 is amended in the table in paragraph (c):

a. Under Chapter 1200-3-9 by revising the entry for “Section 1200-3-9-.04.”

b. Adding “Chapter 1200-3-17” and adding entries for “Section 1200-3-17-.01”, “Section 1200-3-17-.02” and “Section 1200-3-17-.03.”

c. Under Chapter 1200-3-27 by revising the entry for “Section 1200-3-27-.02.”

The revisions read as follows:

§ 52.2220

Identification of plan.

* * * * *

(c) * * *

EPA Approved Tennessee Regulations

State citation	Title/subject	Adoption date	EPA approval date	Federal Register notice
*         *         *         *         *         *         *
Chapter 1200-3-9	CONSTRUCTION AND OPERATING PERMITS
*         *         *         *         *         *         *
Section 1200-3-9-.04	Exemptions	08/26/95 08/28/95	10/28/02	[Insert citation of publication]
*         *         *         *         *         *         *
Chapter 1200-3-17	CONFLICT OF INTEREST
Section 1200-3-17-.01	Purpose and Intent	09/18/96	10/28/02	[Insert citation of publication]
Section 1200-3-17-.02	Conflict of Interest on the Part of the Board and Technical Secretary	09/18/96	10/28/02	[Insert citation of publication]
Section 1200-3-17-.03	Conflict of Interest in the Permitting of Municipal Solid Waste Incineration Units	09/18/96	10/28/02	[Insert citation of publication]
*         *         *         *         *         *         *
Chapter 1200-3-27	NITROGEN OXIDES
*         *         *         *         *         *         *
Section 1200-3-27-.02	General Provisions and Applicability	11/23/96	10/28/02	[Insert citation of publication]
*         *         *         *         *         *         *

* * * * *