The FAA has determined that notice and opportunity for prior public comment for these special conditions is impracticable because these procedures would significantly delay certification and delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. We therefore find that good cause exists for making these special conditions effective upon issuance. However, we invite interested persons to take part in this rulemaking by submitting written comments. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel about these special conditions. You may inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

If you want the FAA to acknowledge receipt of your comments on these special conditions, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On August 9, 2006, ABX Air, Inc., 145 Hunter Drive, Wilmington, OH 45177, applied for a supplemental type certificate (STC) to modify Boeing Model 757-200 series airplanes. The Boeing Model 757-200 series airplanes are large transport category airplanes powered by either 2 Pratt & Whitney or 2 Rolls-Royce engines. They carry a maximum of 239 passengers. The modification consists of installing the Innovative Solutions and Support (IS&S) Integrated Flat Panel Display System (IFPDS). The avionics/electronics and electrical systems installed in this airplane have a potential to be vulnerable to high-intensity radiated fields (HIRF) external to the airplane.

Under provisions of 14 CFR 21.101, ABX Air, Inc. must show that the Boeing Model 757-200 series airplanes, as changed, continue to meet applicable provisions of the regulations incorporated by reference in Type Certificate No. A2NM, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The certification basis for Boeing Model 757-200 series airplanes includes applicable sections of 14 CFR part 25 as amended by Amendments 25-1 through 25-45 effective December 1, 1978. In addition, the certification basis includes certain special conditions, exemptions, equivalent levels of safety, or later amended sections of the applicable part 25 that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (part 25, as amended) do not contain adequate or appropriate safety standards for the Boeing Model 757-200 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 757-200 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in § 11.19, under § 11.38, and they become part of the type certification basis under the provisions of § 21.101.

As noted earlier, the Boeing Model 757-200 series airplanes modified by ABX Air, Inc. will incorporate an integrated flat panel display system manufactured by IS&S that will perform critical functions. This system may be vulnerable to high-intensity radiated fields external to the airplane. Current airworthiness standards of part 25 do not contain adequate or appropriate safety standards for protecting this equipment from adverse effects of HIRF. So this system is considered to be a novel or unusual design feature.

As previously stated, there is no specific regulation that addresses protection for electrical and electronic systems from HIRF. Increased power levels from radio frequency transmitters and the growing use of sensitive avionics/electronics and electrical systems to command and control airplanes have made it necessary to provide adequate protection.

To ensure that a level of safety is achieved equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Boeing Model 757-200 series airplanes modified by ABX Air, Inc. These special conditions require that new avionics/electronics and electrical systems that perform critical functions be designed and installed to preclude component damage and interruption of function because of HIRF.

High-power radio frequency transmitters for radio, radar, television, and satellite communications can adversely affect operation of airplane electric and electronic systems. Therefore, the immunity of critical avionics/electronics and electrical systems to HIRF must be established.

Based on surveys and an analysis of existing HIRF emitters, an adequate level of protection exists if airplane system immunity is demonstrated when exposed to the HIRF environments in either paragraph 1 or 2 below:

1. A minimum environment of 100 volts rms (root-mean-square) per meter electric field strength from 10 KHz to 18 GHz.

a. System elements and their associated wiring harnesses must be exposed to the environment without benefit of airframe shielding.

b. Demonstration of this level of protection is established through system tests and analysis.

2. An environment external to the airframe of the field strengths shown in the table below for the frequency ranges indicated. Immunity to both peak and average field strength components from the table must be demonstrated.

The environment levels identified above are the result of an FAA review of existing studies on the subject of HIRF and of the work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.

These special conditions are applicable to Boeing Model 757-200 series airplanes modified by ABX Air, Inc. Should ABX Air, Inc. apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A2NM to incorporate the same or similar novel or unusual design feature, these special conditions would apply to that model as well under provisions of § 21.101.

This action affects only certain novel or unusual design features on Boeing Model 757-200 series airplanes modified by ABX Air, Inc. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The authority citation for these special conditions is as follows:

Therefore, under the authority delegated to me by the Administrator, the following special conditions are issued as part of the supplemental type certification basis for the Boeing Model 757-200 series airplanes modified by ABX Air, Inc.

1. Protection from Unwanted Effects of High-Intensity Radiated Fields (HIRF) . Each electrical and electronic system that performs critical functions must be designed and installed to ensure that the operation and operational capability of these systems to perform critical functions are not adversely affected when the airplane is exposed to high-intensity radiated fields.

2. For the purpose of these special conditions, the following definition applies:

Critical Functions: Functions whose failure would contribute to or cause a failure condition that would prevent continued safe flight and landing of the airplane.

Streamlined Issuance of AD

The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and Federal Register requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products.

This AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The AD contains text copied from the MCAI and for this reason might not follow our plain language principles.

The European Aviation Safety Agency (EASA), which is the aviation authority for European Union, has issued EASA Airworthiness Directive 2006-0142, dated May 29, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

The condition described in the MCAI can lead to a forced autorotation landing or an accident. You may obtain further information by examining the MCAI in the AD docket.

Turbomeca has issued Mandatory Service Bulletin A319 79 2832, Update 1, dated April 3, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all the information provided by the State of Design Authority and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are described in a separate paragraph of the AD. These requirements take precedence over the actions copied from the MCAI.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because the compliance time required to correct the unsafe condition, as low as 50 hours in service, is shorter than the time required to collect and respond to comments. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2006-26138; Directorate Identifier 2006-NE-38-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect 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.

For the reasons discussed above, I certify this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

The final regulations (TD 9263) that are subject to this correction are under section 199 of the Internal Revenue Code.

On June 1, 2006, final regulations (TD 9263) were published in the Federal Register at 71 FR 31268. These regulations contain errors that may prove to be misleading and are in need of clarification.

This direct final rulemaking applies to shipyard employment as defined at 29 CFR 1915.4. It updates NFPA standards incorporated by reference in the shipyard fire protection standard (29 CFR Part 1915, Subpart P) issued by OSHA on September 15, 2004 by replacing the older versions of NFPA consensus standards with the most current versions (see 69 FR 55668).

On October 17, 2006, OSHA published a direct final rule in the Federal Register with a statement that the rule would go into effect unless a significant adverse comment was received within a specified period of time (see 71 FR 60843). An associated proposed rule was also published at the same time (see 71 FR 60932). In both the direct final rule and proposed rule notices, OSHA requested comments on all issues related to this action. OSHA received only one comment on the direct final rule, which supported the rulemaking. Since no adverse comments were received, the direct final rule will become effective on January 16, 2007.

As discussed in the October 17th direct final rule and the associated proposed rule, OSHA will not proceed with the proposed rule.

This document was prepared under the direction of Edwin G. Foulke, Jr., Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. It is issued pursuant to sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), Secretary of Labor's Order 5-2002 (67 FR 65008); and 29 CFR part 1911.

On December 27, 2001, VA published an interim final rule in the Federal Register for notice and comment (66 FR 66763) amending VA adjudication regulations to reflect changes made by two public laws. First, Public Law 106-377, The Departments of Veterans Affairs and Housing and Urban Development and Independent Agencies Appropriations Act, 2001, changed the rate of compensation payments to certain veterans of the Philippine Commonwealth Army and recognized guerrilla forces who reside in the United States. Second, Public Law 106-419, the Veterans Benefits and Health Care Improvement Act of 2000, changed the amount of monetary burial benefits that VA will pay to survivors of certain veterans of the Philippine Commonwealth Army and recognized guerrilla forces who lawfully reside in the United States at death. On February 16, 2006, VA published in the Federal Register (71 FR 8215) a final rule adopting the interim final rule with changes and responding to public comments. Included with this final rule was an interim final rule that implemented Public Law 108-183 and solicited comments on these regulatory amendments only. Interested persons were invited to submit written comments on or before March 20, 2006. We did not receive any comments.

We are making one change to 38 CFR 3.42(c)(4)(ii) as a technical correction. We determined that there was an error in the text of the interim final rule, as published on February 16, 2006. Section 3.42(c)(4)(ii) incorrectly stated, “A Post Office box mailing address in the veteran's name does not constitute evidence showing that the veteran was lawfully residing in the United States on the date of death.” The proof of residence requirements in § 3.42(c)(4) apply to both compensation benefits paid to veterans and dependency and indemnity compensation benefits paid to veterans' survivors, but the interim final rule in § 3.42(c)(4)(ii) incorrectly referred only to veterans. Moreover, the reference to “date of death” is incorrect; that criterion would only apply in a claim for full-dollar burial benefits under § 3.43. We are therefore correcting § 3.42(c)(4)(ii) to state, “A Post Office box mailing address in the veteran's name or the name of the veteran's survivor does not constitute evidence showing that the veteran or veteran's survivor is lawfully residing in the United States.”

Based on the rationale stated in the interim final rule published on February 16, 2006, and in this document, the interim final rule is adopted as a final rule with a technical correction.

All collections of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521) referenced in this final rule have existing OMB approval as a form under control number 2900-0655. No changes are made in this final rule to those collections of information.

The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The reason for this certification is that these amendments would not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, under 5 U.S.C. 605(b), these amendments are exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Order classifies a rule as a significant regulatory action requiring review by the Office of Management and Budget if it meets any one of a number of specified conditions, including: having an annual effect on the economy of $100 million or more, creating a serious inconsistency or interfering with an action of another agency, materially altering the budgetary impact of entitlements or the rights of entitlement recipients, or raising novel legal or policy issues. VA has examined the economic, legal, and policy implications of this final rule and has concluded that it is not a significant regulatory action under Executive Order 12866 because it merely provides a technical correction to the interim final rule.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule will have no such effect on State, local, or tribal governments, or the private sector.

The Catalog of Federal Domestic Assistance program numbers and titles are 64.100, Automobiles and Adaptive Equipment for Certain Disabled Veterans and Members of the Armed Forces; 64.101, Burial Expenses Allowance for Veterans; 64.104, Pension for Non-Service-Connected Deaths for Veterans; 64.105, Pension to Veterans Surviving Spouses, and Children; 64.106, Specially Adapted Housing for Disabled Veterans; 64.109, Veterans Compensation for Service-Connected Disability; and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death.

Throughout this document, “we,” “us” and “our” refer to EPA.

Table 1 lists the rules we are approving with the dates that they were adopted by the local air agency and submitted by the California Air Resources Board.

On October 6, 2000 these rule submittals were found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

We approved a version of Rule 201 into the SIP on January 27, 1981 (46 FR 8472). We approved a version of Rules 203 and 205 into the SIP on February 3, 1989 (54 FR 5448). We approved a version of Rule 208 into the SIP on November 10, 1980 (45 FR 74480). There is no version of Rule 206 in the SIP.

These rules describe administrative provisions and definitions that support emission controls found in other local agency requirements. In combination with the other requirements, these rules must be enforceable (see section 110(a) of the CAA) and must not relax existing requirements (see sections 110(l) and 193).

The purposes of the new rule are as follows:

• Rule 206 provides extensive guidelines for the Air Pollution Control Officer to process an application for a permit; specifies required standards for actions on applications; and defines ministerial permits and discretionary permits.

The purposes of rule revisions relative to the SIP rule are as follows:

• Rule 201 adds the requirement for an Authority to Construct (ATC) in addition to a Permit to Operate (PTO); clarifies that the types of permits regulated by Rules 420, 421, and 701 are not part of Rule 201; and specifies requirements for posting of a permit.

• Rule 203 is reformatted.

• Rule 205 adds a reference to the (California) Health and Safety Code.

• Rule 208 moves to Rule 207 the standards for a Permit to Operate, including offset requirements; adds a requirement for the APCO to inspect the facility to determine compliance; adds a provision for existing facilities without an ATC to obtain a PTO; and adds a provision to permit certain movable equipment where no construction is required.

The TSD has more information about these rules.

These rules describe administrative requirements and definitions that support emission controls found in other local agency requirements. In combination with the other requirements, these rules must be enforceable (see section 110(a) of the CAA) and must not relax existing requirements (see sections 110(l) and 193).

Guidance and policy documents that we used to help evaluate enforceability requirements consistently include the following:

• Review of New Sources and Modifications , U.S. EPA, 40 CFR part 51, subpart I, sections 161-165.

• Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations , EPA (May 25, 1988). (The Blue Book)

• Guidance Document for Correcting Common VOC & Other Rule Deficiencies , EPA Region 9, (August 21, 2001). (The Little Bluebook)

We believe these rules are consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. The TSD has more information on our evaluation.

The TSD describes additional revisions to Rules 201 and 205 that do not affect EPA's current action but are recommended for the next time the local agency modifies the rule.

As authorized in section 110(k)(3) of the CAA, EPA is fully approving the submitted ICAPCD Rules 201, 203, 205, 206, and 208 because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by February 2, 2007, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on March 5, 2007. This will incorporate these rules into the federally enforceable SIP.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this direct final rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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 March 5, 2007. 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).)

Throughout this document, “we,” “us” and “our” refer to EPA.

On August 28, 2006 (71 FR 50875), EPA proposed approval of certain revisions to the Nevada SIP and disapproval of certain other revisions. These revisions involve rules and statutory provisions previously approved into the Nevada SIP but for which the State of Nevada is requesting rescission. EPA also proposed approval of certain updated statutory provisions submitted by the State of Nevada as replacements for outdated statutory provisions in the applicable plan. Our August 28, 2006 proposed rule represents one of a series of rulemakings we are conducting on a large SIP revision submitted by the State of Nevada on January 12, 2006 in which the State requests approval of numerous new or amended rules and statutory provisions and requests rescission of numerous other rules and statutory provisions in the existing SIP. Our August 28, 2006 proposed rule sets forth our evaluation and proposed action on the vast majority of the rescission requests included in the State's January 12, 2006 SIP revision submittal.

In our August 28, 2006 proposed rule, we made final approval of those requests for rescission that we proposed to approve contingent upon the receipt of certain public notice and hearing documentation from the State of Nevada. The appropriate documentation has been submitted for the provisions listed below in table 1, and we are taking final action on them today. 1 A separate final rule will be published for the remainder of the provisions for which rescission was requested (and proposed for approval) after the public notice and hearing documentation has been submitted. A third final rule will be published for the rescission of the Federal implementation plan promulgated by EPA at 40 CFR 52.1475 (c), (d) and (e), which was also proposed for rescission in our August 28, 2006 proposed rule.

The majority of the provisions in table 1 represents defined terms that, although approved by EPA and therefore made part of the applicable SIP, are not relied upon by any rule or statutory provision in the existing applicable SIP or in any rule or statutory provision included in the SIP revision submitted on January 12, 2006 and thus are unnecessary and appropriate for rescission. For the other SIP provisions listed in table 1, we proposed approval of the State's rescission requests because we found them to be unnecessary because they are not needed generally in a SIP under CAA section 110(a)(2) or under 40 CFR part 51 or because there are other federally enforceable provisions that would provide equivalent or greater control. Our proposed rule and related Technical Support Document (TSD) contain more information on these SIP provisions and our evaluation of the related rescission requests.

As noted above, in our August 28, 2006 proposed rule, we proposed to disapprove the State's request to rescind certain rules and statutory provisions from the existing SIP. These rules and statutory provisions are listed in table 2 below. We believe that retention of these provisions is appropriate to satisfy certain specific requirements for SIPs under CAA section 110(a)(2) or that retention is appropriate because the State has not provided sufficient documentation to show that rescission would not interfere with continued attainment of the national ambient air quality standards (NAAQS) as required under CAA section 110(l).

Also as noted above, in our August 28, 2006 proposed rule, we proposed to approve certain submitted statutory provisions to supersede the corresponding outdated provisions noted with an asterisk in table 2 above. These submitted statutory provisions are listed in table 3, below. In its January 12, 2006 SIP revision submittal, NDEP requests EPA to approve new statutory provisions to replace any outdated State statutory provisions for which EPA determines that the rescission request should not be approved. Thus, consistent with the State's request, we are approving 14 specific statutory provisions, submitted by NDEP in Appendix III-E of the January 12, 2006 SIP revision submittal, to replace the corresponding statutory provisions in the applicable SIP (see table 3, below). In general, we find that the current statutory provisions listed in table 3 essentially mirror the corresponding outdated provisions in the applicable SIP and thus would not relax any existing requirement. 2

EPA's proposed action provided a 30-day public comment period. During this period, we received comments from Jennifer L. Carr and Michael Elges, Division of Environmental Protection, State of Nevada Department of Conservation & Natural Resources, by letter dated September 25, 2006. We summarize the comments and provide our responses in the paragraphs that follow. Note that some of the comments in the September 25, 2006 letter are directed at a different EPA proposed rule also related to the State's January 12, 2006 SIP submittal and published the same week as the August 28, 2006 proposed rule. See 71 FR 51793 (August 31, 2006). Comments on the August 31, 2006 proposed rule are addressed in a separate final action published on December 11, 2006 at 71 FR 71486.

Comment #1: The Nevada Division of Environmental Protection (NDEP) recognizes that EPA has made final approval of the rescission requests contingent upon receipt of public notice and hearing documentation from the State of Nevada and believes that it has now provided the required documentation for all of the applicable rescission requests except for 12. NDEP also comments that EPA should state that the public notice and hearing documentation submitted on February 16, 2005 was used to support the proposed rulemaking.

Response #1: With the exception of the 12 provisions listed in table 4 below for which documentation is pending, we find that the State has now provided sufficient documentation for the applicable rescission requests and thereby met the contingency placed on their proposed approval in our August 28, 2006 proposed rule.

We also agree that an explanation of the extent of reliance of our proposed rule on the February 16, 2005 SIP submittal is warranted. On February 16, 2005, NDEP submitted a large revision to the applicable Nevada SIP. The February 16, 2005 SIP submittal includes new and amended rules and statutory provisions as well as requests for rescission of certain rules and statutory provisions in the existing SIP. The February 16, 2005 SIP submittal also contains documentation of public participation (i.e., notice and public hearing) and adoption for all of the submitted rules through the hearing on November 30, 2004 held by the State Environmental Commission. The February 16, 2005 SIP submittal also includes documentation of public participation for 16 of the requested rule rescissions.

On January 12, 2006, NDEP submitted an amended version of the February 16, 2005 SIP submittal. The January 12, 2006 SIP submittal contains updated regulatory materials including new and amended rules adopted by the State Environmental Commission on October 4, 2005 but otherwise contains the same materials as the earlier submittal with the exception of the documentation of public participation. The January 12, 2006 SIP submittal only contains documentation of public participation for rule amendments adopted by the State Environmental Commission on October 4, 2005 but did not re-submit the public participation documentation included in the earlier submittal. Therefore, the January 12, 2006 SIP submittal supersedes the earlier SIP revision submittal dated February 16, 2005 for all purposes except for the documentation of public participation for adoption dates from November 30, 2004 and earlier. The January 12, 2006 SIP submittal did not include public participation documentation for any of the requested rescissions.

Upon request by EPA for documentation of public participation for the requested rescissions, NDEP indicated where such documentation could be found in the materials submitted as part of the February 16, 2005 SIP submittal and also provided documentation for public hearings held by the State Environmental Commission on August 28-29, 1985 during which the vast majority of the rules for which the State has requested rescission were repealed. NDEP also provided an explanation for all of the other rules and statutory provisions proposed for rescission that were not already documented in the February 16, 2005 SIP submittal or the materials for the August 28-29, 1985 public hearings (except for the 12 listed in table 4). Taken collectively, the documentation provided by NDEP is sufficient to meet the related public participation requirements under CAA section 110(l) and for us to remove the contingency in our proposed rule for all of the provisions for which rescission was requested and proposed for approval (except, as noted, for the 12 listed in table 4).

Comment #2: NDEP disagrees with the statements made in EPA's TSD (for the August 28, 2006 proposed rule) regarding the rescission of Nevada Air Quality Regulation (NAQR) article 7.2.9. NDEP states that a new lime kiln located on the previous site of Sierra Chemical Company's lime kiln in Lincoln County would be subject to a new emission limit rather than the limit in NAQR article 7.2.9.

Response #2: We agree. Although we proposed approval of the State's request for rescission of NAQR article 7.2.9, our discussion and evaluation of the rescission request as set forth in the TSD presumes incorrectly that the emission limit in NAQR article 7.2.9 would apply to a new kiln at this location. The stated presumption is incorrect because a new kiln at this location would be treated as a new emission unit under NDEP's new source review rules. As such, the unit-specific limit in NAQR article 7.2.9 would not apply and has become obsolete (see letter from William Frey, Senior Deputy Attorney General, State of Nevada, dated July 11, 2006). In this notice, we are taking final action to approve the State's request for rescission of NAQR article 7.2.9.

Comment #3: NDEP acknowledges that EPA is deferring action on NAC 445.694 and intends to respond to EPA's suggestion of providing further explanation as to why the provision can be rescinded.

Response #3: We appreciate NDEP's willingness to submit additional justification for the rescission of NAC 445.694 (“Emission discharge information”) and plan to review it when it is submitted.

No comments were submitted that change our assessment of our proposed action. Therefore, as authorized in section 110(k)(3) of the Clean Air Act, and in light of documentation for public participation provided by the State of Nevada, EPA is finalizing the approval of the State's request for rescission of the rules and statutory provisions listed in table 1, above, and the disapproval of the State's request for rescission of the rules and statutory provisions listed in table 2, above. EPA is also approving the submitted statutory provisions listed in table 3, above, into the Nevada SIP as replacements for the corresponding outdated provisions listed in table 2.

EPA is not taking final action on 12 of the provisions for which the State requests rescission and for which EPA proposed approval on August 28, 2006 (as listed in table 4, above) but will do so upon receipt of public participation documentation from the State. Lastly, we will be taking final action on our proposed rescission of the Federal implementation plan at 40 CFR 52.1475 (c), (d), and (e), which is related to the former Kennecott Copper Company smelter located in White Pine County, in a separate notice.

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 or disapproves certain State requests for rescission and approves certain replacement provisions 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 rescinds, retains or 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 or disapproves certain State requests for rescission and approves certain replacement provisions 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 March 5, 2007. 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).)

On June 21, 2006, the State of Maryland submitted a formal revision to its State Implementation Plan (SIP). The SIP revision consists of regulatory amendment (Revision 06-06) which incorporates by reference EPA's PM-10 test methods. The Maryland regulation cites test methods used to show compliance with emission standards in COMAR 26.11.01.04. The EPA-approved test methods found in 40 CFR Appendix A were previously incorporated by reference in COMAR 26.11.01.04 and approved as part of the Maryland SIP. The method for particulate matter found in Appendix A, Test Method 5, which captures particulate matter in the front half of the test train and finer particulates and condensables collected in the second half. Method 5 typically analyzes the front half of the test train. Compliance with Prevention of Significant Deterioration permits for major sources of PM-10 requires the inclusion of condensables. The revised PM-10 test methods included in this SIP revision require the analysis of condensables for PM-10 emission limits.

The EPA-approved test methods for particulate matter which are the subject of this rulemaking are found in 40 CFR part 51, Appendix M. In addition, the revision references an EPA conditionally approved test method (CTM). The CTMs have been evaluated by the Agency and may be applicable to one or more categories of stationary sources. The EPA confidence in a method included in this category is based upon review of various technical information including, but not limited to, field and laboratory validation studies; EPA understanding of the most significant quality assurance (QA) and quality control (QC) issues; and EPA confirmation that the method addresses these QA/QC issues sufficiently to identify when the method may not be acquiring representative data. The method's QA/QC procedures are required as a condition of applicability.

The State of Maryland has submitted revisions to the list of test methods for PM-10 for approval into the Maryland SIP. The revisions to COMAR 26.11.04.01 incorporate by reference the following test methods for PM-10 stack testing: Test Methods 201A and 202 (40 CFR part 51, Appendix M); Test Method 5 (40 CFR part 60, Appendix A) with Test method 202; Test Method 5 using front half and back half procedure; Conditional Test Method 39 may be substituted for Test Method 202. The revisions also include a provision for approval of alternative test methods for PM-10 if approved by the State and EPA.

EPA is approving revisions to COMAR 26.11.01.04 to incorporate by reference EPA's PM-10 test methods. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on March 5, 2007 without further notice unless EPA receives adverse comment by February 2, 2007. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

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 requirement, 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 . This rule 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 March 5, 2007. 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 to approve incorporation by reference of PM-10 stack test methods into the Maryland SIP may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On March 16, 2000, July 23, 2002, December 10, 2004, and January 31, 2006, the State of Tennessee, through TDEC, submitted revisions to the Tennessee SIP. The revisions pertain to the Knox County portion of the Tennessee SIP and include changes to KCAQR Section 16.0—“Open Burning,” Section 25.0—“Permits,” and Section 46.0—“Regulation of Volatile Organic Compounds.” These rule changes became effective at the county level on March 8, 2000, June 25, 2002, December 8, 2004, and December 14, 2005, respectively. These revisions were initially submitted by Knox County Air Quality Management Division for review to TDEC, which found the changes to be at least as stringent as the corresponding State requirements. TDEC then prepared the forma SIP revision submittals for EPA review. The changes included as part of the instant revisions are part of Knox County's strategy to attain and maintain the NAAQS and are approvable into the Tennessee SIP pursuant to section 110 of the CAA. The changes included in each of the four SIP submittals will be discussed below, organized by subject matter. In some cases, one rule, such as the open burning rule, may be affected by more than one of the SIP submittals. As a result, the changes discussed below are organized by rule and not SIP submittal.

All four of the SIP submittals included changes to KCAQR Section 16.0, “Open Burning.” Each change is discussed below beginning with the March 16, 2000, submittal.

The March 16, 2000, SIP submittal included changes to KCAQR Section 16.4.B, which allows open fires to be set for the training and instruction of public or private fire-fighting personnel. Section 16.4.B was changed to include conditions under which the use of open burning for fire-fighting training must be conducted. These conditions include requirements that the substances to be burned must be free of asbestos and asphalt shingles; the burning is for training purposes only; and the burning will not cause a traffic hazard. As a point of clarification, Section 16.4.B, which was numbered 16.3.B at the time of the March 16, 2000, submittal, subsequently became Section 16.4.B as a result of a renumbering of Section 16.0 which is discussed below as part of one of the later SIP submittals.

The July 23, 2002, SIP submittal included changes to KCAQR Section 16.3—“Definitions,” and Section 16.0—“Open Burning,” including a renumbering/reorganization of Section 16.0. The changes to the definitions for Open Burning includes definitions for the terms “air curtain destructor,” “air pollution emergency episode,” “natural disaster,” “open burning,” “person,” “registered sanitary landfill,” and “wood waste.” As a result of the renumbering/reorganization of Section 16.0, that provision now contains the following parts: Section 16.1—“Open Burning Prohibited,” Section 16.2—“Definitions,” Section 16.3—“Exceptions to Prohibition—Without Permit,” Section 16.4—“Exceptions to Prohibition—With Permit,” Section 16.5—“Open Burning Conditions—With Permit,” and Section 16.6, which includes general prohibitions. Section 16.6, which lists materials not exempted by the Open Burning Rule, is one of the new sections. Changes were also made to Section 16.4.C (old Section 16.3.C). They consisted of adding specific requirements under which open burning is allowed when an air curtain destructor is used. The requirements include necessary certifications, timing, substances to be burned, and other restrictions.

The December 10, 2004, SIP submittal included changes to KCAQR Section 16.5.B prohibiting open burning on “air pollution action days.” Specifically, “air pollution action days” are defined as days on which the appropriate agency within Knox County has determined that air pollution levels may potentially exceed a NAAQS. The December 10th submittal also included a new provision, Section 16.7, which provided that the use of air curtain destructors would be prohibited in the County after January 1, 2005.

The January 31, 2006, SIP submittal included changes to KCAQR Section 16.4.C and 16.4.D. On November 1, 2006, Knox County notified EPA Region 4 of its decision to withdraw Section 16.4.D. from the January 31, 2006, SIP revision. As a result, EPA reviewed the January 31, 2006, submittal as though it did not contain any changes regarding Section 16.4.D. The changes to Section 16.4.C involved the deletion of substance contained in that section, which regarded the use of air curtain destructors, and reserving it for future use. This revision is consistent with the prohibition on air curtain destructors included as part of the December 10, 2004, SIP submittal (this is discussed briefly above).

The March 16, 2000, SIP submittal also included minor changes to KCAQR Section 13.0—“Definitions” and Section 25.0—“Permits.” The proposed changes to Section 13.0 are not being addressed today and are not being affected by today's direct final action. They will be addressed in a subsequent action by EPA which will be published in the Federal Register . With regard to KCAQR Section 25.0—“Permits,” the changes include the addition of a new section, Section 25.3.J (pertaining to operating permits), which stipulates that any violation of an operating permit is considered a violation of the permit at issue, as well as, a violation of the Knox County air regulations. This change was made to ensure consistency between the Knox County air permits program and the corresponding State of Tennessee program.

The December 10, 2004, SIP submittal discussed above with regard to the Open Burning Rule changes, also contained a proposal to adopt and incorporate by reference the State of Tennessee's rules on Stage I Vapor Recovery. These rules appear in the Tennessee Administrative Code Chapter 1200-3-18-.24.B—“Gasoline Dispensing Facilities, Stage I and Stage II Vapor Recovery.” This provision now exists in Knox County air regulations under Section 46.0—“Regulation of Organic Volatile Compounds,” as KCAQR Section 46.22—“Gasoline Dispensing Facilities, Stage I Vapor Recovery.” Knox County's changes were made to ensure consistency with the State of Tennessee's Stage I and Stage II vapor recovery programs, which are required in newly designated nonattainment areas of the State.

All of the KCAQR changes described above, which span over four SIP submittals, include changes to KCAQR that are part of Knox County's strategy to attain and maintain air quality that is consistent with the NAAQS. According to the TDEC, the changes are at least as stringent as the Tennessee SIP, and the changes also appear to be at least as stringent as the current Knox County portion of the SIP. As a result, the above described changes are approvable pursuant to section 110 of the Clean Air Act.

EPA is approving revisions to the Knox County portion of the Tennessee SIP, submitted by the State of Tennessee on March 16, 2000, July 23, 2002, December 10, 2004, and January 31, 2006, pursuant to section 110 of the Clean Air Act. The revisions include changes to KCAQR Section 16.0—“Open Burning,” Section 25.0—“Permits,” and Section 46.0—“Regulation of Volatile Organic Compounds.” Although the December 10, 2004, submittal also included changes to Section 13.0—“Definitions,” EPA is not taking action on that revision today. In addition, EPA is taking no action on changes included in the January 31, 2006, SIP revision regarding Section 16.4.D. of the open burning rule, because they were subsequently withdrawn by Knox County.

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 revisions should adverse comments be filed. This rule will be effective March 5, 2007 without further notice unless the Agency receives adverse comments by February 2, 2007.

If 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. 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 March 5, 2007 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.

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 state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. As a result, this action does not alter the relationship or the distribution of power and responsibilities established in the CAA. 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 CAA. 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 CAA. 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 5, 2007. 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).)

On December 21, 1999, March 16, 2000, and January 12, 2001, the State of Tennessee, through TDEC, submitted proposed revisions to the Tennessee SIP. The revisions pertain to the Knox County portion of the Tennessee SIP and include changes to KCAQR Section 13.0—“Definitions” and Section 22.0—“Regulation of Fugitive Dust and Materials.” These revisions were initially submitted for review to TDEC, which found them to be at least as stringent as the State's requirements. TDEC then prepared the SIP submittal for EPA review. The rule changes described in each submittal became State effective on December 7, 1999, March 8, 2000, and January 10, 2001, respectively. The rule changes are part of Knox County's strategy to attain and maintain the NAAQS, and are approvable into the Tennessee SIP pursuant to section 110 of the CAA.

The December 21, 1999, and March 16, 2000, SIP submittals included changes to KCAQR Section 13.0—“Definitions.” The December 21, 1999, submittal included a change to KCAQR Section 13.1 to clarify existing definitions and add a more complete list of definitions. EPA reviewed these general definitions with regard to consistency with the current Tennessee SIP and federal law, generally. These definitions are substantially the same as those in the current Tennessee SIP, and as a result, they are at least as stringent as the Tennessee definitions already included in the SIP. Furthermore, the definitions are at least as stringent as general federal definitions. Section 13.0 is a general definitions section only; different programs described in the Knox County rules, such as the prevention of significant deterioration program, may include more specific definitions applicable to that program. The changes being approved today are summarized below:

The March 16, 2000, SIP submittal included additional changes to KCAQR Section 13.0. Specifically, Knox County revised the definition of “PM 10 Emissions” to exclude uncombined water. This change was made in response to EPA comments described in a letter to the Knox County Department of Air Quality Management on October 13, 1999. In this letter, which is included in the Docket for this action, EPA commented that for Knox County's definition to be consistent with the definition contained in 40 CFR 51.100, the PM 10 emissions definition should not include “uncombined water.”

The March 16, 2000, SIP submittal also included changes to KCAQR Section 16.0—“Open Burning” and Section 25.0—“Permits.” EPA is not discussing those changes at this time. EPA will address those changes in a separate action described in a separate Federal Register notice.

The January 12, 2001, SIP submittal included changes to KCAQR Section 22.0—“Regulation of Fugitive Dust and Materials.” Specifically, the changes added the “paving of roadways” as a new activity for which reasonable precautions have to be taken to prevent particulate matter from becoming airborne. The list of activities for which reasonable precautions must be taken to control particulate matter now includes both the paving of roadways and the maintenance of roadways (which was moved from Section 22.1.E to 22.1.H).

EPA is taking direct final action to approve the above-described revisions to the Tennessee SIP, to incorporate changes made by Knox County to KCAQR Sections 13.0—“Definitions,” and 22.0—“Regulation of Fugitive Dust and Materials.” 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 submitted. This rule will be effective March 5, 2007 without further notice unless the Agency receives adverse comments by February 2, 2007.

If 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 be addressed in a subsequent final rule based on the proposed rule. 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 March 5, 2007 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of the rules discussed herein, and if that provision may be severed from the remainder of the rules, we may adopt as final those provisions of the rules that are not the subject of an adverse comment.

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 state law as meeting a Federal standard. As a result, it does not alter the relationship or the distribution of power and responsibilities established in the CAA. 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 CAA. 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 CAA. 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 5, 2007. 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)).

Regulated Entities . Entities potentially affected by this final rule include, but are not limited to, the following:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility would be regulated by this action, you should examine the applicability criteria in 40 CFR part 63, subpart HH, National Emissions Standards for Hazardous Air Pollutants From Oil and Natural Gas Production Facilities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Worldwide Web (WWW) . In addition to being available in the docket, an electronic copy of this final rule is also available on the Worldwide Web (WWW) through the Technology Transfer Network (TTN). Following the Administrator's signature, a copy of this final rule will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg/ . The TTN provides information and technology exchange in various areas of air pollution control.

Judicial Review . Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of this final rule is available by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by March 5, 2007. Only those objections to this final rule that were raised with reasonable specificity during the period for public comment may be raised during judicial review. Under section 307(b)(2) of the CAA, the requirements that are the subject of this final rule may not be challenged later in civil or criminal proceedings brought by EPA to enforce these requirements.

Section 307(d)(7)(B) of the CAA further provides a mechanism for us to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to the EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

Organization of this Document . The information presented in this preamble is organized as follows:

Sections 112(c)(3) and 112(k)(3)(B) of the CAA instruct us to identify not less than 30 hazardous air pollutants (HAP) which, as a result of emissions from area sources, 1 present the greatest threat to public health in the largest number of urban areas, and to list sufficient source categories or subcategories to ensure that 90 percent of the emissions of the listed HAP (area source HAP) are subject to regulation. CAA Section 112(c)(3) requires us to regulate these listed area source categories under CAA section 112(d). Section 112(d)(5) of the CAA provides us with the discretion to set standards for area sources according to generally available control technologies (GACT) or management practices in lieu of maximum achievable control technologies (MACT). Unlike MACT, there is no prescription in CAA section 112(d)(5) that standards for existing sources must, at a minimum, be set at the level of emission reduction achieved by the best performing 12 percent of existing sources, or that standards for new sources be set at the level of emission reduction achieved in practice by the best controlled similar source. The legislative history suggests that standards under CAA section 112(d)(5) should “[reflect] application of generally available control technology—that is, methods, practices, and techniques which are commercially available and appropriate for application by the sources in the category considering economic impacts and the technical capabilities of the firms to operate and maintain the emissions control systems.” SEN. REP. NO. 101-228, at 171 (1989). Thus, by contrast to MACT, CAA section 112(d)(5) allows us to consider various factors in determining the appropriate standard for a given area source category.

We are issuing standards for this area source category under CAA section 112(d)(5), in lieu of a MACT standard. There are factors relevant to this area source category that warrant our consideration, and we can properly assess those factors under section 112(d)(5) of the CAA. For example, the locations of oil and natural gas production sources are dictated by the locations of the relevant natural resources rather than a need to serve a particular population center. In addition, these sources do not typically require on-site operators and are usually not manned by large staff, if manned at all. Given the unique nature of these sources, many of these sources are located in remote areas. We believe that a CAA section 112(d)(5) standard is appropriate because it would allow us to adequately address these and other relevant factors, including costs, in promulgating these national emission standards for hazardous air pollutants (NESHAP).

We initially proposed NESHAP for the Oil and Natural Gas Production source category on February 6, 1998 (63 FR 6288) that addressed both major and area source oil and natural gas production facilities. CAA Section 112(c)(3) authorizes us to list for regulation an area source category “which the Administrator finds present a threat of adverse effects to human health or the environment * * * warranting regulation.” In the 1998 proposed NESHAP, we proposed to regulate this area source category pursuant to CAA section 112(c)(3) due to the risks from exposure to benzene emissions from triethylene glycol (TEG) dehydration units at these area sources. Public comments were solicited at the time of the proposal. We received 29 comment letters on the proposed area source standards. On June 17, 1999, we promulgated the NESHAP for major sources of oil and natural gas production (64 FR 32610) but did not finalize either the 1998 proposed listing of this area source category for regulation or the proposed area source standards. Instead, on July 19, 1999, we published the Urban Air Toxics Strategy (Strategy) (64 FR 38706, July 19, 1999). The Strategy included benzene as one of the 30 listed area source HAP under CAA section 112(k)(3)(B)(i). The Strategy also listed oil and natural gas production for regulation under CAA section 112(k)(3)(B)(ii) because TEG dehydration units at oil and natural gas production facilities contributed approximately 47 percent of the national urban benzene emissions from area sources. On July 8, 2005 (70 FR 39443), we published a supplemental proposal to the 1998 proposed area source standards. The 60-day comment period ended on September 6, 2005, and we received 18 comment letters on the supplemental proposal. Today's final rule reflects our consideration of all of the comments received on both the 1998 and 2005 proposed standards for area sources of oil and natural gas production.

This final rule affects area source oil and natural gas production facilities. An oil and natural gas production facility processes, upgrades, or stores (1) hydrocarbon liquids (with the exception of those facilities that exclusively handle black oil) to the point of custody transfer and (2) natural gas from the well up to and including the natural gas processing plant.

In this final rule, the affected source is defined as each TEG dehydration unit located at an area source oil and natural gas production facility. Other types of dehydration units or other emission points ( e.g. , equipment leaks) at area source oil and natural gas production facilities are not a part of the affected source.

The primary HAP associated with oil and natural gas production facilities include benzene, toluene, ethylbenzene, and mixed xylenes and n-hexane. Only benzene is listed under CAA section 112(k)(3)(B)(i) as one of the 30 area source HAP. Benzene is classified as a known human carcinogen based on convincing human evidence (such as observed increases in the incidence of leukemia in exposed workers), as well as supporting evidence from animal studies. In addition, short-term inhalation of high benzene levels may cause nervous system effects such as drowsiness, dizziness, headaches, and unconsciousness in humans. At even higher concentrations of benzene, exposure may cause death, while lower concentrations may irritate the skin, eyes, and upper respiratory tract. Long-term inhalation exposure to benzene may cause various disorders of the blood and toxicity to the immune system. Reproductive disorders in women, as well as developmental effects in animals, have also been reported for benzene exposure.

Benzene emissions from TEG dehydration units at oil and natural gas production facilities contributed approximately 47 percent of the nationwide urban area source benzene emissions. Accordingly, this final rule regulates benzene emissions from TEG dehydration units at area source oil and natural gas production facilities.

You are subject to emissions reduction requirements in this final rule if you own or operate a TEG dehydration unit with an actual annual average natural gas flow rate equal to or greater than 85 thousand standard cubic meters per day (thousand m 3 /day) (3 million standard cubic feet per day (MMSCF/D)), and with benzene emissions equal to or greater than 0.90 Megagrams per year (Mg/yr) (1.0 ton per year (tpy)).

We created three subcategories of sources in this final rule. We created a subcategory of TEG dehydration units with either an annual average natural gas flowrate less than 85 thousand m 3 /day (3 MMSCF/D) or benzene emissions less than 0.90 Mg/yr (1.0 tpy). As explained in the supplemental proposed rule, we determined that GACT is no control for these sources. We did not receive any comments on this determination.

As for those TEG dehydration units with an annual average natural gas flow rate equal to or greater than 85 thousand m 3 /day (3 MMSCF/D) and benzene emissions equal to or greater than 0.90 Mg/yr (1.0 tpy), we subcategorized these units based on their locations with regard to areas of higher population densities. In evaluating population density, we started with the U.S. Census Bureau terms of “urbanized area” and “urban cluster.” Upon evaluating the characteristics of this area source category, we define areas of higher population densities to be urbanized areas (UA), 2 urban clusters (UC)  3 that contain 10,000 people or more, 4 and the area located two miles  5 or less from each UA boundary. For ease of reference, this final rule refers to these areas as “UA plus offset and UC.” As mentioned above, UA and UC are terms used by the United States Census Bureau to identify densely settled areas. Among other Census Bureau criteria, an UA has a population of at least 50,000 people, and an UC has a population of at least 2,500, but less than 50,000 people.

For those area source TEG dehydration units with natural gas throughput and benzene emission rates above the cutoff levels described above that are located within the UA plus offset and UC boundary, we are requiring, pursuant to CAA section 112(d)(5), that each such unit be connected, through a closed vent system, to one or more emission control devices. The control devices must: (1) Reduce HAP emissions by 95 percent or more (generally by a condenser with a flash tank); or (2) reduce HAP emissions to an outlet concentration of 20 parts per million by volume (ppmv) or less (for combustion devices); or (3) reduce benzene emissions to a level less than 0.90 Mg/yr (1.0 tpy). As an alternative to complying with these control requirements, pollution prevention measures such as process modifications or combinations of process modifications and one or more control devices that reduce the amount of HAP generated, are allowed provided that they achieve the same required emission reductions.

For those area source TEG dehydration units with natural gas throughput and benzene emission rates above the cutoff levels described above that are located outside of UA plus offset and UC boundaries, we are requiring, pursuant to CAA section 112(d)(5), that each unit reduce emissions by lowering the glycol circulation rate to be less than or equal to an optimum rate. The optimum rate is determined by the following equation:

The constant 3.0 gal TEG/lb H 2 O is the industry accepted rule of thumb for a TEG-to-water ratio. The constant 1.15 is an adjustment factor included for a margin of safety.

We decided to subcategorize in the manner described above for several reasons. We received a number of comments on both the 1998 and 2005 proposals that this source category contains many sources that are located in remote areas. Our understanding of this area source category is consistent with the comment on the remoteness of the locations of many of these sources. We recognize that the oil and natural gas production source category is unique compared to many other area source categories in that the location of these sources is dictated by the location of the relevant natural resources rather than a need to serve a particular population center. In addition, sources in this category do not typically require on-site operators and are usually not manned by large staff, if manned at all. As previously mentioned, we believe that the standards need to be tailored to appropriately address these unique circumstances.

In conducting our analysis, we compared the impacts of applying the add-on control requirement described above to TEG dehydration units nationwide to the impacts of only applying the requirement to units located in areas of high population densities (i.e., within the UA plus offset and UC boundary). 6 Applying the add-on control to the estimated 2,222 TEG dehydration units nationwide would result in approximately 13,400 tpy of HAP (4,020 tpy of benzene) emission reduction. We estimate that these 2,222 TEG dehydration units are located in States with a combined population of 92 million people. 7 The annual cost for this option was estimated to be $39 million. We then evaluated the impacts of applying the add-on control requirement to only those TEG dehydration units located within UA plus offset and UC boundaries. We estimated 50 TEG dehydration units in this area with a combined population of 80 million people. This scenario would result in a 300 tpy HAP (90 tpy of benzene) emission reduction and an annual cost of compliance of $883 thousand. Thus, extending the add-on control requirement to sources outside the UA plus offset and UC boundaries would result in an additional annual cost exceeding $38 million in an area with a combined population of 12 million people. This analysis showed that the overall cost of controlling units outside UA plus offset and UC boundaries was much higher for a lower population.

Since the areas located outside UA plus offset and UC boundaries are sparsely populated compared to those inside UA plus offset and UC boundaries, we do not believe the additional cost associated with extending the add-on control requirement to sources in this area is justified. Under this final rule, the add-on control requirement applies only to sources located within the UA plus offset and UC boundaries. Section 112(d)(5) of the CAA authorizes us to set standards for area sources that provide for the use of generally available management practices by sources to reduce HAP emissions. Pursuant to CAA section 112(d)(5), we have prescribed a management practice for sources located outside the UA plus offset and UC boundaries. We have determined that adjusting the TEG circulation rate is an appropriate management practice for several reasons. First, by lowering the TEG circulation rate, the amount of glycol that comes in contact with the natural gas is reduced, thereby lowering the amount of HAP (e.g., benzene) that is absorbed by the glycol and subsequently emitted through the reboiler vent when the glycol is regenerated. We estimate that the HAP emissions reduction is approximately 7,600 tpy (2,400 tpy of benzene) for the approximately 2,172 sources located outside UA plus offset and UC boundaries. Second, reducing the TEG circulation rate has the added benefit of reducing natural gas losses. Natural gas is also absorbed by the TEG, and subsequently emitted through the reboiler vent. The amount of natural gas vented is directly proportional to the TEG circulation rate. Lowering the TEG circulation rate has a direct impact on the amount of natural gas lost. Third, optimizing the TEG circulation rate can be achieved without sacrificing the performance of the TEG dehydration unit. Fourth, this process variable does not require the presence of an on-site operator to maintain and, thus, would be an achievable option for unmanned sources. Finally, the TEG circulation rate can be optimized for minimal capital cost (e.g., a new pump may be required) and could result in an annual cost savings due to the reduction of the natural gas losses. Therefore, this final rule requires each TEG dehydration unit at area source oil and natural gas production facilities located outside of UA plus offset and UC boundaries to reduce emissions by optimizing the TEG circulation rate.

To demonstrate that the actual annual average natural gas flowrate of your TEG dehydration unit is less than 85 thousand m 3 /day (3 MMSCF/D), this final rule specifies that you must determine the natural gas flow rate using either a flow measurement device or another method approved by the Administrator. To demonstrate that your TEG dehydration unit emits less than 0.90 Mg/yr (1.0 tpy) of benzene, this final rule specifies that you must determine its emissions using either GRI-GLYCalc TM , Version 3.0 or higher, or direct measurement.

For TEG dehydration units that have an actual annual average natural gas flowrate and benzene emission rate at or above the cut-off levels mentioned above and are located within the UA plus offset and UC boundaries, the source must submit Notification of Compliance Status Reports, inspect/test the closed-vent system and control device(s), and establish monitoring parameter values. If the unit is above the cut-offs and located outside the UA plus offset and UC boundaries, the source only has to submit an Initial Notification which must include a certified statement of future compliance.

We are finalizing the change proposed in the July 8, 2005 notice to allow ASTM D6420-99 (2004) as an alternative where EPA Method 18 is specified. The General Provisions of 40 CFR part 63 will be amended to incorporate the approved method by reference for 40 CFR part 63, subpart HH. See section VI.J. for further discussion.

Area sources within UA plus offset and UC boundaries are required to submit periodic reports on an annual basis, instead of semiannually, as is required for major sources. Continuous compliance requirements include submitting periodic reports, conducting annual inspections of closed-vent systems, repairing leaks and defects, conducting the required monitoring, and maintaining the required records. As described in the 1998 proposal and the 2005 proposal, these monitoring, recordkeeping, and reporting requirements are the same as those required for major sources except for the frequency of submittal for periodic reports. Sources outside the UA plus offset and UC boundaries must maintain a record of the circulation rate determination.

The compliance date provisions for existing sources in this final rule differ from the two proposed rules in two respects. First, because we have added a management practice requirement to this final rule, we included a 2-year compliance deadline for existing sources subject to this requirement. The management practice requirement would require, at most, that a source install a new glycol pump to optimize the TEG circulation rate. We believe that 2 years is a sufficient length of time in which to install and operate the glycol pump at the optimum circulation rate. We considered making the compliance deadline 1 year, however we decided that given the estimated 2,172 sources required to implement this management practice, a 2-year compliance period was more appropriate.

Second, we use the date of the 1998 proposed rule for defining existing and new sources in “Urban-1” counties only. In the 2005 supplemental proposal, we used the date of the 1998 proposed rule to define new and existing sources in both Urban-1 and “Urban-2” counties, because we had proposed to regulate sources in these counties in the 1998 proposed rule. 8 Since then, we concluded that defining existing and new sources in Urban-2 counties based on the date of the 1998 proposed rule would be inappropriate because the 1998 proposed rule contained an inaccurate definition for Urban-2 and, therefore, did not provide adequate notice to sources in Urban-2 counties. Accordingly, this final rule uses the date of the 1998 proposal for defining existing and new sources in Urban-1 counties only. For sources in areas other than Urban-1 counties, this final rule determines existing and new sources based on the date of the 2005 supplemental proposal.

Table 1 of this preamble presents compliance dates for existing and new sources for this final rule.

Whereas the proposed rules proposed applying the add-on control requirement either nationally or only to TEG dehydration units at sources located in “urban” counties, this final rule applies this requirement to: Units at area sources located within a UA plus offset and UC boundary, which is described in section II.E above. Units at area sources not located within the UA plus offset and UC boundaries must implement the prescribed management practices (i.e., adjust TEG circulation rate) for operation of the TEG dehydration unit. Guidance is available on the Internet at http://www.epa.gov/ttn/atw/oilgas/oilgaspg.html to assist in determining your location relative to a UA plus offset and UC boundary, or you can access the Bureau of Census Web site at http://factfinder.census.gov to generate a map based on the location of your TEG dehydration unit and calculate the location relative to the nearest UA plus offset and UC boundaries.

This final rule follows the requirements of the General Provisions (40 CFR part 63, subpart A) regarding startup, shutdown, and malfunction (SSM) events. Because this final rule only requires area sources within UA plus offset and UC boundaries to have add-on control, only sources within the UA plus offset and UC boundaries are subject to the General Provisions regarding SSM.

Our responses to all of the significant public comments on both proposals are presented in the Response to Comments Document which is available in Docket No. EPA-HQ-OAR-2004-0238.

Comment: We proposed two options for the geographic applicability criteria: (1) all TEG dehydration units would be subject to area source standards (hereinafter referred to as “Option 1”); and (2) area source standards would apply to TEG dehydration units located in Urban-1 and Urban-2 counties (hereinafter referred to as “Option 2”). We received comments objecting to Option 1 for primarily two reasons: (1) EPA does not have the authority to regulate rural sources under the CAA; and (2) regulation of rural or remote sources is not warranted due to low exposure risks.

The commenters stated that nationwide applicability is contrary to the plain language of the CAA, specifically section 112(k). According to the commenters, CAA section 112(k) is designed to address those smaller sources of HAP that create unacceptable exposures in concentrated urban areas; remote, small, or sparsely populated rural areas, where many dehydrators are located, are therefore not within the scope of CAA section 112(k)(1). Several commenters stated that there is no clear indication that emissions from remote sources provide a meaningful contribution to ambient air toxic levels in urban areas; therefore, regulating rural sources would not have the effect intended by the CAA.

We also received comments objecting to Option 1 asserting that exposure risks from facilities located in rural or remote areas are low or nonexistent. One commenter stressed that the foundation for the area source program was based on regulating area sources in a manner that would result in a public health benefit. The commenter stated that regulating dehydration units in rural areas, which are sparsely populated, would not yield the same public health benefits that were “contemplated” by the statute.

Response: We believe that the CAA provides the Agency with the authority to regulate area sources nationwide. CAA section 112(k)(1) states that “It is the purpose of this subsection to achieve a substantial reduction in emissions of hazardous air pollutants from area sources and an equivalent reduction in the public health risks associated with such sources including a reduction of not less than 75 per centum in the incidence of cancer attributable to emissions from such sources.” Consistent with this expressed purpose of CAA section 112(k) to reduce both emissions and risks, CAA section 112(k)(3)(i) requires that we list not less than 30 HAP that, as a result of emissions from area sources, present the greatest threat to public health in the largest number of urban areas. CAA sections 112(c)(3) and (k)(3)(ii) require that we list area source categories that represent not less than 90 percent of the area source emissions of each of the listed HAP. CAA section 112(c) requires that we issue standards for listed categories under CAA section 112(d). These relevant statutory provisions authorize us to regulate listed area source categories and not just sources located in urban areas.

In both the UATS and our July 8, 2005 supplemental proposal, we identified the reasons supporting a national rule (e.g., benzene's toxicity and carcinogenicity, a level playing field, the 75 percent cancer incidence reduction goal) (64 FR 38724 and 70 FR 39446). Furthermore, by requiring management practices rather than control requirements on sources outside the UA plus offset and UC boundaries, we believe that we have appropriately addressed commenters' concern with respect to remote sources being subject to unnecessary or costly requirements.

Comment: Several commenters opposed EPA's definition of “urban areas.” According to the commenters, by defining urban areas as county-wide areas, EPA has expanded urban areas to include large expanses of rural territories. One commenter stated that a comparison of land area to population on a county basis shows that the target population for protection is very thinly distributed. Four commenters referred to maps noting that the maps show vast areas of the United States that would be classified as urban areas based on the proposed definition, but have very low population. The commenters specifically referred to the State of Wyoming, in which half of the State is classified as “urban” using EPA's proposed definition. One commenter also pointed out that in Utah, six of the 12 counties designated as urban using EPA's definition have a population density of less than ten persons per square mile.

Other commenters stated that some counties with a total population of less than 5,000, and an average population density of less than two people per square mile, would be classified as urban under the Urban-2 designation. In order to illustrate the broad geographical applicability that includes remote locations, the commenters stated that, based on the Urban-2 definition, urban designations would be applied to:

• 14 of 23 counties in Wyoming;

• 20 of 33 counties in New Mexico;

• 10 or 17 counties in Nevada; and

• 17 of 56 counties in Montana.

One commenter stated that EPA's proposed definition of urban areas would be unnecessarily costly and burdensome on sites located in rural or remote areas, but classified as urban. One commenter acknowledged that there has been, and will continue to be, instances of energy production and population encroachment. However, according to the commenter, most of the known conventional or unconventional gas supply basins are likely to remain rural for the foreseeable future.

Response: The statute does not define urban, thus, leaving us the discretion to define the term. We proposed and took comments on our definition of the term urban as part of our 1999 UATS. The definition was the basis for the listing of area source categories pursuant to section 112(c)(3) and (k)(3)(B)(ii) of the CAA. We are currently under court-ordered deadlines to complete issuing standards for all listed area source categories. Changing the definition of urban would mean recreating an area source category list, which may differ significantly from the current list and, thus, greatly hinders our effort to complete our obligation by the court-ordered deadlines. Therefore, we believe that revisiting the definition of urban is inappropriate at this time. However, we have tailored this rule to address the unique circumstances associated with this source category, as described above. Moreover, in response to comments regarding the nature of remote sources, we modified this final rule and are only requiring the add-on control requirement for sources in areas of higher population densities, which we have identified as areas within the UA plus offset and UC boundaries. This rule imposes the less costly management practice requirements on sources outside the UA plus offset and UC boundaries.

Comment: Commenters said if EPA imposes controls on TEG dehydrators outside of Urban-1 areas, it should adopt a separate (lesser) control standard for those remote area sources for the following reasons:

• It is not justified based on health effects.

• Practical considerations prevent operators from achieving the 95-percent control efficiency on remote, unmanned TEG dehydrators.

Commenters said that in order to meet the 95-percent control efficiency or the outlet concentration, an operator generally has to install a system with a forced draft fan for the condenser and a flare or vapor recovery system. Many remote sources do not have an electric power supply, which precludes using a forced draft fan. Routing the vapors to the firebox or fire-tube is not practical in all situations because the high water vapor content can extinguish the fire. While flares and vapor recovery systems address this problem, they require frequent monitoring, which is a problem at unmanned sites that are only visited infrequently. The lack of electric power supply would make certain automated monitoring systems impossible.

Commenters said EPA should adopt a separate GACT standard for facilities outside of “Urban-1” areas and “urbanized areas.” The 95-percent control efficiency standard could still apply in Urban-1 areas and urbanized areas, but it would not otherwise apply to area source TEG dehydrators. The commenters recommended that EPA set GACT for facilities that are not located in Urban-1 or urbanized areas as a reduction of benzene to a level of less than 1 tpy, and remove the 95-percent control efficiency requirement. One commenter added that GACT could also be considered as the installation of a flash tank/condenser or incinerator process.

Response: We agree with the commenters that it is reasonable to require a higher level of emission reductions for TEG dehydration units located in more densely populated areas. We also recognize that the oil and natural gas source category is unique because there are many area sources that are located in remote or rural areas. For these reasons and the reasons discussed above, we have subcategorized to differentiate between those sources above the cutoff levels identified above that are located inside UA plus offset and UC boundaries and those located outside such boundaries. We require installation of control equipment for TEG dehydration units located inside UA plus offset and UC boundaries and management practices (i.e., optimized glycol circulation rate) for units located outside UA plus offset and UC boundaries. We believe that this approach addresses the commenters' concerns regarding the control of remote or rural facilities.

The environmental and cost impacts for this final rule are presented in Table 2 of this preamble:

For existing area source TEG dehydration units in the oil and natural gas production source category, we estimate that nationwide baseline area sources HAP emissions are 45,100 Mg/yr (49,600 tpy) and 13,500 Mg/yr of benzene (14,800 tpy). The final standards require that TEG dehydration units with a natural gas throughput greater than 85 thousand m 3 /day (3 MMSCF/D) and benzene emissions greater than 0.90 Mg/yr (1.0 tpy), located within the UA plus offset and UC boundaries achieve a 95-percent emission reduction or reduce benzene emissions to less than 0.90 Mg/yr (1.0 tpy) either through pollution prevention process changes or by installing a control device (e.g., condenser), while sources located outside the UA plus offset and UC boundaries optimize their glycol circulation rate. We estimate that this final rule will result in a HAP emission reduction of 7,200 Mg/yr (7,900 tpy) and 2,200 Mg/yr of benzene (2,400 tpy).

To estimate the impacts of this final rule on new sources, we assumed that new area source facilities would, in the absence of the standards, have baseline emissions equivalent to existing sources. We estimate that a total of 7,200 new area source TEG dehydration units will be constructed within the next 5 years, or 2,400 per year. Of these 7,200 new area source TEG dehydration units, we estimate that a total of 423 (141 per year) will have an actual annual average natural gas flowrate greater than or equal to 85 thousand m 3 /day (3 MMSCF/D). Using these assumptions, we estimate the nationwide emission reduction resulting from new area source TEG dehydration units complying with this final rule would be approximately 450 Mg/yr (500 tpy) of HAP and 140 Mg/yr (150 tpy) of benzene from the 141 new area sources that would become subject each year. We assume that, of the 141 new area sources, 3 would be located within the UA plus offset and UC boundaries and 138 would be located outside the boundaries.

Secondary environmental impacts are considered to be any air, water, or solid waste impacts, positive or negative, associated with the implementation of the final standards. These impacts are exclusive of the direct organic HAP air emissions reductions discussed in the previous section.

The capture and control of benzene that is presently emitted from area source TEG dehydration units will result in a decrease in volatile organic compound (VOC) emissions as well. The estimated total VOC emissions reductions are 14,550 Mg/yr (16,000 tpy) from existing sources.

Other secondary environmental impacts are those associated with the operation of certain air emission control devices (i.e., flares). The adverse secondary air impacts would be minimal in comparison to the primary HAP reduction benefits from implementing the final control requirements for area sources. We estimate that the national annual increase of secondary air pollutant emissions resulting from the use of a flare to comply with the final standards is less than 1 Mg/yr for sulfur oxides, 1 Mg/yr for carbon monoxide, and 1 Mg/yr for nitrogen oxides.

Since several compliance options are available to owners/operators of affected sources subject to the add-on control requirement, we are not sure what control method will be employed. Sources can control emissions by routing emissions to a condenser, a flare, a process heater, or back to the process or by implementing pollution prevention process changes. For the cost estimates developed for condenser systems, we looked at systems with and without the use of a gas condensate glycol separator (GCG separator) or flash tank in TEG dehydration system design. We estimate that approximately 50 sources are located within the UA plus offset and UC boundaries. For the new source cost impacts, we assumed that new area source TEG dehydration units will be constructed with a flash tank.

Affected sources located outside of UA plus offset and UC boundaries are required to operate the TEG dehydration unit at the optimum glycol circulation rate. For estimating annual costs for these sources, it was assumed that in order to meet the optimum glycol circulation rate, owners or operators would be required to purchase and install a new pump. Because reducing the glycol circulation rate to an optimum level reduces gas losses, a recovery credit is also associated with this requirement. Although we believe a minority of sources will have to install a new pump to meet the management practice requirements, costs were estimated by assuming that 50 percent of the 2,172 sources would have to install a new pump while the other 50 percent could lower the circulation rate sufficiently by making adjustments on the existing pump.

The estimated annual costs shown in Table 2 of this preamble include the capital cost; operating and maintenance costs; the cost of monitoring, inspection, recordkeeping, and reporting; and any associated product recovery credits.

For the 1998 proposal, we prepared an economic impact analysis evaluating the impacts of the rule on affected producers, consumers, and society. The economic analysis focused on the regulatory effects on the United States natural gas market that is modeled as a national, perfectly competitive market for a homogenous commodity.

The results of the analysis showed that the imposition of regulatory costs on the natural gas market would result in negligible changes in natural gas prices, output, employment, foreign trade, and business closures. The price and output changes as a result of the 1998 proposed regulation were estimated to be less than 0.01 percent, significantly less than observed market trends. We continue to believe that the previous analysis is valid for today's action and that the result of the 1998 economic impact analysis resulted in a very low percent increase in price and output changes. Therefore, we believe that imposition of regulatory costs associated with this final rule will result in negligible changes in natural gas prices, output, employment, foreign trade, and business closures.

The water impacts associated with the installation of a condenser system for the TEG dehydration unit reboiler vent would be minimal. This is because the condensed water collected with the hydrocarbon condensate can be directed back into the system for reprocessing with the hydrocarbon condensate or, if separated, combined with produced water for disposal by reinjection.

Similarly, the water impacts associated with installation of a vapor control system would be minimal. This is because the water vapor collected along with the hydrocarbon vapors in the vapor collection and redirect system can be directed back into the system for reprocessing with the hydrocarbon condensate or, if separated, combined with the produced water for disposal for reinjection.

The best management practice of optimizing the glycol circulation rate would result in lower quantities of water being absorbed into the glycol and sent to the glycol dehydration unit.

Therefore, we expect the adverse water impacts from the implementation of the emissions reduction options for the final area source standards to be minimal.

We do not anticipate any adverse solid waste impacts from the implementation of the area source standards.

Energy impacts are those energy requirements associated with the operation of emission control devices. There would be no national energy demand increase from the operation of any of the control options analyzed under the final oil and natural gas production standards for area sources. The final area source standards encourage the use of emission controls that recover hydrocarbon products, such as methane and condensate that can be used on-site as fuel or reprocessed, within the production process, for sale. There are no energy requirements associated with the management practices within this final rule. Thus, the final standards have a positive impact associated with the recovery of non-renewable energy resources.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action.” This action meets criteria 3(f)(4) of Executive Order 12866, “raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.” Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Order 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action.

The information collection requirements in this rule have been submitted for approval to OMB under the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. The information collection requirements are not enforceable until OMB approves them.

The information to be collected for the area source provisions of the Oil and Natural Gas Production NESHAP are based on notification, recordkeeping, and reporting requirements in the NESHAP General Provisions in 40 CFR part 63, subpart A, which are mandatory for all operators subject to national emission standards. These recordkeeping and reporting requirements are specifically authorized by section 114 of the CAA (42 U.S.C. 7414). All information submitted to the EPA pursuant to the recordkeeping and reporting requirements for which a claim of confidentiality is made is safeguarded according to EPA policies set forth in 40 CFR part 2, subpart B.

This final rule requires maintenance inspections of the control devices but does not require any notifications or reports beyond those required by the applicable General Provisions in subpart A to 40 CFR part 63. The recordkeeping requirements require only the specific information needed to determine compliance.

The Oil and Natural Gas Production NESHAP requires that facility owners or operators retain records for a period of 5 years, which exceeds the 3-year retention period contained in the guidelines in 5 CFR 1320.6. The 5-year retention period is consistent with the provisions of the General Provisions of 40 CFR part 63, and with the 5-year records retention requirement in the operating permit program under title V of the CAA. All subsequent guidelines have been followed and do not violate any of the Paperwork Reduction Act guidelines contained in 5 CFR 1320.6.

The annual projected burden for this information collection to owners and operators of affected sources subject to the emissions reduction requirements in this final rule (averaged over the first 3 years after the effective date of the promulgated rule) is estimated to be 28,000 labor-hours per year, with a total annual cost of $1.6 million per year. These estimates include a one-time performance test and report (with repeat tests where needed), preparation of a startup, shutdown, and malfunction plan, immediate reports for any event when the procedures in the plan were not followed, annual compliance reports, maintenance inspections, notifications, and recordkeeping.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. When this Information Collection Request is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the Federal Register to display the OMB control number for the approved information collection requirements contained in this final rule.

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute 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 organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business with 500 employees or less (as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's final rule on small entities, EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities. This final rule requires emission reductions (either by installing a control device or by implementing management practices) at facilities that operate a TEG dehydration unit with an average annual natural gas throughput at or above 85 thousand m3/day (3 MMSCF/D) and benzene emissions at or above 0.90 Mg/yr (1.0 tpy). This final rule provides that GACT is no control for sources with natural gas flow below 85 thousand m3/day (3 MMSCF/D) or with benzene emissions below 0.90 Mg/yr (1.0 tpy) of benzene. Accordingly, we estimated that 2,222 of the 38,000 sources would be subject to the emission reduction requirements.

We performed an economic impact analysis to estimate the changes in product price and production quantities due to this final rule. Because sales and revenues data were not readily available for the affected industries, we began our analysis by examining the annual cost of meeting the emissions reduction requirements. Since the maximum cost incurred by a source subject to this final rule occurs when installing add-on controls, we are basing our analysis on that compliance approach. The annual per unit cost of compliance with this final rule would be $17,657. The throughput cost for natural gas has experienced significant volatility within the past several years, making a point estimate difficult to identify. The wellhead natural gas price, from the Department of Energy, averaged $4.00 per thousand cubic feet from 2001 to 2003. In order to be conservative for this analysis, we assumed a natural gas price of $88.29 per thousand cubic meters ($2.50 per thousand cubic feet).

One frequently used approach for determining whether or not a rule would have a significant impact on a small entity is to compare annualized control cost with annualized revenue from sales. Typically, costs less than 1 percent of revenues are not considered as imposing a significant impact. In the present case, the annual per-unit cost of compliance is estimated to be $17,657. Using the aforementioned 1 percent criterion for significant impact, annual revenues would have to be less than $1,765,700 in order for significant impact to occur. At $88.29 per thousand cubic meters ($2.50 per thousand cubic feet) of throughput, that revenue translates to 19,999 thousand cubic meters per year (706,280 thousand cubic feet per year) throughput, or 54.8 thousand m3/day (1.94 MMSCF/D). Since the cutoff for installation of emissions controls for this final rule is 85 thousand m3/day (3 MMSCF/D), we determined the annual cost of control for those entities affected by this final rule is not sufficient to generate a significant impact on a substantial number of small entities.

Although this final rule will not have a significant economic impact on a substantial number of small entities, we nonetheless have tried to reduce the impact of this rule on small entities. Where periodic reporting is required, we are requiring annual reporting in this rule, as opposed to semi-annual reporting that is required in the major source NESHAP for this category. In addition, our subcategorization, as described above, should reduce the number of small entities impacted and the extent of the impact.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with this final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. The maximum total annual cost of this final rule for any 1 year has been estimated to be less than $2.5 million. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA. In addition, the rule does not significantly or uniquely affect small governments because it does not contain any requirements applicable to such governments or impose obligations upon them. Therefore, today's rule is not subject to section 203 of the UMRA.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.”

This final rule does not have federalism implications. It will 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. Thus, Executive Order 13132 does not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175.

This final rule does not significantly or uniquely affect the communities of Indian tribal governments. We do not know of any area source TEG dehydration units owned or operated by Indian tribal governments. However, if there are any, the effect of this final rule on communities of tribal governments would not be unique or disproportionate to the effect on other communities. Thus, Executive Order 13175 does not apply to this final rule.

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 Executive Order 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, 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.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This final rule is not subject to Executive Order 13045 because it is based on technology performance and not on health or safety risks.

This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, we have concluded that this rule is not likely to have any adverse energy effects.

As noted in the proposed rule, Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. VCS are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS.

This action does not involve technical standards. Therefore, EPA did not consider the use of any VCS. However, we would like to note that the draft standard ASTM Z7420Z, which was cited in the final Oil and Natural Gas Production NESHAP (64 FR 32609-32664, June 17, 1999) as a potentially practical method to use in lieu of EPA Method 18, has now been finalized by ASTM and approved by EPA for use in rules where Method 18 is cited. This new standard is ASTM D6420-99 (2004), Standard Test Method for Determination of Gaseous Organic Compounds by Direct Interface Gas Chromatography-Mass Spectrometry, and it is appropriate for inclusion in this final rule in addition to EPA Method 18, codified at 40 CFR part 60, appendix A, for measurement of total organic carbon, total HAP, total volatile HAP, and benzene.

Similar to EPA's performance-based Method 18, ASTM D6420-99 (2004) is also a performance-based method for measurement of total gaseous organic compounds. However, ASTM D6420-99 (2004) was written to support the specific use of highly portable and automated gas chromatographs/mass spectrometers (GC/MS). While offering advantages over the traditional Method 18, the ASTM method does allow some less stringent criteria for accepting GC/MS results than required by Method 18. Therefore, ASTM D6420-99 (2004) is a suitable alternative to Method 18 only where: (1) The target compound(s) are those listed in Section 1.1 of ASTM D6420-99 (2004), and (2) the target concentration is between 150 parts per billion by volume and 100 ppmv. For target compound(s) not listed in Section 1.1 of ASTM D6420-99 (2004), but potentially detected by mass spectrometry, this final rule specifies that the additional system continuing calibration check after each run, as detailed in Section 10.5.3 of the ASTM method, must be followed, met, documented, and submitted with the data report even if there is no moisture condenser used or the compound is not considered water soluble. For target compound(s) not listed in Section 1.1 of ASTM D6420-99 (2004), and not amenable to detection by mass spectrometry, ASTM D6420-99 (2004) does not apply.

As a result, EPA will allow ASTM D6420-99 (2004) for use with this final rule. The EPA will also allow Method 18 as an option in addition to ASTM D6420-99 (2004). This will allow the continued use of GC configurations other than GC/MS. Under 40 CFR 63.7(f) and 40 CFR 63.8(f), subpart A of the General Provisions, a source may apply to EPA for permission to use alternative test methods or alternative monitoring requirements in place of any of the EPA testing methods, performance specifications, or procedures.

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 United States Senate, the United States 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). This rule will be effective January 3, 2007.

The information in this section is organized as follows:

After evaluating the petition, EPA proposed, on July 19, 2005, to exclude the waste water treatment plant sludge from the lists of hazardous waste under 40 CFR 261.31 and 261.32 (see 70 FR 41358). EPA is finalizing the decision to grant GM-Arlington's delisting petition to have its waste water treatment sludge managed and disposed as non-hazardous waste provided certain verification and monitoring conditions are met.

GM-Arlington's petition requests a delisting from the F019 waste listing under 40 CFR 260.20 and 260.22. GM-Arlington does not believe that the petitioned waste meets the criteria for which EPA listed it. GM-Arlington also believes no additional constituents or factors could cause the waste to be hazardous. EPA's review of this petition included consideration of the original listing criteria and the additional factors required by the Hazardous and Solid Waste Amendments of 1984. See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4) (hereinafter all sectional references are to 40 CFR unless otherwise indicated). In making the final delisting determination, EPA evaluated the petitioned waste against the listing criteria and factors cited in § 261.11(a)(2) and (a)(3). Based on this review, EPA agrees with the petitioner that the waste is nonhazardous with respect to the original listing criteria. If EPA had found, based on this review, that the waste remained hazardous based on the factors for which the waste as originally listed, EPA would have proposed to deny the petition. EPA evaluated the waste with respect to other factors or criteria to assess whether there is a reasonable basis to believe that such additional factors could cause the waste to be hazardous. EPA considered whether the waste is acutely toxic, the concentration of the constituents in the waste, their tendency to migrate and to bioaccumulate, their persistence in the environment once released from the waste, plausible and specific types of management of the petitioned waste, the quantities of waste generated, and waste variability. EPA believes that the petitioned waste does not meet the listing criteria and thus should not be a listed waste. EPA's final decision to delist waste from GM-Arlington's facility is based on the information submitted in support of this rule, including descriptions of the wastes and analytical data from the Arlington, Texas facility.

This exclusion applies to the waste described in the petition only if the requirements described in 40 CFR Part 261, Appendix IX, Table 1 and the conditions contained herein are satisfied.

The WWTP sludge from GM-Arlington will be disposed of in a RCRA Subtitle D landfill.

This rule is effective January 3, 2007. The Hazardous and Solid Waste Amendments of 1984 amended Section 3010 of RCRA, 42 U.S.C. 6930(b)(1), allows rules to become effective less than six months after the rule is published when the regulated community does not need the six-month period to come into compliance. That is the case here because this rule reduces, rather than increases, the existing requirements for persons generating hazardous waste. This reduction in existing requirements also provides a basis for making this rule effective immediately, upon publication, under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).

Because EPA is issuing this exclusion under the Federal RCRA delisting program, only states subject to Federal RCRA delisting provisions would be affected. This would exclude states which have received authorization from EPA to make their own delisting decisions.

EPA allows states to impose their own non-RCRA regulatory requirements that are more stringent than EPA's, under section 3009 of RCRA, 42 U.S.C. 6929. These more stringent requirements may include a provision that prohibits a Federally issued exclusion from taking effect in the state. Because a dual system (that is, both Federal (RCRA) and State (non-RCRA) programs) may regulate a petitioner's waste, EPA urges petitioners to contact the State regulatory authority to establish the status of their wastes under the State law.

EPA has also authorized some states (for example, Louisiana, Oklahoma, Georgia, and Illinois) to administer a RCRA delisting program in place of the Federal program; that is, to make state delisting decisions. Therefore, this exclusion does not apply in those authorized states unless that state makes the rule part of its authorized program. If GM-Arlington transports the petitioned waste to or manages the waste in any state with delisting authorization, GM-Arlington must obtain delisting authorization from that state before it can manage the waste as nonhazardous in the state.

A delisting petition is a request from a generator to EPA, or another agency with jurisdiction, to exclude or delist from the RCRA list of hazardous waste, certain wastes the generator believes should not be considered hazardous under RCRA.

Under §§ 260.20 and 260.22, facilities may petition EPA to remove their wastes from hazardous waste regulation by excluding them from the lists of hazardous wastes contained in §§ 261.31 and 261.32. Specifically, § 260.20 allows any person to petition the Administrator to modify or revoke any provision of 40 CFR Parts 260 through 265 and 268. Section 260.22 provides generators the opportunity to petition the Administrator to exclude a waste from a particular generating facility from the hazardous waste lists.

Petitioners must provide sufficient information to EPA to allow EPA to determine that the waste to be excluded does not meet any of the criteria under which the waste was listed as a hazardous waste. In addition, the Administrator must determine, where he/she has a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste and that such factors do not warrant retaining the waste as a hazardous waste.

On September 14, 2004, GM-Arlington petitioned EPA to exclude from the lists of hazardous wastes contained in §§ 261.31, WWTP sludge (F019) generated from its facility located in Arlington, Texas. The waste falls under the classification of listed waste pursuant to § 261.31.

Specifically, in its petition, GM-Arlington requested that EPA grant a standard exclusion for 3,000 cubic yards per year of the WWTP sludge.

To support its petition, GM-Arlington submitted:

(1) Historical information on waste generation and management practices;

(2) background information and Memorandum of Understanding for the Michigan ECOS project;

(3) analytical results from six samples for total concentrations of COCs; and

(4) analytical results from six samples for Toxicity Characteristic Leaching Procedure(TCLP) extract values.

Comments were submitted by General Motors Worldwide Facilities Group Environmental Services to correct information contained in the proposed rule and comments in support of granting the petition were submitted by the Alliance of Automobile Manufacturers.

Comment: GM requests that EPA clarify that GM, at its discretion, has the option to dispose of the waste in any Subtitle D landfill and is not bound to use the site Waste Management landfill. GM also requests that EPA clarify that an authorized state may accept EPA's decision or make their own determinations based upon their own review process. This comment was also supported by the Alliance of Automobile Manufacturers.

Response: EPA does not limit the disposal of the F019 to a specific Subtitle D landfill. EPA states, in the exclusion language on page 41366 of the proposed rule in Table 1, (2)(B), that GM-Arlington can manage and dispose of the nonhazardous WWTP sludge according to all applicable solid waste regulations. GM provided in its petition specific reference to the Waste Management, East Oak Landfill, 3201 Mostley Road, Oklahoma City, OK 73141 as a disposal site for this waste. Since this disposal site is cited in the GM delisting petition and Oklahoma Department of Environmental Quality (ODEQ) is authorized for delisting, GM should consult with ODEQ regarding waste disposal and meet ODEQ requirements. EPA's delisting authority does not apply in Oklahoma. If GM decides to dispose the waste in another Subtitle D landfill in a state not authorized for delisting, GM must notify EPA by a letter regarding the disposal site which meets all applicable Subtitle D solid waste regulations in accordance with the notification requirements in paragraph (7) of the exclusion.

Comment: In Section III B. of the preamble, EPA states “Acrylamide was a major compound of concern for other nationwide GM plants’ petitions * * *” GM requests that EPA qualify this statement to accurately reflect that the issues previously experienced regarding acrylamide were due to complex modeling and analytical issues and not tangible environmental issues.

Response: Acrylamide is not a compound of concern (COC) for the waste at GM-Arlington, because it is not detected in the waste.

Comment: EPA incorrectly states that Multiple pH testing was performed on the waste.

Response: Multiple pH is incorrectly stated in Section III C.(5) of the preamble. No multiple pH testing was performed.

Comment: GM requests that EPA revise Table 1, Analytical Results/Maximum Allowable Concentrations to correct an error; tetracholoethane to tetrachloroethylene.

Response: We acknowledge the typographical error of tetrachoroethylene. However, EPA does not republish supporting tables from the proposed rule. Tetrachloroethylene will not be included in Table 1 because it is a non-detected compound and is not a COC.

Comment: GM requests that EPA Region VI incorporate the same risk level used by EPA Region V for arsenic. EPA should correct the cadmium concentration to 0.36 mg/l. GM is unable to recreate the levels presented for both the inorganic and organic constituents because EPA has yet to make available to the public a current and corrected version of the DRAS model.

Response:

• The maximum TCLP concentration of arsenic is below detection limit and is not a COC for GM-Arlington's delisting exclusion.

• The delisting level for cadmium is 0.36 mg/l and has been corrected in the final exclusion language.

• EPA Region 6 used DRAS Version 2.0 to evaluate risk from disposal of the GM-Arlington wastes. The maximum concentration levels we proposed for the GM-Arlington rule are based on the delisting process. We will provide GM with this Version of the DRAS on CD. The model is run at a risk level of 1 × 10 − 5 and a hazard quotient of 0.1. EPA Regions 5 and 6 currently use different risk level thresholds for calculating waste concentrations, Region 6 risk assessors feel confident that using the risk level and hazard quotient in this manner provide protective results for all Region 6 petitioners.

Comment: The web link referenced in the preamble to access the DRAS model is incorrect. GM suggests that EPA correct this link as follows: http://www.epa.gov/region6/6pd/rcra_c/pd-o/dras/dras.htm.

Response: We acknowledge the web link: http://www.epa.gov/region6/6pd/rcra_c/pd-o/dras/dras.htm is incorrect. The link to the risk assessment page of the Delisting Program Webpage is sometimes broken when updates to the web page are made. The DRAS can be accessed by using the Region 6 hazardous waste delisting program page as a point of entry. That web link is currently: http://www.epa.gov/arkansas/6pd/rcra_c/pd-o/delist.htm. The DRAS will be associated with the “risk assessment” link.

Comment: GM requests that EPA clarify the preamble language to match the language in condition (4) Changes in Operating Conditions, in Table 1. The condition requires EPA approval, when and if, there is a significant change in the waste that may or could result in a significant change in composition of the waste. This comment is also supported by the Alliance of Automobile Manufacturers.

Response: As stated above, we do not republish preamble language. As GM states, the language found in the exclusion language of Appendix IX to Part 261—Waste Excluded Under §§ 260.20 and 260.22. Table 1—Waste Excluded From Non-Specific Sources, explains what GM must do in cases where operating conditions change. Any changes which affect waste composition, waste volume, and toxicants' concentration levels above health-based safe criteria require notification of EPA whether it is a process or an equipment change in operation.

Comment: GM requests that EPA reevaluate the list of constituents of concern identified in the proposed conditions for the delisting. GM requests that 51 chemicals be removed from the list of constituents with corresponding delisting levels. There also 5 chemicals that were detected but the TCLP results were not within 2 orders of magnitude of the DRAS exit level. GM requests that these five chemicals be removed also. This comment is also supported by the Alliance of Automobile Manufacturers.

Response: The undetected constituents will be removed from Table 1. EPA Region 6 lists all detected constituents with a corresponding delisting concentration level in its exclusions. If the concentrations ever exceed the delisting limit, they would go unmonitored because testing was not required for the verification and annual testing. The following sixteen (16) chemicals will remain in the final rule as COCs: (1) Acetone; (2) Ethyl Benzene; (3) n-Butyl Alcohol; (4) Toluene; (5) Bis(2-Ethylhexyl) Phthalate; (6) p-Cresol; (7) Naphthalene; (8) Barium; (9) Cadmium; (10) Chromium; (11) Cobalt; (12) Lead; (13) Nickel; (14) Silver; (15) Tin; and (16) Zinc.

Comment: The verification testing requirements as described in the preamble and proposed conditions for delisting are confusing and inconsistent with other delisting conditions for similar waste streams. This comment is also supported by the Alliance of Automobile Manufacturers.

Response: Delistings are site-specific rule makings. The verification and sampling requirements for a petition will vary and be structured under consideration of the site specific conditions.

Comment: GM believes eight samples required for the initial sampling schedule is overly rigorous and requests that EPA remove the initial sampling verification requirement. GM proposes that it will manage the waste as hazardous until it has performed verification testing of one sample analyzed for ten constituents. Provided that the delisting levels are not exceeded, then GM may manage the waste as nonhazardous. This is consistent with the delisting petition issued in Region 5 for similar facilities. GM-Arlington will be at a competitive disadvantage, if it were to have to manage its wastes differently from those included in the Region 5 petition. This comment is also supported by the Alliance of Automobile Manufacturers.

Response: Sixteen data points are necessary to perform statistical analysis on the data received. GM proposes in its comment to perform only one sample. One sample cannot be a statistical pool. EPA proposed, during the verification period, that 18 samples would be collected. The verification requirements of eight (8) initial samples, 6 samples over the next three quarters, in addition to the 6 samples initially provided was proposed so that enough data would be collected to complete statistical analysis of the data provided. The EPA has considered the comments made by GM and the requirement of eight initial samples will be reduced to two. The number of samples for the quarterly sampling will remain the same, two each quarter for the first year. EPA will not evaluate the data using a statistical approach; we will use the highest concentration of each chemical to evaluate the petition. The Verification Testing Language has been revised to represent the following: (1) Two samples taken in the first 30 days after the exclusion is issued; (2) The report provided to EPA thirty days after the samples are taken, which is 60 days after the exclusion has been issued—Management of the waste as non-hazardous may begin after the EPA reviews and approves the data; (3) GM must then perform subsequent verification by collecting and analyzing two samples for each sampling event for the next three quarters of the first year. Quarterly reports are due to EPA within 30 days of the sampling event; and (4) After completion of the Initial and Subsequent testing and notification by letter from EPA, GM will be required to collect one sample annually, and provide EPA with the results from the annual verification test within 30 days of the sampling event.

Comment: GM requests that the Arlington, TX facility be allowed to manage its sludge as non-hazardous upon completion of the first successful verification sampling event.

Response: As stated above, EPA Region 6 will allow GM to manage its waste as non-hazardous if the sludge meets the delisting levels after the initial verification testing.

Comment: GM supports the delisting conditions of Table 1, condition 2(c) which allows GM-Arlington to collect one additional sample and perform expedited analysis to verify an exceedance of a delisting level.

Response: While in such limited testing scenarios EPA does not expect a petitioned waste to fail the delisting levels, there are instances where anomalous results may be reported. EPA will allow a petitioner to retest to confirm or disprove an anomalous result.

Comment: GM supports EPA's approach to allow GM to end the quarterly sampling requirement after one year of successfully demonstrating that the waste meets the delisting levels.

Response: Annual sampling is required after one year of quarterly sampling as it states in Table 1 Condition (3)(C)(ii).

Comment: GM requests clarification as to what information will satisfy the requirement in Condition (3)(A)(iii) regarding analytical quality control information.

Response: EPA expects that analytical quality control information and the sample analysis include the data from an equipment blank, quality of distilled water or extraction solvent, duplicates for precision measurement, a spike to measure % recovery for accuracy to define the closeness of the true values of measured data.

Comment: GM requests that EPA allow GM to replace the certification language proposed with the certification language in 40 CFR 260.22(i)(12), consistent with other delisting petitions granted by EPA for similar waste streams. This comment is also supported by the Alliance of Automobile Manufacturers.

Response: The certification language included in the proposed exclusion is consistent with the language in all EPA Region 6 conditional exclusions. No change to this language will be made.

1. Page 41360, III A. There is a typographical error “Felist”. This should be “Delist”.

2. Page 41360. Arsenic should be deleted from Table 1, since its concentration is below the detection limit.

3. Page 41362. The web link to access the DRAS model should be corrected.

4. Page 41362. The middle column states “Using the risk level(carcinogenic risk of 10-5 and non-cancer hazard index of 1.0) * * *” We use a hazard quotient for individual chemical is 0.1, assuming average number of chemicals on site is 10. Therefore, the wording of hazard index of 1.0 should be changed to hazard quotient of 0.1 because we are talking about the risk level of each chemical. Hazard index means the summation of quotients from individual non-carcinogenic compounds.

5. Page 41366. For Table 1 the number of delisting sixty-six (66) constituents will be reduced to sixteen (16) chemicals by eliminating undetected chemicals.

Under Executive Order 12866, “Regulatory Planning and Review “ (58 FR 51735, October 4, 1993), this rule is not of general applicability and therefore is not a regulatory action subject to review by the Office of Management and Budget (OMB). 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. ) because it applies to a particular facility only. Because this rule is of particular applicability relating to a particular facility, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), or to sections 202, 204, and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because this rule will affect only a particular facility, it will not significantly or uniquely affect small governments, as specified in section 203 of UMRA. Because this rule will affect only a particular facility, this final rule does not have federalism implications. It will 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, “Federalism”, (64 FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply to this rule. Similarly, because this rule will affect only a particular facility, this final rule does not have tribal implications, as specified in Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). Thus, Executive Order 13175 does not apply to this rule. 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 as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The basis for this belief is that the Agency used the DRAS program, which considers health and safety risks to infants and children, to calculate the maximum allowable concentrations for this rule. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866. This rule does not involve technical standards; 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. As required by section 3 of Executive Order 12988, “Civil Justice Reform”, (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. 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. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability.