Approval and Promulgation of Air Quality Implementation Plans; Tennessee; Revision to Rule Governing Monitoring of Source Emissions

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TN-195-9947(a), TN-188-9959(a); FRL-6519-4]

Approval and Promulgation of Air Quality Implementation Plans;

Tennessee; Revision to Rule Governing Monitoring of Source Emissions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: On February 24, 1997, and May 8, 1997, the Tennessee

Department of Environment and Conservation submitted revisions to the

Tennessee State Implementation Plan (SIP). These revisions consisted of

amendments to Rules 1200-3-12-.04 Monitoring Required for Determining

Compliance of Certain Large Sources and 1200-3-10-.02 Monitoring of

Source Emissions, Recording and Reporting of the Same are Required.

Tennessee submitted these revisions to clarify the reporting

requirements. EPA is approving the aforementioned changes to the SIP

because they are consistent with the Clean Air Act and EPA

requirements.

DATES: This direct final rule is effective on March 7, 2000 without

further notice, unless EPA receives adverse comment by February 7,

2000. If adverse comment is received, EPA will publish a timely

withdrawal of the direct final rule in the Federal Register and inform

the public that the rule will not take effect.

ADDRESSES: All comments should be addressed to: Randy Terry at the EPA,

Region 4 Air Planning Branch, 61 Forsyth Street, SW, Atlanta, Georgia

30303.

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

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

20460.

Environmental Protection Agency, Region 4 Air Planning Branch, 61

Forsyth Street, SW, Atlanta, Georgia 30303.

Office of the Federal Register, 800 North Capitol Street, NW, Suite

700, Washington, DC.

Tennessee Department of Environment and Conservation, 9th Floor L &

C Annex, 401 Church St, Nashville, TN 37243-1531.

FOR FURTHER INFORMATION CONTACT: Randy Terry at the above Region 4

address or at 404-562-9032.

SUPPLEMENTARY INFORMATION: On February 24, 1997, the Tennessee

Department of Environment and Conservation submitted a revision to

paragraph (1) of rule 1200-3-12-.04. This revision was made to change

an incorrect reference to a subparagraph (e) to the correct reference

of subparagraph (d).

On May 8, 1997, the Tennessee Department of Environment and

Conservation submitted revisions to Subpart (i) of part 1. of

Subparagraph (c) of paragraph (2) of Rule 1200-3-10-.02 of the

Tennessee SIP. These revisions delete the word ``or'' and add the

language ``in excess of the applicable emission standard or all'' to

the first sentence between the words ``averages'' and the number ``24''

so that as amended, the subpart shall read:

1. (i) The source owner or operator shall report all 3-hour

averages in excess of the applicable emission standard or all 24-hour

averages in units of the applicable emission standard. The 3-hour and

24-hour values shall be computed by taking the average of three

contiguous or 24 contiguous one-hour values of sulfur dioxide

emissions. The one-hour average values may be obtained by integration

over the one-hour period or be computed from four or more data points

equally spaced over each one-hour period. Data recorded during periods

of monitoring system breakdowns, repairs, calibration checks, and zero

and span adjustments shall not be included on the data averages.

Final Action

EPA is approving the aforementioned changes to the State

Implementation Plan (SIP) because they are consistent with the Clean

Air Act and EPA requirements.

EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

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

Federal Register publication, EPA is publishing a separate document

that will serve as the proposal to approve the SIP revision should

relevant adverse comments be filed. This rule will be effective March

7, 2000 without further notice unless the Agency receives relevant

adverse comments by February 7, 2000.

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

withdrawing the final rule and informing the public that the rule will

not take effect. All public comments received will then be addressed in

a subsequent final rule based on the proposed rule. The EPA will not

institute a second comment period on the proposed rule. Only parties

interested in commenting on this action should do so at this time. If

no such comments are received, the public is

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advised that this rule will be effective on March 7, 2000 and no

further action will be taken on the proposed rule.

Administrative Requirements

A. Executive Order 12866

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

regulatory action from Executive Order 12866, entitled ``Regulatory

Planning and Review.''

B. Executive Orders on Federalism

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a state, local,

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If the mandate is unfunded, EPA must provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of written

communications from the governments, and a statement supporting the

need to issue the regulation.

In addition, Executive Order 12875 requires EPA to develop an

effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.'' Today's rule does not

create a mandate on state, local or tribal governments. The rule does

not impose any enforceable duties on these entities. Accordingly, the

requirements of section 1(a) of Executive Order 12875 do not apply to

this rule.

On August 4, 1999, President Clinton issued a new executive order

on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999),)

which will take effect on November 2, 1999. In the interim, the current

Executive Order 12612, (52 FR 41685 (October 30, 1987),) on federalism

still applies. This rule will not have a substantial direct effect on

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 12612.

The rule affects only one State, and does not alter the relationship or

the distribution of power and responsibilities established in the Clean

Air Act.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is

determined to be ``economically significant'' as defined under

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.

This rule is not subject to Executive Order 13045 because it does

not involve decisions intended to mitigate environmental health or

safety risks.

D. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly affects or uniquely affects

the communities of Indian tribal governments, and that imposes

substantial direct compliance costs on those communities, unless the

Federal government provides the funds necessary to pay the direct

compliance costs incurred by the tribal governments. If the mandate is

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

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation.

In addition, Executive Order 13084 requires EPA to develop an

effective process permitting elected and other representatives of

Indian tribal governments ``to provide meaningful and timely input in

the development of regulatory policies on matters that significantly or

uniquely affect their communities.'' Today's rule does not

significantly or uniquely affect the communities of Indian tribal

governments. Accordingly, the requirements of section 3(b) of Executive

Order 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions.

This final rule will not have a significant impact on a substantial

number of small entities because SIP approvals under section 110 and

subchapter I, part D of the Clean Air Act do not create any new

requirements but simply approve requirements that the State is already

imposing. Therefore, because the Federal SIP approval does not create

any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under

the Clean Air Act, preparation of flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);

42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

annual costs to State, local, or tribal governments in the aggregate;

or to private sector, of $100 million or more. Under section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated annual costs of

$100 million or more to either State, local, or tribal governments in

the aggregate, or to the private sector. This Federal action approves

pre-existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides

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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 rule is not a ``major'' rule as defined by 5 U.S.C.

804(2).

H. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act

(NTTAA) of 1995 requires Federal agencies to evaluate existing

technical standards when developing a new regulation. To comply with

NTTAA, EPA must consider and use ``voluntary consensus standards''

(VCS) if available and applicable when developing programs and policies

unless doing so would be inconsistent with applicable law or otherwise

impractical.

The EPA believes that VCS are inapplicable to this action. Today's

action does not require the public to perform activities conducive to

the use of VCS.

I. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

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

of Appeals for the appropriate circuit by March 7, 2000. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Sulfur oxides.

Dated: October 18, 1999.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

Part 52 of chapter I, title 40, Code of Federal Regulations, is

amended as follows:

PART 52--[AMENDED]

1. The authority for citation for part 52 continues to read as

follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart RR--Tennessee

2. The entries for sections 1200-3-10-.02 and 1200-3-12-.04 in the

table in Sec. 52.2220 (c) are revised to read as follows:

Sec. 52.2220 Identification of plan.

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(c) EPA approved regulations.

EPA Approved Tennessee Regulations

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EPA

State citation Title/subject Adoption approval Federal Register

date date notice

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Section 1200-3-10-.02.............. Monitoring of Source 02/14/96 01/07/00 [65 FR 1070]

Emissions, Recording,

Reporting of the Same are

Required.

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Section 1200-3-12-.04.............. Monitoring Required for 12/28/96 01/07/00 [65 FR 1070].

Determining Compliance of

Certain Large Sources.

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[FR Doc. 00-268 Filed 1-6-00; 8:45 am]

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