[Federal Register Volume 65, Number 5 (Friday, January 7, 2000)]
[Rules and Regulations]
[Pages 1068-1070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-268]


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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

[[Page 1069]]

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

[[Page 1070]]

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.

* * * * *
    (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.
*                  *                  *                  *                  *                  *
                                                        *
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]
BILLING CODE 6560-50-P