[Federal Register Volume 65, Number 12 (Wednesday, January 19, 2000)]
[Rules and Regulations]
[Pages 2877-2880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-964]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TN-146-9934a; TN-156-9935a; FRL-6520-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Tennessee; Adoption of Rule Governing Any Credible Evidence

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Direct final rule.

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SUMMARY:  On November 16, 1994, the Tennessee Department of Environment 
and Conservation submitted to EPA revisions to the Nashville-Davidson 
County Local Implementation Plan (LIP). These revisions consisted of 
the adoption of section 10.56.290 Measurement and Reporting of 
Emissions amendments in the Metropolitan/Nashville Code of Laws.
    On May 3, 1995, the Tennessee Department of Environment and 
Conservation submitted to EPA revisions to the Tennessee State 
Implementation Plan (SIP). These revisions consisted of the adoption of 
Rule 1200-3-10-.04 Sampling, Recording and Reporting Required For Major 
Stationary Sources.

[[Page 2878]]

    The adoptions of section 10.56.290 into the Nashville-Davidson 
County LIP and Rule 1200-3-10-.04 into the Tennessee SIP are being 
implemented to meet the requirements of credible evidence set forth in 
the May 23, 1994 SIP call letter.

DATES: This direct final rule is effective on March 20, 2000 without 
further notice, unless EPA receives adverse comment by February 18, 
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.
    Copies of the State submittal(s) are available at the following 
addresses for inspection during normal business hours:
    Office of 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.
    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:

I. Background On Credible Evidence
II. Tennessee Response to Credible Evidence
III. EPA Review of Tennessee Response

I. Background On Credible Evidence

    On October 22, 1993, the EPA published a Federal Register document 
proposing an Enhanced Monitoring Program Rule. In that document, EPA 
proposed both new regulations and amendments to several existing air 
pollution program regulations. To address the revisions to the Clean 
Air Act (CAA) regarding the use of any credible evidence, EPA issued a 
SIP call to all states in a letter dated May 23, 1994. The purpose of 
this letter was to require the states to revise their SIP to allow for 
the use of enhanced monitoring as a means of establishing compliance 
and ``any credible evidence'' to prove violations. A Federal 
Implementation Plan (FIP) was to be promulgated if the states failed to 
correct the deficiencies in the SIP by June 30, 1995. However, during 
the time between which the Enhanced Monitoring Program Rule was 
proposed and the FIP was to be in place, EPA separated the enhanced 
monitoring rule into two new parts: ``any credible evidence'' and 
``compliance assured monitoring'' (CAM); and promulgated them in 
separate Federal Register documents. The final rule for ``any credible 
evidence'' was promulgated on February 24, 1997.

II. Tennessee Response to Credible Evidence

    In response to the May 23, 1994, SIP call, the Tennessee Department 
of Environment and Conservation submitted SIP revisions on November 16, 
1994 and May 15, 1995. These revisions consisted of the addition of 
section 10.56.290 Measurement and Reporting of Emissions to chapter 
10.56 of the Nashville-Davidson County portion of the Tennessee SIP and 
the addition of rule 1200-3-10-.04 Sampling, Recording, and Reporting 
Required for Major Stationary Sources to chapter 1200-3-10 Required 
Sampling, Recording, and Reporting of the Tennessee SIP.
    Section 10.56.290 and Rule 1200-3-10-.04 were created to ensure 
that monitoring methods may include but are not limited to: source 
testing, in stack monitoring, process parameter monitoring of material 
feed rates, temperature, pressure differentials, power consumption or 
fuel consumption; chemical analysis of feed stocks, coatings, or 
solvents; ambient monitoring; visible emissions evaluations; control 
equipment performance parameters of pressure differentials and any 
other such monitoring that the Technical Secretary may prescribe. In 
addition, all monitoring (which includes, but is not limited to 
sampling methods, analytical methods, sensor locations and frequency of 
sampling) must be conducted in a manner acceptable to the Technical 
Secretary. The monitoring method must have at least a 95% operational 
availability rate to prove compliance directly or indirectly with the 
applicable requirements unless otherwise stipulated by the Technical 
Secretary in the permit. Recordkeeping can be handwritten or a 
computerized record and shall be kept in accordance with the manner 
approved by the Technical Secretary. Reporting shall be in the manner 
prescribed by the Technical Secretary in the permit or approved by him/
her in the source's operating permit application.

III. EPA Review of Tennessee Response

    After a thorough review of the submittals, we found that the 
November 16, 1994, and May 15, 1995, submittals are adequate to meet 
the credible evidence requirements set forth in the May 1994, SIP call. 
EPA is approving these revisions because they are consistent with the 
requirements of the Clean Air Act Amendments of 1990.

Final Action

    The EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial submittal and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
adverse comments be filed. This rule will be effective March 20, 2000 
without further notice unless the Agency receives adverse comments by 
February 18, 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. 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 20, 2000 and no 
further action will be taken on the proposed rule.

I. 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 Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 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

[[Page 2879]]

power and responsibilities among the various levels of government.'' 
Under Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    This final rule 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, the requirements of section 6 of the Executive Order do not apply 
to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
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 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

[[Page 2880]]

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 20, 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: August 26, 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]I111. The authority citation for part 52 
continues to read as follows:

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

Subpart--RR--Tennessee

    2. Section 52.2239 is amended by adding paragraph (c)(167) to read 
as follows:


Sec. 52.2239  Original Identification of Plan Section.

* * * * *
    (c) * * *
    (167) The adoption of the credible evidence regulations, which were 
submitted on November 16, 1994, into the Nashville/Davidson County 
portion of the Tennessee SIP.
    (i) Incorporation by reference. Section 10.56.290 Measurement and 
Reporting of Emissions effective on October 6, 1994.
    (ii) Other material. None.
    3. Section 52.2220(c) is amended by adding the entry for section 
1200-3-10-.04 to read as follows:


Sec. 52.2220  Identification of plan.

* * * * *
    (c) EPA approved regulations.

                                       EPA-Approved Tennessee Regulations
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                                                                                               Federal Register
         State citation              Title/subject       Adoption date     EPA approval date        notice
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*                  *                  *                  *                  *                  *
                                                        *
Section 1200-3-10-04............  Sampling Recording  09/12/94..........  January 19, 2000..  [Insert citation
                                   and Reporting                                               of this Federal
                                   Required For                                                Register Notice
                                   Major Stationary                                            when published.]
                                   Sources.
 
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[FR Doc. 00-964 Filed 1-18-00; 8:45 am]
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