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.

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.

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 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 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

Part 52 of chapter I, title 40, Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

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

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

Subpart—RR—Tennessee

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

3. Section 52.2220(c) is amended by adding the entry for section 1200-3-10-.04 to read as follows: