Approval and Promulgation of Implementation Plans Tennessee: Approval of Revisions to Knox County portion of Tennessee Implementation Plan

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TN-105-1-9949a; TN-209-1-9950a; FRL-6469-4]

Approval and Promulgation of Implementation Plans Tennessee:

Approval of Revisions to Knox County portion of Tennessee

Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving revisions to the Knox County portion of the

Tennessee State Implementation Plan (SIP) submitted by the State of

Tennessee Department of Environment and Conservation on February 26,

1993, and June 23, 1998. The revisions add clarification to the section

regarding exceptions to prohibition with a permit in the Open Burning

rule by replacing the existing language in Section 16.3 with new

language. Private residences and farming operations are defined in more

detail as purposes for which open burning is allowed, and church

congregational property is being added to excepted purposes. In

addition, an open burning exemption is being removed from the permits

chapter.

DATES: This direct final rule is effective January 4, 2000 without

further notice, unless EPA receives adverse comment by December 6,

1999. 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 Steven M. Scofield at

the EPA, Region 4 Air Planning Branch, 61 Forsyth Street, SW, Atlanta,

Georgia 30303.

Copies of the State submittals are available at the following

addresses for inspection during normal business hours:

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

[[Page 60347]]

Forsyth Street, SW, Atlanta, Georgia 30303. Steven M. Scofield, 404/

562-9034.

Division of Air Pollution Control, Tennessee Department of Environment

and Conservation, L & C Annex, 9th Floor, 401 Church Street, Nashville,

Tennessee 37243-1531. 615/532-0554.

Knox County Department of Air Pollution Control, 400 West Main Avenue,

Suite 339, City-County Building, Knoxville, Tennessee 37902-2405. 423/

215-2488.

FOR FURTHER INFORMATION CONTACT: Steven M. Scofield at 404/562-9034.

SUPPLEMENTARY INFORMATION:

I. Background

On February 26, 1993, the State of Tennessee, through the

Department of Environment and Conservation, submitted a revision

incorporating Section 16.3.A-C of the Open Burning rule into the Knox

County portion of the SIP. This section identifies exceptions to the

prohibitions to open burning in Knox County. The revisions add

clarification to the section regarding exceptions to prohibition with a

permit in the Open Burning rule by replacing the existing language in

Section 16.3 with new language to add exceptions for land clearing of

brush wood (of which no part may exceed three (3) inches in diameter)

grown on that land where the land is being maintained for established

private residences, farming operations and established church

congregational property.

On June 23, 1998, the State of Tennessee, through the Department of

Environment and Conservation, submitted a revision incorporating a

revision to section 25.6.E by removing the permit exemption for

operations regulated by section 16 and reserving section 25.6.E.

II. Final Action

The EPA is approving the revisions to the open burning and permits

regulations because they are consistent with EPA policy and the Clean

Air Act (CAA).

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 January 4, 2000

without further notice unless the Agency receives adverse comments by

December 6, 1999.

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 January 4, 2000 and no

further action will be taken on the proposed rule.

III. Administrative Requirements

A. Executive Order 12866

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

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and Review.''

B. Executive Orders on Federalism

Under E.O. 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, E.O. 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 E.O. 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 E.O.

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 E.O. 13045 because it does not involve

decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

Under E.O. 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, E.O. 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

[[Page 60348]]

requirements of section 3(b) of E.O. 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 January 4, 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 6, 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 citation for part 52 continues to read as follows:

Authority: 42.U.S.C. 7401-7671q.

Subpart RR--Tennessee

2. Section 52.2239 is amended by adding paragraph (c)(128) to read

as follows:

Sec. 52.2239 Original Identification of plan section.

* * * * *

(c) * * *

(128) Revisions to Chapter 16, ``Open Burning'', of the Knox County

portion of the Tennessee State Implementation Plan were submitted by

the Tennessee Department of Environment and Conservation on February

26, 1993. Revisions to Chapter 25, ``Permits'', of the Knox County

portion of the Tennessee State Implementation Plan were submitted by

the Tennessee Department of Environment and Conservation on June 23,

1998.

(i) Incorporation by reference.

(A) Section 16.3 Exceptions to Prohibition--With Permit, adopted on

January 13, 1993.

(B) Section 25.6 Exemptions, paragraph E, adopted on June 10, 1998.

(ii) Other material. None.

[FR Doc. 99-28879 Filed 11-4-99; 8:45 am]

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