[Federal Register Volume 60, Number 171 (Tuesday, September 5, 1995)]
[Rules and Regulations]
[Pages 46021-46024]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21875]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[AK-8-1-6733a; FRL-5286-8]


Approval and Promulgation of Implementation Plans: Alaska

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) approves the State 
of Alaska Implementation Plan (SIP) revision submitted by the State of 
Alaska for the purpose of establishing a Small Business Stationary 
Source Technical and Environmental Compliance Assistance Program. The 
implementation plan was submitted by the State to satisfy the Federal 
mandate of the Clean Air Act (CAA or Act), to ensure that small 
businesses have access to the technical assistance and regulatory 
information necessary to comply with the CAA. The rationale for the 
approval is set forth in this document; additional information is 
available at the address indicated below.

DATES: This final rule is effective on November 6, 1995 unless notice 
is received by October 5, 1995, that someone wishes to submit adverse 
or critical comments. If the effective date is delayed, timely notice 
will be published in the Federal Register.

ADDRESSES: Written comments should be addressed to: Montel Livingston, 
SIP Manager, Air and Radiation Branch (AT-082), EPA, 1200 Sixth Avenue, 
Seattle, WA 98101.
    Documents which are incorporated by reference are available for 
public inspection at the Air and Radiation Docket and Information 
Center, Environmental Protection Agency, 401 M Street, SW, Washington, 
D.C. 20460. Copies of material submitted to EPA may be examined during 
normal business hours at the following locations: EPA, Region 10, Air & 
Radiation Branch, 1200 Sixth Avenue (AT-082), Seattle, WA 98101, and 
Alaska Department of Conservation, 410 Willoughby Avenue, Suite 105, 
Juneau, AK 99801-1795.

FOR FURTHER INFORMATION CONTACT: David J. Dellarco, Air and Radiation 
Branch (AT-082), EPA, 1200 Sixth Avenue, Seattle, WA 98101, (206) 553-
4978.

SUPPLEMENTARY INFORMATION:

I. Background

    Implementation of the provisions of the Clean Air Act (CAA), as 
amended in 1990, will require regulation of many small businesses so 
that areas may attain and maintain the national ambient air quality 
standards (NAAQS) and reduce the emission of air toxics. Small 
businesses frequently lack the technical expertise and financial 
resources necessary to evaluate such regulations and to determine the 
appropriate mechanisms for compliance. In anticipation of the impact of 
these requirements on small businesses, the CAA requires that States 
adopt a Small Business Stationary Source Technical and Environmental 
Compliance Assistance Program (PROGRAM), and submit this PROGRAM as a 
revision to the Federally approved SIP. In addition, the CAA directs 
the Environmental Protection Agency (EPA) to oversee these small 
business assistance programs and report to Congress on their 
implementation. The requirements for establishing a PROGRAM are set out 
in Section 507 of Title V of the CAA. In January 1992, EPA issued 
Guidelines for the Implementation of Section 507 of the 1990 Clean Air 
Act Amendments, in order to delineate the Federal and State roles in 
meeting the new statutory provisions and as a tool to provide further 
guidance to the States on submitting acceptable SIP revisions.
    The State of Alaska has submitted a SIP revision to EPA in order to 
satisfy the requirements of Section 507. In order to gain full 
approval, the State 

[[Page 46022]]
submittal must provide for each of the following PROGRAM elements: (1) 
the establishment of a Small Business Assistance Program (SBAP) to 
provide technical and compliance assistance to small businesses; (2) 
the establishment of a State Small Business Ombudsman to represent the 
interests of small businesses in the regulatory process; and (3) the 
creation of a Compliance Advisory Panel to determine and report on the 
overall effectiveness of the SBAP.

II. Analysis

1. Small Business Assistance Program

    Section 507(a) sets forth six requirements1 that the State 
must meet to have an approvable SBAP. The first requirement is to 
establish adequate mechanisms for developing, collecting and 
coordinating information concerning compliance methods and technologies 
for small business stationary sources, and programs to encourage lawful 
cooperation among such sources and other persons to further compliance 
with the Act. The State of Alaska has met this requirement by 
developing its SBAP with both proactive and reactive components. The 
proactive element will use outreach techniques to develop and 
distribute compliance and technical information to small businesses, 
including details on their rights and obligations, alternative control 
technologies, and compliance methods. These techniques will include 
direct mail, public service announcements, and meetings with small 
businesses. The reactive element will use a telephone hot line to 
receive questions from small businesses. In addition, the SBAP will 
maintain a clearinghouse of information, in the form of a library of 
documents and computer files, relevant to the compliance alternatives 
available to small businesses.

    \1\A seventh requirement of Section 507(a), establishment of an 
Ombudsman office, is discussed in the next section.
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    The second requirement is to establish adequate mechanisms for 
assisting small business stationary sources with pollution prevention 
and accidental release detection and prevention, including providing 
information concerning alternative technologies, process changes, 
products and methods of operation that help reduce air pollution. The 
State has met this requirement by planning to provide small businesses 
with information and assistance on accidental release prevention and 
detection. This information may include requirements under the 
accidental release provisions of the CAA, requirements of the Superfund 
Amendments and Reauthorization Act title III, Occupational Safety and 
Health administration process safety standards, as well as general 
information on prevention practices and technologies. The State of 
Alaska's non-regulatory pollution prevention program will provide the 
SBAP with direct pollution prevention support and expertise. The 
pollution prevention office will utilize both State and regional 
pollution prevention resources to provide direct pollution prevention 
technical assistance to small businesses.
    The third requirement is to develop a compliance and technical 
assistance program for small business stationary sources which assists 
small businesses in determining applicable requirements and in 
receiving permits under the Act in a timely and efficient manner. The 
State has met this requirement by planning to develop its SBAP with a 
main emphasis on assisting small businesses in obtaining any necessary 
air quality operating permits. The SBAP plans to use workshops to guide 
small businesses through the air quality operating permit application 
process. In addition, the SBAP will develop source specific outreach 
materials on the responsibilities of small businesses established 
through existing and future CAA requirements.
    The fourth requirement is to develop adequate mechanisms to assure 
that small business stationary sources receive notice of their rights 
under the Act in such manner and form as to assure reasonably adequate 
time for such sources to evaluate compliance methods and any relevant 
or applicable proposed or final regulations or standards issued under 
the Act. The State has met this requirement by planning to use direct 
mailing, public service announcements, and meetings with small 
businesses to notify them of their rights and obligations under air 
quality requirements in a timely manner.
    The fifth requirement is to develop adequate mechanisms for 
informing small business stationary sources of their obligations under 
the Act, including mechanisms for referring such sources to qualified 
auditors or, at the option of the State, for providing audits of the 
operations of such sources to determine compliance with the Act. The 
State has met this requirement by planning to establish a voluntary on-
site evaluation program to help small businesses determine if their 
operations comply with the Act.
    The sixth requirement is to develop procedures for consideration of 
requests from small business stationary sources for modification of (A) 
any work practice or technological method of compliance, or (B) the 
schedule of milestones for implementing such work practice or method of 
compliance preceding any applicable compliance date, based on the 
technological and financial capability of any such small business 
stationary source. The State has met this requirement by planning to 
develop procedures, by regulation, to respond to requests from small 
businesses for work practice modifications. The State of Alaska will 
develop these procedures concurrently with its revisions to Alaska's 
air quality regulations, and follow the requirements of Alaska's 
Administrative Procedure Act. The regulations that address requirements 
for work practice modification requests will be submitted by Alaska 
with its Title V Operating Permits Program, and become effective upon 
EPA approval of Alaska's Title V Operating Permits Program.

2. Ombudsman

    Section 507(a)(3) requires the designation of a State office to 
serve as the Ombudsman for small business stationary sources. The State 
has met this requirement by establishing the position of Small Business 
Advocate, which will promote the rights and concerns of small 
businesses. The Small Business Advocate is separate from the SBAP and 
independent from Alaska's Air Quality Management Program.

3. Compliance Advisory Panel

    Section 507(e) requires the State to establish a Compliance 
Advisory Panel (CAP) that must include two members selected by the 
Governor who are not owners or representatives of owners of small 
businesses; four members selected by the State legislature who are 
owners, or represent owners, of small businesses; and one member 
selected by the head of the agency in charge of the Air Pollution 
Permit Program. The State has met this requirement by appointing its 
CAP in accordance with the above requirements.
    In addition to establishing the minimum membership of the CAP the 
CAA delineates four responsibilities of the Panel: (1) to render 
advisory opinions concerning the effectiveness of the SBAP, 
difficulties encountered and the degree and severity of enforcement 
actions; (2) to periodically report to EPA concerning the SBAP's 
adherence to the principles of the Paperwork Reduction Act, the Equal 
Access to Justice Act, and the Regulatory Flexibility Act2; (3) to 


[[Page 46023]]
review and assure that information for small business stationary 
sources is easily understandable; and (4) to develop and disseminate 
the reports and advisory opinions made through the SBAP. The State has 
met these requirements by directing its CAP to meet the above areas of 
responsibility.

    \2\Section 507(e)(1)(B) requires the CAP to report on the 
compliance of the SBAP with these three Federal statutes. However, 
since State agencies are not required to comply with them, EPA 
believes that the State PROGRAM must merely require the CAP to 
report on whether the SBAP is adhering to the general principles of 
these Federal statutes.
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4. Eligibility

    Section 507(c)(1) of the CAA defines the term ``small business 
stationary source'' as a stationary source that:
    (A) Is owned or operated by a person who employs 100 or fewer 
individuals;
    (B) Is a small business concern as defined in the Small Business 
Act;
    (C) Is not a major stationary source;
    (D) Does not emit 50 tons per year (tpy) or more of any regulated 
pollutant; and
    (E) Emits less than 75 tpy of all regulated pollutants.
    In addition, under Section 507(c)(2) of the CAA a State may, upon 
petition by a source and after notice and opportunity for comment, 
include as a ``small business stationary source'' any source that does 
not meet the provisions of Sections 507(c)(1) (C), (D), and (E) of the 
CAA but does not emit more than 100 tpy of all regulated pollutants.
    Under Alaska's PROGRAM, a facility is a ``small business facility'' 
and thus eligible for assistance under the PROGRAM if the facility:
    (A) Is owned or operated by a person who employs 100 or fewer 
individuals;
    (B) Is a small business concern as defined in 15 U.S.C. 631 (Small 
Business Act); and
    (C) Emits less than 100 tpy of regulated air contaminants. Alaska 
Statutes 46.14.990(22). Alaska has therefore expanded PROGRAM 
eligibility by statute to include all sources that could apply for 
eligibility on a case-by-case basis under Section 507(c)(2) of the CAA 
after notice and opportunity for comment. Based on assurances from the 
State, EPA believes that Alaska's definition of eligible sources will 
not interfere with the State's obligation to provide assistance to 
``small business stationary sources'' as defined under Section 
507(c)(1) of the CAA and that it is therefore consistent with Section 
507(c) of the Clean Air Act.
    In addition, the State of Alaska has provided, as required by 
Section 507(3) of the CAA, for exclusion from the small business 
stationary source definition, after consultation with the EPA and the 
Small Business Administration Administrator and after providing notice 
and opportunity for public comment, of any category or subcategory of 
sources that the State determines to have sufficient technical and 
financial capabilities to meet the requirements of the CAA. The State 
of Alaska has also established a mechanism based on direct assistance 
from the Small Business Advocate for ascertaining the eligibility of a 
source to receive assistance under the PROGRAM, including an evaluation 
of a source's eligibility under Section 507(c) of the CAA.

III. This Action

    In this action, EPA approves the SIP revision submitted by the 
State of Alaska.
    The State of Alaska has submitted a SIP revision implementing each 
of the PROGRAM elements required by Section 507 of the CAA. At this 
time, the SBAP, Small Business Advocate, and CAP are in place.

IV. Administrative Review

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    By this action, the EPA is approving a State program created for 
the purpose of assisting small businesses in complying with existing 
statutory and regulatory requirements. The program being approved in 
this action does not impose any new regulatory burden on small 
businesses; it is a program under which small businesses may elect to 
take advantage of assistance provided by the state. Therefore, because 
the EPA's approval of this program does not impose any new regulatory 
requirements on small businesses, I certify that it does not have a 
significant economic impact on any small business entities affected.
    SIP approvals under section 110 and subchapter I, Part D of the CAA 
do not create any new requirements, but simply approve requirements 
that the state is already imposing. Therefore, because the federal SIP-
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the federal-state relationship under the CAA, 
preparation of a regulatory flexibility analysis would constitute 
federal inquiry into the economic reasonableness of state action. The 
CAA forbids EPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. U.S.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 
U.S.C. 7410(a)(2).
    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 
costs to State, local, or tribal governments in the aggregate; or to 
the 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 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 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.
    The EPA has reviewed this request for revision of the Federally-
approved SIP for conformance with the provisions of the 1990 Clean Air 
Act Amendments enacted on November 15, 1990. The EPA has determined 
that this action conforms with those requirements.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.
    This action has been classified as a Table 3 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989 (54 FR 2214-2225), as revised by a July 10, 1995 
memorandum from Mary Nichols, Assistant Administrator for Air and 
Radiation. The Office of Management and Budget (OMB) has exempted this 
regulatory 

[[Page 46024]]
action from Executive Order 12866 review.
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse comments. However, in a separate document in this Federal 
Register publication, the EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed. This action will be 
effective November 6, 1995 unless, by October 5, 1995, adverse or 
critical comments are received.
    If the EPA receives such comments, this action will be withdrawn 
before the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. The EPA will not institute a second comment period on 
this action. Any parties interested in commenting on this action should 
do so at this time. If no such comments are received, the public is 
advised that this action will be effective November 6, 1995.
    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 November 6, 1995. 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), 42 U.S.C. 7607(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Small Business Assistance Program.

    Note: Incorporation by reference of the Implementation Plan for 
the State of Alaska was approved by the Director of the Office of 
Federal Register on July 1, 1982.

    Dated: August 15, 1995.
Jane S. Moore,
Acting Regional Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:
    1. The authority citation for part 52 continues to read as follows:

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

Subpart C--Alaska

    2. Section 52.70 is amended by adding paragraph (c) (20) to read as 
follows:


Sec. 52.70  Identification of plan.

* * * * *
    (c) * * *
    (20) On April 18, 1994, the Commissioner of the Alaska Department 
of Environmental Conservation (ADEC) submitted ``The Alaska Air Quality 
Small Business Assistance Program State Air Quality Control Plan 
Amendment,'' adopted April 8, 1994, as a revision to the Alaska SIP.
    (i) Incorporation by reference.
    (A) Letter dated April 8, 1994, from the Commissioner of ADEC to 
the Regional Administrator of EPA, submitting ``The Alaska Air Quality 
Small Business Assistance Program State Air Quality Control Plan 
Amendment'' to EPA; the Alaska Air Quality Small Business Assistance 
Program State Air Quality Control Plan Amendment (which includes 
Appendix A the Alaska Statutes Title 46, Chapter 14, Article 3), dated 
April 1994, and adopted April 8, 1994.
    (ii) Additional information.
    (A) Letter dated July 24, 1995, from Alaska Department of 
Environmental Conservation, submitting information necessary for 
approval of the SBAP revision to EPA; the July 1995 SBAP Update, 
Responses to EPA Comments, and the Air Quality/Small Business 
Assistance Compliance Advisory Panel Board Information.
* * * * *
[FR Doc. 95-21875 Filed 9-1-95; 8:45 am]
BILLING CODE 6560-50-P