[Federal Register Volume 61, Number 182 (Wednesday, September 18, 1996)]
[Proposed Rules]
[Pages 49091-49103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23785]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 61, 63 and 70

[AD-FRL-5612-1]


Clean Air Act Proposed Interim Approval, Operating Permits 
Program; State of Alaska and Clean Air Act Proposed Approval in Part 
and Proposed Disapproval in Part, Section 112(l) Program Submittal; 
State of Alaska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed interim approval, and proposed approval in part and 
proposed disapproval in part.

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SUMMARY: EPA proposes interim approval of the operating permits program 
submitted by the Alaska Department of Environmental Conservation for 
the purpose of complying with Federal requirements for an approvable 
State program to issue operating permits to all major stationary 
sources, and to certain other sources.
    EPA also proposes approval in part and disapproval in part of the 
program submitted by the Alaska Department of Environmental 
Conservation for the purpose of implementing and enforcing the 
hazardous air pollutant requirements under section 112 of the Act.

DATES: Comments on this proposed action must be received in writing by 
October 18, 1996.

ADDRESSES: Comments should be addressed to David C. Bray, Office of Air 
Quality, OAQ-107, U.S. Environmental Protection Agency, 1200 Sixth 
Avenue, Seattle, Washington 98101. Copies of the State's submittal and 
other supporting information used in developing this action are 
available for inspection during normal business hours at the following 
location: U.S. Environmental Protection Agency, Region 10, Office of 
Air Quality, 1200 Sixth Avenue, Seattle, Washington.

FOR FURTHER INFORMATION CONTACT: David C. Bray, Office of Air Quality, 
OAQ-107, U.S. Environmental Protection Agency, 1200 Sixth Avenue, 
Seattle, Washington 98101; telephone (206) 553-4253.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Title V Background

    As required under title V of the 1990 Clean Air Act Amendments 
(sections 501-507 of the Clean Air Act (``the Act'')), EPA has 
promulgated rules which define the minimum elements of an approvable 
State operating permits program and the corresponding standards and 
procedures by which EPA will approve, oversee, and withdraw approval of 
State operating permits programs (see 57 FR 32250 (July 21, 1992)). 
These rules are codified at 40 Code of Federal Regulations (CFR) part 
70. Title V requires States to develop, and submit to EPA, programs for 
issuing these operating permits to all major stationary sources and to 
certain other sources.
    The Act requires that States develop and submit these programs to 
EPA by November 15, 1993, and that EPA act to approve or disapprove 
each program within one year after receiving the submittal. EPA's 
program review occurs pursuant to section 502 of the Act and the part 
70 regulations, which together outline criteria for approval or 
disapproval. Where a program substantially, but not fully, meets the 
requirements of part 70, EPA may grant the program interim approval for 
a period of up to two years. If EPA has not fully approved a program by 
two years after the November 15, 1993 date, or by the end of an interim 
program, it must establish and implement a Federal program.
    EPA must apply sanctions to a State 18 months after EPA disapproves 
the program. In addition, discretionary sanctions may be applied any 
time during the 18-month period following the date required for program 
submittal or program revision. If the State has no approved program two 
years after the date required for submission of the program, EPA will 
impose additional sanctions, where applicable, and EPA must promulgate, 
administer, and enforce a Federal permits program for the State. EPA 
has the authority to collect reasonable fees from the permittees to 
cover the costs of administering the program.

B. Section 112 Background

    Section 112(l) of the Act established new, more stringent 
requirements for a State or local agency that wishes to implement and 
enforce a hazardous air pollutant program pursuant to section 112 of 
the Act. Prior to November 15, 1990, delegation of NESHAP regulations 
to the State and local agencies could occur without formal rulemaking 
by EPA. However, the new section 112(l) of the Act requires EPA to 
approve State and local hazardous air pollutant rules and programs 
under section 112 through formal notice and comment rulemaking. Now 
State and local air agencies that wish to implement and enforce a 
Federally-approved hazardous air pollutant program must make a showing 
to EPA that they have adequate authorities and resources. Approval is

[[Page 49092]]

granted by EPA through the authority contained in section 112(l), and 
implemented through the Federal rule found in 40 CFR part 63, subpart E 
if the Agency finds that: (1) The State or local program or rule is 
``no less stringent'' than the corresponding Federal rule or program, 
(2) adequate authority and resources exist to implement the State or 
local program or rule, (3) the schedule for implementation and 
compliance is sufficiently expeditious, and (4) the State or local 
program or rule is otherwise in compliance with Federal guidance.

II. Proposed Action on Title V Submittal and Implications

A. Analysis of State Title V Submittal

1. Support Materials
    On May 31, 1995, the Alaska Department of Environmental 
Conservation (referred to herein as ``ADEC,'' ``the Department,'' 
``Alaska'' or ``the State'') submitted a title V program for EPA review 
and approval. EPA notified the State in writing on July 13, 1995, that 
the submittal was complete. The State submitted additional information 
to EPA to supplement its May 31, 1995 submittal on August 16, 1995, 
February 6, 1996, February 27, 1996, July 5, 1996, and August 2, 1996. 
EPA considers these supplemental submittals to be a material change to 
ADEC's May 31, 1995 program submittal and therefore extends its 
official review period by 8 months to January 31, 1997.
    Section II of the Alaska submittal addresses the requirement of 40 
CFR part 70.4(b)(1) by describing how the State intends to carry out 
its responsibilities under the part 70 regulations. An implementation 
agreement is currently being developed between ADEC and EPA. EPA has 
deemed the program description to be sufficient for meeting the 
requirement of 40 CFR 70.4(b)(1).
    Section IV of the Alaska submittal includes a legal opinion from 
the Attorney General of Alaska addressing the thirteen program elements 
set forth in 40 CFR part 70 that are specifically required by title V 
and 40 CFR part 70, as well as several additional program elements. 
With the exception of the proposed interim approval items discussed 
below, this opinion letter demonstrates adequate legal authority to 
implement all aspects of the title V operating permits program in 
Alaska.
    Alaska has submitted draft copies of its permit application and 
permit forms, as required by 40 CFR 70.4(b)(4). Final versions of these 
forms will need to be available in time to implement the program.
    In summary, EPA believes that Alaska's title V operating permits 
program substantially meets the requirements of 40 CFR part 70, 
sections 70.2 and 70.3 for applicability; section 70.4, 70.5, and 70.6 
for permit content, including operational flexibility; section 70.7 for 
public participation and minor permit modifications; section 70.8 for 
permit review by EPA; section 70.5 for criteria which define 
insignificant activities; section 70.11 for requirements for 
enforcement authority; and section 70.5 for complete application forms. 
The issues that EPA proposes the State must address in order to obtain 
full approval are discussed below under ``Options for Program Approval 
and Implications.''
    The full program submittal and the Technical Support Document (TSD) 
are contained in the docket at the address noted above and provide more 
detailed information on the State's program.
2. Regulations and Program Implementation
    a. Regulations. The Alaska title V operating permits program is 
authorized by the Air Quality Control Act, Title 46, Chapter 14 of the 
Alaska Statutes. The State of Alaska revised its Air Quality Control 
Regulations (18 Alaska Administrative Code (AAC) 50) to implement the 
requirements of 40 CFR part 70 and the Alaska Air Quality Control Act. 
These revisions were adopted on May 17, 1995 and, together with the 
enabling legislation, become effective upon EPA's interim approval of 
Alaska's title V operating permit program. Additional revisions to 
these rules were adopted on February 22, 1996, April 9, 1996, and July 
3, 1996. These rules and statutes, as well as other rules and statutes 
governing State permitting and administrative actions, were submitted 
by Alaska with evidence of procedurally correct adoption as required by 
40 CFR 70.4(b)(2).
    Title 18, chapter 50 of Alaska's regulations contain requirements 
pertaining to both title V and non-title V sources. Therefore, this 
notice proposes to approve certain regulations within 18 AAC 50 as part 
of Alaska's title V program. The TSD identifies the title V-related 
regulations acted upon in this rulemaking. Other portions of 18 AAC 50 
have been submitted by the State for EPA approval under section 112(l) 
of the Act, and the TSD also identifies which section 112-related 
regulations are acted upon in this rulemaking. Portions of 18 AAC 50 
have been submitted by the State as revisions to the Alaska state 
implementation plan (SIP) and will be approved or disapproved as part 
of the Alaska SIP in a separate rulemaking. Finally, portions of 18 AAC 
50 have been submitted to EPA in support of a request for delegation 
under section 111(b) of the Act and will be acted upon later pursuant 
to that section.
    b. Scope of proposed action. ADEC has requested approval to 
implement its title V program in all geographic regions of the State 
except within ``Indian Country,'' as defined in 18 U.S.C. section 1151. 
Therefore, EPA proposes that interim approval of the Alaska operating 
permits program not extend to sources located in Indian Country in 
Alaska. Because the extent of Indian Country is currently unknown and 
in litigation, the exact boundaries of Indian Country have not been 
established. At present, the lands acknowledged to be Indian Country 
are the Annette Island Reserve, and trust lands identified as Indian 
Country by the United States in Klawock, Kake, and Angoon. By proposing 
to grant interim approval to Alaska's title V operating permits program 
throughout the State except within Indian Country, EPA does not intend 
to affect the rights of Federally-recognized Indian tribes in Alaska, 
nor does it intend to limit existing rights of the State of Alaska. 
Title V sources located within Indian Country in Alaska will be subject 
to the Federal operating permits program, promulgated at 40 CFR part 
71, see 61 FR 34202 (July 1, 1996), or subject to the operating permit 
program of any Tribe approved after issuance of regulations under 
section 301(d) of the Clean Air Act authorizing EPA to treat Tribes in 
the same manner as States for appropriate Clean Air Act provisions, see 
59 FR 43956 (August 25, 1994) (proposed rules implementing section 
301(d)).
    c. Program implementation. There are several areas where the Alaska 
program does not directly address certain requirements of part 70, but 
EPA believes either that (1) the Alaska program, as a whole, satisfies 
the requirements of part 70 in that particular respect or (2) no 
changes are currently required to the Alaska program to comply with 
part 70, but changes will likely be required some time in the future.
    i. Application submittal. Part 70 defines a ``timely application'' 
for sources applying for a title V permit for the first time as an 
application that is submitted within 12 months after the source becomes 
subject to the program or on or before such time as the permitting 
authority may establish. See 40 CFR 70.5(a)(1)(i). For sources required 
to meet the preconstruction requirements of section 112(g) of the Act 
or required to have a permit under the

[[Page 49093]]

preconstruction review program approved into the SIP under part C or 
part D of the Act, a ``timely application'' is one that is submitted 
within 12 months after the source commences operation or such earlier 
date set by the permitting authority. 40 CFR 70.5(a)(1)(ii).
    The Alaska program requires a source to submit an application 
within 12 months of becoming subject to the title V program or 60 days 
before beginning construction of a source if the facility containing 
the source is a new source that is not required to obtain a 
construction permit under AS 46.14.130(a). See AS 46.14.150(a). 
However, the Alaska program does not specifically address new sources 
under section 112(g) or parts C or D of the Act. EPA understands that 
the Alaska program would consider such sources as ``becoming subject to 
the title V program'' at the time the source commences operation, 
thereby making the Alaska program consistent with 40 CFR 
70.5(a)(1)(ii).
    ii. Applicable requirements. The Alaska program does not use the 
term ``applicable requirements'' and therefore does not contain a 
concise definition of the Federally-enforceable requirements which must 
be contained in a title V permit. Rather, the Alaska program simply 
indicates that a title V permit must contain each ``air quality control 
requirement,'' which is defined in 18 AAC 50.990 as an obligation 
created by AS 46.14, 18 AAC 50 or a term or condition of a 
preconstruction permit issued by ADEC. In an attempt to ensure that all 
EPA-promulgated requirements are covered, ADEC has adopted by reference 
into 18 AAC 50.040 Federal regulations that currently apply to sources 
in Alaska. ADEC has not adopted those existing EPA-promulgated 
requirements for which there are currently no subject sources in 
Alaska. However, as described in section B.1.iii. below, ADEC failed to 
adopt several NESHAP that currently apply to Title V sources in Alaska. 
If at some future time, sources in Alaska become subject to these 
existing Federal regulations, ADEC will need to expeditiously update 
its incorporation by reference in order to adequately implement its 
title V program. In addition, as new EPA regulations are promulgated 
which apply to sources in Alaska, ADEC is expected to expeditiously 
incorporate these new regulations into 18 AAC 50.040.1
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    \1\ As discussed in Sections II.B.1 below, additional issues 
with Alaska's treatment of ``applicable requirements'' are listed as 
proposed interim approval issues.
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    iii. Applicable requirements in EPA-issued PSD permits. Part 70 
requires all ``applicable requirements,'' as defined in 40 CFR 70.2, to 
be included in title V permit applications and permits. As stated 
above, the Alaska program does not use the term ``applicable 
requirements'', but instead requires that a title V permit contain each 
``air quality control requirement,'' which is defined in 18 AAC 50.990 
as an obligation created by AS 46.14, 18 AAC 50 or a term or condition 
of a preconstruction permit issued by ADEC. However, Part 70 defines 
``applicable requirement'' as including the terms and conditions of any 
preconstruction permits issued pursuant to regulations approved or 
promulgated through rulemaking under title I of the Act, including 
parts C or D of the Act. See 40 CFR 70.2. Prior to July 5, 1983, EPA 
issued permits to construct to new and modified major stationary 
sources in Alaska under the PSD permitting regulations. See 40 CFR 
52.96 as it existed prior to July 5, 1983. These permits are still in 
effect and contain Federally-enforceable requirements for sources 
subject to those permits. Since Alaska's regulations incorporate by 
reference 40 CFR 52.96 as it applies to title V sources, and EPA 
permits issued pursuant to 40 CFR 52.96 are considered to be Federally-
enforceable parts of the Alaska SIP, such permits are considered to be 
``air quality control requirements'' under the Alaska rules.
    iv. Inclusion of fugitive emissions. EPA's regulations require that 
fugitive emissions be included in the permit and permit application in 
the same manner as stationary source emissions whether or not the 
source category in question is included in the list of sources for 
which fugitives must be included in determining a source's potential to 
emit. See 40 CFR 70.3(d). Alaska's regulations do not include a similar 
requirement, but rather, only contain the provisions regarding the 
inclusion of fugitives when determining a source's potential to emit. 
However, the Alaska rules do not include any provision which would 
explicitly allow a permit to exclude fugitive emissions once a source 
has been determined to require a permit. Accordingly, EPA believes that 
the Alaska program complies with the requirements of EPA's regulations. 
EPA is, therefore, proposing to approve this portion of the Alaska 
program based on an understanding that Alaska will implement its 
program consistently with the requirements of 40 CFR 70.3(d).
    v. Changes provided for in the permit. Part 70 requires a permit to 
contain a provision stating that no permit revision shall be required, 
under any approved economic incentives, marketable permits, emissions 
trading and other similar programs or processes for changes that are 
provided for in the permit. See 40 CFR 70.6(a)(8). Similarly, part 70 
requires that, if an applicable implementation plan allows a 
determination of an alternative emission limit, equivalent to that 
contained in the plan, to be made in the permit issuance, renewal or 
significant modification process and the State elects to use such 
process, any permit containing such an equivalency determination shall 
contain provisions to ensure that any resulting emissions limit has 
been demonstrated to be quantifiable, accountable, enforceable and 
based on replicable procedures. See 40 CFR 70.6(a)(1)(iii). The Alaska 
program does not contain corresponding requirements for permit content 
because there are currently no such programs in the Alaska SIP. EPA is 
proposing to approve this portion of the Alaska program based on an 
understanding that, should any such program be added to the Alaska SIP 
in the future, the provisions required by 40 CFR 70.6(a)(8) and 40 CFR 
70.6(a)(1)(iii), as applicable, will be added to Alaska's title V rules 
at the same time.
    vi. Administrative amendments. Part 70 authorizes States to allow 
certain ministerial types of changes to title V permits to be made by 
administrative amendment, which does not require EPA or public review 
or participation. See 40 CFR 70.7(d). That section contains a list of 
five types of changes which may be made by administrative amendment, 
and authorizes EPA to approve as appropriate for incorporation by 
administrative amendment other types of changes which are similar to 
those specifically enumerated in 40 CFR 70.7(d)(1). See 40 CFR 
70.7(d)(1)(vi). The Alaska program authorizes three types of changes to 
be made by administrative amendment in addition to the five listed in 
part 70. See 18 AAC 50.370(a)(4), (5) and (6). As discussed below in 
section II.B.1., EPA believes that one of the three additional changes 
is not approvable and must be revised as a condition of full approval. 
EPA proposes to approve the two other types of changes, however, as 
appropriate for administrative amendment with the following 
understandings.
    The Alaska program allows a change in assessable emissions to be 
made by administrative amendment, provided the change does not allow 
emissions to exceed emissions allowable under the permit. See 18 AAC 
50.370(a)(4). ``Assessable emissions'' is defined as the lesser of the 
annual rate of emissions of

[[Page 49094]]

each air contaminant authorized by the facility's title V permit or the 
projected annual rate of emissions of each air contaminant based on 
previous actual annual emissions if the facility can make a certain 
showing to ADEC. See AS 46.14.240(h)(1). EPA interprets Alaska's 
administrative amendment procedures as allowing a change of assessable 
emissions only if the facility's assessable emissions are based on the 
facility's projected annual rate of emissions, and the change does not 
increase assessable emissions above the emissions allowable under the 
permit.
    Finally, Alaska's program allows a source to convert an approval to 
operate under a general permit to a facility-specific permit with 
identical terms and conditions and the same expiration date. See 18 AAC 
50.370(a)(6). According to Alaska's submittal, the purpose of allowing 
conversion from a general permit to a facility-specific permit is so 
that the permit can then be modified, by means other than 
administrative amendment, without affecting other facilities operating 
under the general operating permit. By the express terms of 18 AAC 
50.370(a)(6), such a change is a change in the type of permit and not 
in the permit terms themselves. EPA therefore believes that this type 
of change is sufficiently similar to the other truly ``administrative'' 
types of changes specified in part 70 as appropriate for administrative 
amendment.
    vii. Affected State review. Part 70 requires permit programs to 
contain provisions for notifying ``affected States'' of title V 
permitting actions. See, e.g., 40 CFR 70.8. ``Affected State'' is 
defined as a State (1) whose air quality may be affected and that is 
contiguous to the State in which the permit activity is occurring or 
(2) that is within 50 miles of the permitted source. 40 CFR 70.2. There 
are no ``affected States'' vis-a-vis Alaska and the Alaska title V 
program therefore does not contain provisions requiring the 
notification of affected States.
    viii. Option to obtain permit. Part 70 requires States to allow any 
source exempt under 40 CFR 70.3(b) to opt to obtain a part 70 permit. 
See 40 CFR 70.3(b)(3). The Alaska regulations do not contain a 
comparable provision. Unlike most other State operating permit 
programs, however, Alaska has not deferred permitting minor sources 
subject to section 111 and 112 standards, as authorized by 40 CFR 
70.3(b). Instead, Alaska has exempted from title V permitting 
requirements only those minor sources which would be required to obtain 
an operating permit solely because they are subject to 40 CFR part 60, 
subpart AAA (NSPS for new residential wood heaters), 40 CFR 61.145 
(asbestos NESHAP for demolition and renovation), or 40 CFR 63.340(e)(1) 
(chromium NESHAP for hard and decorative chromium electroplating and 
chromium anodizing tanks). Given the very limited exemption from title 
V permitting requirements in Alaska, EPA believes it is highly 
improbable that any exempt sources in Alaska would apply for a title V 
operating permit. Accordingly, EPA believes that Alaska satisfies the 
requirements of 40 CFR 70.3(b)(3).
3. Permit Fee Demonstration
    Section 502(b)(3) of the Clean Air Act requires each permitting 
authority to collect fees sufficient to cover all reasonable direct and 
indirect costs necessary for the development and administration of its 
title V operating permit program. Each title V program submittal must 
contain either a detailed demonstration of fee adequacy or a 
demonstration that aggregate fees collected from title V sources meet 
or exceed $25 per ton of emission per year (adjusted from 1989 by the 
Consumer Price Index). See 40 CFR 70.4(b)(7); 40 CFR 70.9. The adjusted 
amount is currently $30.07. The $30.07 per ton is presumed, for 
purposes of program approval, to be sufficient to cover all reasonable 
program costs and is thus referred to as the ``presumptive minimum''.
    The State of Alaska has adopted a fee structure that is a 
combination of emissions fees and user fees. User fees are currently 
set at $78 per billable hour. Emission fees are currently $5.07 per ton 
of assessable emissions. These fees will result in the collection of 
over $1,200,000 per year based on the State's current estimate of 
assessable emissions and the billable hours for permit actions. Based 
on a detailed demonstration of program costs, the amount of fees 
collected under the State's fee structure appears sufficient to cover 
the direct and indirect costs of administering the State's title V 
program. EPA therefore is approving the State's fee structure as 
meeting the requirements of section 502(b)(3) of the Act and 40 CFR 
70.9. Title V fees are deposited in a ``clean air protection fund'' 
which must be appropriated by the Alaska Legislature. In order to 
retain approval of its title V program, the State must ensure that 
adequate funds are appropriated to cover all of the program costs.
4. Provisions Implementing the Requirements of Other Titles of the Act
    a. Authority for section 112 implementation. Except as discussed 
below in section B.1.iii. and the section proposing action on Alaska's 
section 112(l) submittal, Alaska has demonstrated adequate legal 
authority to implement and enforce section 112 requirements through the 
title V permit. Alaska has incorporated by reference most of the 
regulations that have been promulgated by EPA under section 112 of the 
Act that may affect Alaska sources. See 18 AAC 50.040(b) (relevant 
standards under 40 CFR part 61); 18 AAC 50.040(c) (relevant standards 
under 40 CFR part 63); AS 46.14.130(a) and 18 AAC 50.300 to 50.322 
(preconstruction review of major sources of hazardous air pollutants 
(``HAPs''). All title V permit applications are required to cite and 
describe all sources regulated by a Federal emission standard adopted 
by reference in 18 AAC 50.040 and the standard that applies to the 
source (18 AAC 50.335(e) (2) and (6)) and all title V permits issued by 
the State are required to include terms and conditions that assure 
compliance with the applicable requirements of 18 AAC 50.040 (18 AAC 
50.350(d)(1)(A) and (d)(3)).
    b. Implementation of Title IV of the Act. Title IV does not apply 
in Alaska. See section 401(b) of the Act.

B. Options for Title V Program Approval and Implications

1. Proposed Interim Approval
    EPA is proposing to grant interim approval to the Alaska program. 
If interim approval is promulgated, Alaska must address to EPA's 
satisfaction the following issues in order to receive full approval.
    i. Applicability. The Alaska definition of ``regulated air 
contaminant'' in AS 46.14.990(21) is inconsistent with the EPA 
definition of the term ``regulated air pollutant'' in 40 CFR 70.2. 
Specifically, EPA's definition requires that any pollutant subject to 
section 112(j) of the Act be considered a regulated air pollutant on 
the date 18 months after the applicable date established pursuant to 
section 112(e) of the Act (i.e., the date that major sources are 
required to submit permit applications under section 112(j)(2)). The 
Alaska definition, however, requires a pollutant to be considered a 
regulated air contaminant only after a permit has been issued pursuant 
to section 112(j). Because there are currently no sources or pollutants 
subject to section 112(j) of the Act, EPA

[[Page 49095]]

does not consider this deficiency to be a disapproval issue. However, 
because sources and pollutants may become subject to section 112(j) in 
the future, the Alaska definition must be revised. As a condition of 
full approval, EPA proposes that Alaska demonstrate to EPA's 
satisfaction that its definition of ``regulated air contaminant'' is 
consistent with EPA's definition of ``regulated air pollutant'' in 40 
CFR 70.2.
    ii. Applicable requirements. Part 70 requires all ``applicable 
requirements'' to be included in a permit application and permit, and 
defines ``applicable requirement'' to include, among other things, the 
requirements of title VI of the Act (Stratospheric Ozone Protection). 
See 40 CFR 70.2. The Alaska definition of ``applicable requirement'' 
does not include all of the EPA regulations implementing title VI (40 
CFR part 82) but only subparts B and F. Although EPA has proposed to 
revise 40 CFR part 70 to limit the definition of ``applicable 
requirement'' to only those provisions promulgated under sections 608 
and 609 of the Act (which EPA has promulgated in 40 CFR part 82, 
subparts B and F), this proposed revision is not yet adopted. As such, 
EPA believes it must propose interim approval of the Alaska program at 
this time because it does not meet the requirements of part 70. Should 
EPA revise part 70 as proposed, Alaska's rules will be consistent and 
no revisions will be needed. However, if EPA does not revise part 70 as 
proposed, EPA proposes to require that Alaska adopt and submit 
appropriate revisions as a condition of interim approval.
    iii. Authority to implement section 112 requirements. Alaska failed 
to adopt by reference into 18 AAC 50.040 certain NESHAP that apply to 
sources in Alaska, specifically 40 CFR 61.150 (asbestos NESHAP for 
waste disposal), 40 CFR 61.154 (asbestos NESHAP for active waste 
disposal sites) and 40 CFR Part 61 Subpart I (radionuclide NESHAP for 
facilities licensed by the Nuclear Regulatory Commission). As a result, 
sources subject to these NESHAP are not required to obtain title V 
permits, contrary to Alaska statutes which require operating permits 
for all sources subject to section 112 of the Act (unless exempted by 
EPA from the obligation to have a title V permit pursuant to section 
502()) of the Act. Moreover, these NESHAP would not be considered to be 
``applicable requirements'' under the Alaska program and therefore 
would not be required to be included in title V permits for subject 
sources.
    EPA believes that these deficiencies are not so serious as to 
warrant disapproval of the Alaska program, but rather, the Alaska 
program can be granted interim approval on the following grounds. 
Regarding the issue of sources required to have title V permits, EPA 
has deferred from the obligation to have a permit sources which are not 
major sources but are subject to a standard under section 111 or 
section 112. The fact that the Alaska program has not generally 
deferred non-major sources from its program, but may have inadvertently 
deferred non-major sources subject to these three NESHAP, is a matter 
of State law is not an issue for EPA approval. Since the Alaska program 
does not exempt any more sources subject to these NESHAP than allowed 
under EPA's deferral, this aspect of the Alaska program is approvable.
    On the issue of applicable requirements, Alaska has pointed out 
that other provisions of the Alaska rules, specifically 18 AAC 
50.335(g) and 18 AAC 50.350(f)(4) allows ADEC to include in a permit 
any Federally-enforceable requirement that the source requests be 
included. If the source does not request the State to include an 
applicable Federal requirement, EPA would have to object to the permit 
and eventually issue a Federal permit which includes the requirement. 
While this does not sufficiently address the deficiency in the State's 
legal authority to require inclusion of all applicable requirements in 
a permit, it does provide an opportunity for the State to issue 
adequate permits for the period of interim approval. Furthermore, there 
appears to be only a small number of sources which will be impacted by 
this deficiency, so its impact on the program will be minimal. As such, 
EPA is requiring, as a condition of full approval, that Alaska update 
its incorporation by reference to include all of the NESHAP that 
currently apply to title V sources in Alaska.
    iv. Insignificant emission units. Part 70 authorizes EPA to approve 
as part of a State program a list of insignificant activities and 
emissions levels which need not be included in the permit application, 
provided that an application may not omit information needed to 
determine the applicability of, or to impose, any applicable 
requirement, or to evaluate the fee amount required under the EPA-
approved schedule. 18 AAC 50.335(q) through (v) contain criteria for 
identifying insignificant sources and consist of a list of emission 
rates below which sources would be defined as insignificant, but must 
be listed in the permit application; a list of sources that are defined 
as ``categorically exempt'' and may be omitted from the permit 
application; a list of sources that are defined as ``insignificant'' 
based on size or production rate, but must be listed in the permit 
application; a list of sources that will be deemed ``insignificant'' on 
a case-by-case basis, but must be listed on the permit application; and 
a list of ``categorically exempt'' sources that could have significant 
emissions but are considered ``administratively insignificant'' for the 
purpose of operating permit applications because the sources are not 
regulated as stationary sources in Alaska. Sources that are subject to 
a Federally-enforceable requirement other than a requirement of the SIP 
that applies generally to all sources in Alaska (a so-called 
``generally applicable requirement'' 2) are not deemed 
``insignificant'' under Alaska's program even if they otherwise qualify 
under one of the five lists. 18 AAC 50.335(q). Importantly, 18 AAC 
50.335(m) includes a so-called ``gatekeeper,'' which expressly states 
that no permit application can omit information necessary to determine 
the applicability of, and include in a permit, all applicable 
requirements, including those for insignificant sources. In addition, 
18 AAC 50.350(m)(2) states that the permit will contain all Federally-
enforceable requirements that apply to insignificant sources.
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    \2\ ``Generally applicable requirements'' are those that apply 
universally to all sources, as opposed to requirements that focus on 
a category of sources.
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    EPA believes that, notwithstanding the gatekeeper and the 
requirement that a permit must contain all Federally-enforceable 
requirements that apply to insignificant sources, full approval of the 
Alaska provisions for insignificant sources is inappropriate for two 
reasons. First, 18 AAC 50.335(u) contains a list of sources that may be 
determined to be ``insignificant'' on a case-by-case basis. In order 
for EPA to approve such a ``director's discretion'' provision, Alaska 
must first demonstrate that each of the sources on that list (for 
example, pilot plants) would otherwise qualify as ``insignificant'' in 
all cases. EPA does not believe that 40 CFR 70.5(c) allows EPA to 
approve regulations that give a permitting authority complete 
discretion to determine on a case-by-case basis that a particular 
source is ``insignificant.'' See 60 FR 54990, 54995 (October 27, 1995) 
(proposed action on Idaho operating permits program). Alaska has 
advised EPA that upon further review of the sources listed in 18 AAC 
50.335(u), it has determined that several of those sources do not 
qualify as ``insignificant'' and that Alaska plans

[[Page 49096]]

on removing them from the list in a future revision of the rules. 
Therefore, as a condition of interim approval, EPA proposes to require 
that Alaska must demonstrate to EPA's satisfaction that each of the 
sources identified in 18 AAC 50.335(u) are insignificant or must delete 
those sources from the list.
    EPA's second concern with Alaska's program for insignificant 
sources concerns the State's exemption from monitoring, recordkeeping, 
reporting, and compliance certification requirements for insignificant 
sources that are subject only to generally applicable SIP requirements. 
See 18 AAC 50.350(m)(3). EPA believes that part 70 does not exempt such 
sources from the monitoring, recordkeeping, reporting and compliance 
certification requirements of 40 CFR 70.6, but instead provides only a 
limited exemption from permit application requirements for 
insignificant sources. See 61 FR 39335 (July 29, 1996) (final interim 
approval of Tennessee operating permits program based on exemption of 
insignificant emission units from certain permit content requirements); 
61 FR 9661 (March 11, 1996) (proposed interim approval of Tennessee 
operating permits program on same basis); 60 FR 62992 (December 5, 
1992) (final interim approval of Washington operating permits program 
based on exemption of insignificant emission units from certain permit 
content requirements); 60 FR 50166 (September 28, 1995) (proposed 
interim approval of Washington's operating permits program on same 
basis). On March 5, 1996, EPA issued a guidance document entitled 
``White Paper Number 2 for Improved Implementation of the Part 70 
Operating Permits Program'' by Lydia N. Wegman, Deputy Director, Office 
of Air Quality Planning and Standards, to Regional Air Directors 
(``White Paper No. 2''), which specifically addresses the issue of how 
title V permits can address insignificant emission units and activities 
subject to generally applicable SIP requirements in a manner that 
minimizes the burden associated with the permitting of such emission 
units and activities. Briefly summarized, the guidance provides that it 
is within the permitting authority's discretion to decide that no 
additional monitoring (beyond that provided in the applicable 
requirement itself) will be required in the title V permit for 
insignificant emission units or activities subject to generally 
applicable requirements, if there is little or no likelihood that a 
violation could occur from those emission units or activities.3 
However, this is in part a factual finding, and White Paper No. 2 
therefore contemplates that this discretion would be exercised on a 
permit-by-permit basis, where the finding can be reviewed in a context 
that is specific enough to be meaningful.4
---------------------------------------------------------------------------

    \3\ If no monitoring is required, it would follow that the 
permit can also dispense with recordkeeping and reporting for those 
units because there is no compliance data being regularly generated.
    \4\ EPA does not rule out that a State might structure an 
insignificant activities list narrowly enough that such a finding 
could be made programmatically, thereby allowing for a categorical 
exemption from part 70 monitoring, recordkeeping, and reporting. 
However, EPA does not find this to be the case for the current 
Alaska insignificant activities provisions because Alaska has not 
demonstrated to EPA that it has so narrowly defined the types of 
sources that can be deemed ``insignificant'' that there is little or 
no likelihood that a violation could occur from those sources.
    EPA believes that more often than not it will be the case that 
part 70 monitoring, recordkeeping, and reporting requirements will 
not be necessary where the State's insignificant activities are 
subject only to generally applicable requirements. Therefore, Alaska 
may address this interim approval condition by modifying the 
exemption from these requirements to a regulatory presumption that 
the monitoring, recordkeeping, and reporting requirements will not 
apply in those instances, but leaving the State with the authority 
to prescribe those requirements as needed on a permit-by-permit 
basis.
---------------------------------------------------------------------------

    White Paper No. 2, however, in no way suggests that emission units 
and activities subject to applicable requirements can be exempted from 
compliance certification, even on a permit-by-permit basis. To the 
contrary, White Paper No. 2 clearly states that compliance 
certification is required, but suggests a streamlined way in which 
compliance certifications may be made for these types of emission units 
and activities.
    The Ninth Circuit Court of Appeals has recently decided a case 
addressing this same issue. Western States Petroleum Association v. 
EPA, No. 95-70034 (June 17, 1996) (``WSPA''). Because of the 
similarities between that case and this action, EPA believes it 
appropriate to address here how it plans to respond to that decision. 
EPA wishes to emphasize that the WSPA decision is very recent, and that 
EPA is still in the process of developing a more thorough response that 
addresses other title V programs. However, given the State's desire to 
avoid imposition of the Federal Part 71 operating permits program, EPA 
decided it is in the State's best interest not to delay approval until 
a more thorough response could be articulated.
    The WSPA case concerned EPA's approval of the Washington State 
operating permits program, which contained an exemption from 
monitoring, recordkeeping, reporting, and compliance certification 
requirements for insignificant emission units and activities subject to 
generally applicable SIP requirements. See 60 FR 62996; 60 FR 50171. 
The Alaska insignificant sources provisions are modeled closely after 
the Washington provisions. Industry petitioners challenged EPA's 
identification of this exemption as grounds for interim approval, 
asserting that such an exemption was allowed by part 70, and that EPA 
had acted inconsistently by approving other title V programs with 
similar exemptions. The Ninth Circuit did not opine on whether EPA's 
position was consistent with part 70. It did, however, find that EPA 
had acted inconsistently in its title V approvals, and had failed to 
explain the departure from precedent that the Court perceived in the 
Washington interim approval.
    As explained in the Federal Register notice granting final interim 
approval to the Tennessee operating permits program, 61 FR 39337-39340, 
EPA accepts the broader holding of the WSPA decision, namely, that EPA 
should act consistently in its program approvals or else explain any 
departures. However, EPA does not necessarily agree with the specific 
findings of the Court regarding inconsistent actions in other State 
programs. The WSPA court found that EPA had acted to approve title V 
programs with exemptions from permit content requirements in eight 
instances. An inconsistency would exist where EPA had approved a title 
V program that exempts insignificant emissions units and activities 
from permit content requirements even where those emission units or 
activities are subject to an applicable requirement.
    EPA is still in the process of reviewing the insignificant emission 
units and activities provisions of the Ohio; North Carolina; Hawaii; 
and Jefferson County, Kentucky operating permit programs in order to 
determine whether EPA acted inconsistently in approving those programs. 
EPA has carefully reviewed the insignificant emission units and 
activities provisions of the Massachusetts; North Dakota; Knox County, 
Tennessee; and Florida operating permit programs, however, and has 
concluded that EPA did not act inconsistently in approving these 
programs.
    A careful examination of the Massachusetts permitting rule 
demonstrates that Massachusetts' insignificant emission units and 
activities provisions represent a careful effort to list emission units 
and activities that are not relevant to permit content. The North 
Dakota and Knox County title V regulations do not in any way suggest 
that emission units subject to applicable requirements may be

[[Page 49097]]

exempted from permit content, although the language of the Federal 
Register notices approving these provisions could be read as suggesting 
such an exemption existed. The language of EPA's approval notices, 
imprecise though it may have been, cannot create an exemption where 
none exists in the State program rules. With respect to Florida, the 
program regulations do appear to exempt insignificant activities from 
title V permitting. The Court concluded that EPA had not identified 
this provision as grounds for interim approval. EPA does not 
necessarily agree. In EPA's view, in order to remedy the deficiencies 
identified by EPA in the Florida interim approval notice, which 
included the State's failure to include gatekeeper language that 
assured the completeness of permit applications, the State would 
necessarily have to address the exemption created from permit content 
requirements. It follows that, to the extent Florida's regulations can 
be read as creating an exemption from permit content, this should also 
be considered grounds for interim approval. For a more detailed 
explanation of EPA's conclusion that the Massachusetts, North Dakota, 
Knox County, Tennessee, and Florida operating permit programs are not 
inconsistent with EPA's proposed action on the Alaska operating permits 
program and EPA's interim approval of the Washington operating permits 
program regarding treatment of insignificant emission units and 
activities, please refer to the docket available at the addresses 
listed at the beginning of this Notice.
    EPA also does not necessarily agree that the Washington interim 
approval constituted a departure from the precedent established 
generally in title V program approvals nationwide. The WSPA opinion 
states that:

    the EPA may not depart, sub silentio, from its usual rules of 
decision to reach a different, unexplained result in a single case * 
* * To the contrary, the EPA must clearly set forth the ground for 
its departure from prior norms so that we may understand the basis 
of the EPA's action and judge the consistency of that action with 
EPA's mandate. Slip Op., at 6990 (emphasis added).

EPA reads this to mean that a regulatory interpretation proffered by 
the Agency is not entitled to judicial deference if it conflicts with 
the de facto policy established through the Agency's actions on 
specific programs. That is, if the ``norms'' established through 
program approvals are other than the Agency's articulated policy, 
courts will not uphold the Agency's efforts to impose the latter.
    The Court in WSPA appeared to base its specific holding of 
inconsistency on its assumption that EPA had approved eight programs 
with exemptions from permit content, but had acted to impose the policy 
against permit content exemptions in only two instances.5 This 
assumption is incorrect. At the time the Washington State program 
received interim approval, EPA had approved 22 State and 39 local 
programs, and had proposed approval of another 13 State and 13 local 
programs. As of today, EPA has approved 45 State and 56 local programs, 
and has proposed approval of another 8 State and 4 local 
programs.6 Each program submitted to EPA necessarily addresses 
this issue, although most do so simply by providing for permit content 
language consistent with part 70--that is, by not affirmatively 
establishing any permit content exemption. Of 113 title V programs 
approved or in the process of approval, EPA believes that there are at 
most four with regulations that present inconsistencies on this issue, 
which represents a relatively minor set of deviations from the normal 
policy manifested in the vast majority of title V program approvals. In 
short, EPA believes it is clear from these totals that its ``prior 
norm'' has been to grant full approval only where emission units and 
activities subject to applicable requirements are not exempted from the 
permit, and that its interpretation of part 70, as manifested both in 
its articulated policy and in actual program approvals, is consistent 
with the position EPA proposes here with respect to the Alaska program. 
In those few instances where confirmed inconsistencies exist, EPA plans 
to take appropriate action to follow the WSPA Court's mandate that it 
act consistently or explain any departures.
---------------------------------------------------------------------------

    \5\ ``[T]he EPA has identified only two Title V programs that in 
fact apply permitting requirements to IEU's . . ..'' Slip Op., at 
6988.
    \6\ Altogether, 116 State and local agencies will have title V 
programs.
---------------------------------------------------------------------------

    In summary, EPA proposes as a condition of full approval that 
Alaska must adequately address these two identified issues: (1) The 
designation and definition of insignificant sources on a case-by-case 
basis; and (2) the exemption of insignificant sources from monitoring, 
recordkeeping, reporting, and compliance certification requirements. 
EPA does not believe, however, that these problems with Alaska's 
program preclude interim approval. The ``gatekeeper'' provisions of 18 
AAC 50.335(m), along with 18 AAC 50.350(m)(2), adequately assure that 
Alaska has the necessary authority to issue permits that assure 
compliance with all applicable requirements to subject sources during 
the interim approval period, as required by 40 CFR 70.4(d)(3)(ii) and 
70.6(a)(1).
    v. Emissions trading provided for in applicable requirements. Part 
70 requires that the permitting authority must include terms and 
conditions, if the permit applicant requests them, for trading of 
emissions increases and decreases in the permitted facility, to the 
extent that the applicable requirements provide for trading such 
increases without a case-by-case approval of each emissions trade. See 
40 CFR 70.6(a)(10). The Alaska program does not contain a comparable 
provision. This appears to be based on the State's assumption that no 
applicable requirements currently provide for such trading. Certain of 
the EPA standards in 40 CFR part 63, however, do allow for such 
trading, and as such, EPA believes that the Alaska program must contain 
such a provision as a condition of full approval. Therefore, EPA 
proposes that Alaska ensure that its program include the necessary 
provisions to meet the requirements of 40 CFR 70.6(a)(10).
    vi. Inspection and entry requirements. Part 70 requires each title 
V permit to contain a provision allowing the permitting authority or an 
authorized representative, upon presentation of credentials and other 
documents as may be required by law, to perform specified inspection 
and entry functions. See 40 CFR 70.6(c)(2). The Alaska program fails to 
meet the requirements of part 70 in an important respect. Alaska law 
conditions ADEC's inspection and entry authority on first obtaining the 
consent of the owner or operator or obtaining a warrant. See AS 
46.03.860; 46.14.515(a); 18 AAC 50.345(7). The owner or operator is not 
required to consent to such inspections and entry as a condition of 
obtaining a title V permit. EPA proposes to require, as a condition of 
full approval, that Alaska demonstrate to EPA's satisfaction that its 
inspection and entry authority meets the requirements of 40 CFR 
70.6(c)(2).
    vii. Progress reports. Part 70 requires a title V permit to require 
the submission of progress reports, consistent with the applicable 
schedule of compliance and 40 CFR 70.5(c)(8), to be submitted at least 
semiannually, or at a more frequent period if specified in the 
applicable requirement or by the permitting authority. See 40 CFR 
70.6(c)(4). Alaska requires the submission of such reports semi-
annually, but requires that they be submitted more frequently only if 
required by the permitting authority.

[[Page 49098]]

See 18 AAC 50.350(k)(3). There is therefore no assurance that more 
frequent progress reports will be required in the permit if specified 
in the applicable requirement. As a condition of full approval, EPA 
proposes to require that Alaska demonstrate to EPA's satisfaction that 
its program complies with the requirements of 40 CFR 70.6(c)(4).
    viii. Compliance certification. Part 70 requires a permitting 
program to contain requirements for compliance certification with terms 
and conditions contained in the permit, including emissions 
limitations, standards or work practices. See 40 CFR 70.6(c)(5). The 
Alaska program requires a title V permit to contain compliance 
certification requirements only with permit terms and conditions 
established under 18 AAC 50.345 (standard conditions) and 18 AAC 
50.350(d) (source specific permit requirements), (e) (facility-wide 
permit requirements) and (f) (certain other requirements). It therefore 
does not require certification of compliance with all permit terms and 
conditions, such as monitoring, recordkeeping, reporting and compliance 
plan requirements. See 18 AAC 50.350(g), (h), (i) and (j). There may 
also be other terms and conditions of a permit that are required by a 
statute or regulation other than those specifically enumerated in 18 
AAC 50.350(j). As a condition of full approval, EPA proposes to require 
that Alaska demonstrate to EPA's satisfaction that its program complies 
with the requirements of 40 CFR 70.6(c)(5).
    ix. General permits. Part 70 allows States to issue ``general 
permits,'' which are permits issued after notice and opportunity for 
public participation that cover numerous similar sources. See 40 CFR 
70.6(d). The Alaska program authorizes the issuance of general permits. 
See AS 46.14.210; 18 AAC 50.380. The Alaska provisions for general 
permits, however, fail to comply with the requirements of part 70 in 
one respect. Part 70 allows permitting authorities to provide for 
applications for general permits which deviate from the requirements of 
40 CFR 70.5, provided that such applications otherwise meet the 
requirements of title V. 40 CFR 70.6(d)(2). The Alaska regulations 
indicate that ADEC will issue specialized permit applications for 
general permits, see 18 AAC 50.380(c) (source shall submit a completed 
application form issued by ADEC for the specific facility type), but do 
not require that such general permit applications meet the requirements 
of title V. Accordingly, EPA proposes to require, as a condition of 
full approval, that Alaska demonstrate to EPA's satisfaction that 
applications for general permits meet the requirements of title V.
    x. Affirmative defense for emergencies. Part 70 provides an 
affirmative defense to an action brought for noncompliance with a 
technology-based limitation in a title V permit if certain specified 
conditions are met. See 40 CFR 70.6(g). In the August 1995 proposed 
revisions to part 70, EPA has clarified that, ``By technology-based 
standards, EPA means those standards the stringency of which are based 
on determinations of what is technologically feasible, considering 
relevant factors. The fact that technology-based standards contribute 
to the attainment of the health-based NAAQS or help protect public 
health from hazardous air pollutants does not change their character as 
technology-based standards.'' See 59 FR 45530, 45559 (August 31, 1995).
    Alaska's program provides an affirmative defense for unavoidable 
emergencies, malfunctions and nonroutine repairs that closely parallels 
40 CFR 70.6(g), but is slightly broader than that section in a few 
respects. See AS 46.14.560; 18 AAC 50.235; 18 AAC 50.990. First, the 
Alaska regulations include a definition of ``technology-based 
standard'' which closely corresponds to the definition in the proposed 
part 70 revisions, but requires that the stringency of the standard be 
based ``primarily'' on determinations of what is technologically 
feasible. 18 AAC 50.990(82). EPA is concerned that, with the addition 
of the word ``primarily,'' this provision could be used to incorrectly 
classify a health-based standard, such as an opacity limit or grain 
loading standard, as a technology-based standard. Second, although the 
Alaska program requires a permittee claiming the affirmative defense to 
notify ADEC within two working days of the exceedance, Alaska gives a 
permittee up to one week after the discovery of the exceedance to 
provide ADEC with a written notice describing the cause of, and its 
response to, the exceedance. 18 AAC 50.235. Part 70 requires that 
written notice of the exceedance containing this information be 
provided within two working days of the exceedance. See 40 CFR 
70.6(g)(3)(iv). As a condition of full approval, EPA proposes to 
require that Alaska demonstrate to EPA's satisfaction that its 
emergency provisions are consistent with the requirements of 40 CFR 
70.6(g).
    xi. Off-permit provisions. Part 70 authorizes an approved permit 
program to include certain ``off-permit'' provisions whereby a source 
can make a change at the permitted facility without the need for a 
permit revision. See 40 CFR 70.4(b) (14) and (15). These provisions 
require the permittee to keep a record at the facility describing each 
off-permit change and to provide ``contemporaneous'' notice of each 
off-permit change to EPA and the permitting authority. See 40 CFR 
70.4(b)(14). The Alaska program, however, limits the requirement to 
provide notice and keep records to only those sources required to 
provide certain information under 18 AAC 50.335. Although EPA has 
proposed to revise 40 CFR part 70 to eliminate the off-permit 
requirements, this proposed revision is not yet adopted. As such, EPA 
believes it must propose interim approval of the Alaska program at this 
time because it does not meet the requirements of part 70. Should EPA 
revise part 70 as proposed, Alaska's rules will be consistent with part 
70 in this respect and no revisions will be needed. However, if EPA 
does not revise part 70 as proposed, EPA proposes to require that 
Alaska ensure that its program requires notice and records for all off-
permit changes.
    xii. Statement of basis. Part 70 requires that the permitting 
authority shall provide and send to EPA, and to any other person who 
requests it, a statement that sets forth the legal and factual basis 
for the draft permit conditions (including references to the applicable 
statutory or regulatory provisions). See 40 CFR 70.7(a)(5). The Alaska 
title V program does not contain a comparable requirement. As a 
condition of full approval, Alaska must demonstrate to EPA's 
satisfaction that its program satisfies the requirements of 40 CFR 
70.7(a)(5).
    xiii. Administrative amendments. As discussed above, part 70 
authorizes States to allow certain ministerial types of changes to 
title V permits to be made by administrative amendment, which does not 
require EPA or public review or participation. See 40 CFR 70.7(d). That 
section contains a list of five types of changes which may be made by 
administrative amendment, and authorizes EPA to approve as appropriate 
for incorporation by administrative amendment other types of changes 
which are similar to those specifically enumerated in 40 CFR 
70.7(d)(1). See 40 CFR 70.7(d)(1)(vi). As also discussed above, EPA 
believes that one of the three additional changes in the Alaska 
regulations is not approvable and must be revised as a condition of 
full approval.
    Alaska's program allows alterations in the identification of 
equipment or components that have been replaced

[[Page 49099]]

with equivalent equipment or components to be made by administrative 
amendment provided certain conditions are met. See 18 AAC 50.370(a)(5). 
EPA believes that the restrictions on such permit alterations for 
equivalent replacement equipment or components are sufficient to ensure 
that any resulting change would be truly ministerial, with the 
following exception. 18 AAC 50.370(a)(5)(D) prohibits such a change to 
be made by administrative amendment if the revision would result in a 
modification under 40 CFR part 60, which is adopted by reference in 18 
AAC 50.040. This restriction is too narrow, in that it would allow 
alterations in equivalent replacement equipment or components even if 
the change resulted in a modification or reconstruction under 40 CFR 
part 61 or 63. Such changes are title I modifications and as such must 
be made by significant permit modification procedures. See 18 AAC 
50.990(82); 18 AAC 50.375. Accordingly, EPA proposes to require, as a 
condition of full approval, that Alaska revise 18 AAC 50.370(a)(5)(D) 
to expand the prohibition to include modifications and reconstructions 
made pursuant to 40 CFR parts 60, 61 and 63, or to eliminate 18 AAC 
50.370(a)(5) from the list of changes that may be made by 
administrative amendment.
    xvi. Minor permit modifications. Part 70 requires States to 
establish procedures for minor permit modifications which are 
substantially equivalent to those set forth in 40 CFR 70.7(e). The part 
70 regulations contain criteria that a revision must meet in order to 
be processed as a minor permit modification and then contains 
procedures for those changes qualifying as minor permit modifications. 
See 40 CFR 70.7(e)(2)(i)(A). The Alaska program takes the same basic 
approach to permit modifications as part 70, but contains several 
differences which EPA believes require interim approval. See 18 AAC 
50.375.
    First, part 70 prohibits a permit revision to be made as a minor 
permit modification if the revision involves ``significant changes to 
existing monitoring, reporting, or recordkeeping requirements in the 
permit.'' 40 CFR 70.7(e)(2)(i)(A)(2). Part 70's significant 
modification procedures further restrict the class of revisions that 
may be processed as a minor permit modification, stating that ``every 
significant change in existing monitoring permit terms or conditions 
and every relaxation of reporting or recordkeeping permit terms shall 
be considered significant.'' See 40 CFR 70.7(e)(4). Like part 70, the 
Alaska program prohibits changes to be made by minor permit 
modification if the change would ``materially alter or reduce the 
frequency, accuracy, or precision of existing monitoring, 
recordkeeping, or reporting requirements in the permit.'' 18 AAC 
50.375(a)(6). In contrast to part 70, however, neither Alaska's minor 
nor significant modification procedures ensure that a relaxation of 
reporting or recordkeeping permit terms must be processed as a 
significant modification. Instead, the Alaska program simply states 
that any revision that cannot be processed as an administrative 
amendment or minor permit modification shall be processed as a 
significant modification. 18 AAC 50.370(h). The Alaska program would, 
therefore, allow a relaxation of reporting or recordkeeping 
requirements to be processed as a minor modification, as long as the 
revision did not ``materially alter or reduce'' the frequency, 
accuracy, or precision of existing reporting or recordkeeping 
requirements.
    Second, the Alaska program also appears deficient with respect to 
the information required in applications for minor permit 
modifications. Part 70 requires that an application for a minor permit 
modification must include a description of the change, the emissions 
resulting from the change and any new applicable requirements that will 
apply if the change occurs. 40 CFR 70.7(e)(2)(ii)(A). The Alaska 
program requires that an application for a minor permit modification 
contain a description of changes at the facility that would result from 
the proposed revision and, for any resulting changes at the facility, 
the information required by 18 AAC 50.335, which sets forth the 
requirements for permit applications for title V permits. That section, 
however, does not appear to require a facility applying for a minor 
permit modification to provide information on the emissions resulting 
from the modification.
    Finally, the Alaska program fails to include provisions which allow 
minor permit modification procedures to be used for permit 
modifications involving the use of economic incentives, marketable 
permits, emissions trading, and other similar approaches to the extent 
that such minor permit modification procedures are explicitly provided 
for in an applicable implementation plan or in applicable requirements 
promulgated by EPA. See 70.7(e)(2)(B). Again, this appears to be based 
on an incorrect assumption by the State that no applicable requirements 
currently provide for the use of such minor permit modification 
procedures. However, as stated above, certain of the EPA standards in 
40 CFR part 63 do allow for the use of minor modification procedures, 
and as such, this provision is required as a condition of full 
approval. Therefore, as a condition of full approval, EPA proposes to 
require Alaska to ensure that its program include the necessary 
provisions to meet the requirements of 40 CFR 70.7(e)(2)(B).
    xv. Group processing of minor permit modifications. Part 70 allows 
a permitting authority to process as a group certain categories of 
applications for minor permit modifications at a single source. See 40 
CFR 70.7(e)(3). Section 70.7(e)(3)(i) establishes standard thresholds 
for determining whether requests for permit modifications can be 
grouped, but allows EPA to approve alternative thresholds, if the 
permitting authority can justify the alternative thresholds based on 
two specified criteria. The Alaska program contains provisions allowing 
group processing of minor permit modifications. See 18 AAC 50.375(d). 
The Alaska program, however, does not contain any thresholds, either 
the standard thresholds set forth in 40 CFR 70.7(e)(3)(i) or proposed 
thresholds tailored to Alaska sources, for determining whether minor 
permit modifications may be processed as a group.
    The failure of the Alaska program to establish thresholds for group 
processing leads to two additional deficiencies in the Alaska program. 
First, the Alaska program allows for group processing of minor permit 
modifications on a quarterly basis. Section 70.7(e)(3)(iii) requires 
that the permitting authority notify EPA of requested permit 
modifications to be processed as a group on a quarterly basis, or 
within 5 working days of receipt of an application demonstrating that 
the aggregate of a source's pending applications equals or exceeds the 
approved threshold levels, whichever is earlier. Second, Alaska's 
regulations do not require a source to include in an application for 
group processing, a determination of whether a requested modification, 
when aggregated with the other pending applications to be processed as 
a group, equals or exceeds the approved threshold levels, as required 
by 40 CFR 70.7(e)(3)(ii)(D).7 As

[[Page 49100]]

a condition of full approval, EPA proposes that Alaska be required to 
demonstrate that its group processing procedures are consistent with 
the requirements of 40 CFR 70.7(e)(3).
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    \7\ Because the Alaska group processing provision relies on the 
State's general minor permit modification procedures, Alaska's group 
processing provision is also deficient for the reasons set forth 
above in the discussion of the problems with Alaska's minor permit 
modification procedures. These issues must also be addressed for 
group processing as a condition of full approval.
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    xvi. Significant permit modifications. Part 70 requires a State to 
provide for a review process that will assure completion of review of 
the majority of significant permit modifications within 9 months after 
receipt of a complete application. 40 CFR 70.7(e)(4)(ii). The Alaska 
submittal does not address this requirement in its regulations or 
otherwise in its program submittal. EPA proposes to require, as a 
condition of full approval, that Alaska provide assurances that its 
program is designed and will be implemented so as to complete review on 
the majority of significant permit modifications within this timeframe.
    xvii. Reopenings. Part 70 establishes minimum requirements a State 
must meet where the State or EPA determines that cause exists to 
terminate, modify or revoke and reissue a permit. See 40 CFR 70.7 (f) 
and (g). The Alaska program contains reopening provisions, but the 
provisions fail to comply with part 70 in several respects. Part 70 
requires that a permit be reopened if additional requirements become 
applicable to a major part 70 source with a remaining term of 3 or more 
years. Reopening is not required if the effective date of the 
requirement is later than the date the permit is due to expire, except 
this exception to the reopening requirement shall not apply if the 
permit or its terms have been administratively extended. See 40 CFR 
70.7(f)(1)(i). The Alaska program satisfies the requirements for 
reopening a permit in the event of new applicable requirements, except 
that there is nothing in the Alaska program that would require 
reopening in the event that the effective date of a new applicable 
requirement is later than the permit expiration date and the permit has 
been administratively extended. See AS 46.14.280(a)(3)(B).
    Part 70 also requires that a permit shall be reopened or revised if 
the State or EPA determines that the permit contains a material mistake 
or that inaccurate statements were made in establishing the emissions 
standards or other terms or conditions of the permit. See 40 CFR 
70.7(f)(2)(iii). The Alaska program states that ADEC may reopen a 
permit if, among other things, the permit was obtained by 
misrepresentation of a material fact, the permit was obtained by 
failure of the facility to disclose fully the facts relating to 
issuance of the permit, the permit contains a material mistake or there 
has been a material change in the quantity or type of emissions. See AS 
46.14.280(1)(A), (2)(A) and (2)(B). This provision of Alaska's program 
does not appear to comply with part 70 in that the Alaska program 
merely authorizes ADEC to reopen a permit under the stated 
circumstances, where as part 70 requires that a permit be reopened if 
ADEC or EPA makes such a finding.
    The Alaska program also fails to contain required procedures in the 
event of a reopening for cause by EPA. Part 70 requires that, within 90 
days of receiving notice from EPA that cause exists to terminate, 
modify or revoke and reissue a permit, the permitting authority shall 
forward to EPA a proposed determination of termination, modification, 
or revocation and reissuance. 40 CFR 70.7(g)(2). If EPA then objects to 
the permitting authority's proposed determination, the permitting 
authority has 90 days to resolve the objection by terminating, 
modifying, or revoking and reissuing the permit in accordance with 
EPA's objection. 40 CFR 70.7(g)(4). The Alaska program does not appear 
to contain any comparable provisions.
    Finally, part 70 requires that a State title V program assure that 
reopenings are made as expeditiously as practicable. 40 CFR 70.7(f)(2). 
The Alaska program does not appear to contain a comparable provision 
either in its regulations or otherwise in its program submittal. EPA 
proposes to require, as a condition of full approval, that Alaska 
demonstrate to EPA's satisfaction that its provisions for reopenings 
comply with the requirements of 40 CFR 70.7(f) and (g).
    xviii. Public petitions to EPA. Part 70 allows any person, within 
60 days after expiration of EPA's 45-day review period, to petition EPA 
to object to a permit based on grounds raised during the public comment 
period. See 40 CFR 70.6(d). If, as a result of such a petition, EPA 
objects to the permit and the permit has not already been issued, the 
permitting authority may not issue the permit until EPA's objection has 
been resolved. If the permit has been issued at the time of an EPA 
objection resulting from a public petition, the petition for review 
does not stay the effectiveness of the permit and, after any action by 
EPA to modify, terminate, or revoke the permit, the permitting 
authority may thereafter issue only a revised permit that satisfies 
EPA's objection. Alaska's program does not appear to address these 
requirements. The prohibition on issuance of a permit if the EPA 
objects appears to apply only if EPA objects during its 45-day review 
period. AS 46.14.220(a). In the case of an EPA objection in response to 
a petition, EPA's objection would occur after the 45-day review period. 
EPA proposes to require, as a condition of full approval, that Alaska 
demonstrate to EPA's satisfaction that Alaska's provisions regarding 
public petitions to EPA, comply with the requirements of 40 CFR 
70.8(d).
    xix. Public participation. Part 70 requires that the permitting 
authority make available to the public any permit application, 
compliance plan, permit, and monitoring and compliance certification 
report pursuant to section 503(e) of the Clean Air Act, except for 
information entitled to confidential treatment pursuant to section 
114(c) of the Act, and expressly provides that the contents of a title 
V permit are not entitled to confidential treatment. See 40 CFR 
70.4(b)(3)(viii). Alaska's statutes and regulations regarding public 
access to information appear to be comparable to the requirements of 
part 70 with one exception. See AS 09.25.110 to .220; 46.14.520; 
45.50.910 to .945. There is no express assurance under Alaska law that 
the terms and contents of a title V permit will not be entitled to 
confidential treatment. EPA believes that it is very unlikely that 
anything in a title V permit would qualify for confidential treatment 
under Alaska law in light of the narrow scope of information entitled 
to confidential treatment in Alaska and the provisions specifying the 
content of a title V permit. EPA therefore believes that the failure of 
the Alaska program to expressly state that nothing in a title V permit 
shall be entitled to confidential treatment does not pose a bar to 
interim approval. See 40 CFR 70.4(d)(3)(iv); see also 60 FR 54990, 
54999 (October 27, 1995)(proposed interim approval of Idaho title V 
program). In order to obtain full approval, however, Alaska must 
demonstrate to EPA's satisfaction that nothing in a title V permit will 
be entitled to confidential treatment.
2. Effect of proposed action
    Final interim approval may be granted for up to two years following 
the effective date of final interim approval, and cannot be renewed. 
During the interim approval period, Alaska would be protected from 
sanctions, and EPA would not be obligated to promulgate, administer and 
enforce a Federal permits program for the State of Alaska. Permits 
issued under a program with interim approval have full standing with 
respect to part 70. In addition, the one-year time period for submittal 
of permit applications by subject sources and the

[[Page 49101]]

three-year time period for processing the initial permit applications 
begin upon the effective date of interim approval.
    If, following the grant of interim approval, Alaska were to fail to 
submit a complete corrective program for full approval by the date six 
months before expiration of the interim approval, EPA would start an 
18-month clock for mandatory sanctions. If Alaska then failed to submit 
a corrective program that EPA found complete before the expiration of 
that 18-month period, EPA would be required to apply one of the section 
179(b) sanctions, which would remain in effect until EPA determined 
that Alaska had corrected the deficiency by submitting a complete 
corrective program. Moreover, if the Administrator finds a lack of good 
faith on the part of the State, both sanctions under section 179(b) 
would apply after the expiration of the 18-month period until the 
Administrator determined that the State had come into compliance. In 
any case, if, six months after application of the first sanction, 
Alaska still had not submitted a corrective program that EPA found 
complete, a second sanction would be required.
    If, following final interim approval, EPA were to disapprove 
Alaska's complete corrective program, the consequences would be the 
same as if EPA had initially disapproved, rather than granted interim 
approval to, Alaska's submittal.
3. Scope of Proposed Interim Approval
    If EPA grants final interim approval to the Alaska title V program, 
EPA proposes that the program would apply to all title V sources (as 
defined in the approved program) within all geographic regions of the 
State of Alaska, except within ``Indian Country'' as defined in 18 
U.S.C. section 1151.

III. Proposed Action on Section 112(l) Submittal and Implications

A. Authority for Section 112 Implementation

    In its title V program submittal, Alaska has demonstrated adequate 
legal authority to implement and enforce all section 112 (hazardous air 
pollutants) requirements through its title V operating permit process. 
All Alaska title V permit applications are required to cite and 
describe each source regulated by a Federal emission standard adopted 
by reference in 18 AAC 50.040 and the standard that applies to the 
source (18 AAC 50.335(e)(2) and (6)). In addition, all title V permits 
issued by the State are required to include terms and conditions that 
assure compliance with the applicable requirements of 18 AAC 50.040 (18 
AAC 50.350(d)(1)(A) and (d)(3)).
    Alaska has incorporated by reference and is requesting delegation 
for all source-applicable sections of the following Federal regulations 
promulgated by EPA under section 112 of the Act: 40 CFR part 61, 
subparts A (except Sec. 61.16 8), E, J, V, Y, FF, Sec. 61.145 of 
subpart M (along with other sections and appendices which are 
referenced in 61.145) as this rule applies to sources required to 
obtain an operating permit under AS 46.14.130(b)(1)-(3) and 18 AAC 
50.330 9, and appendices A, B, and C; and 40 CFR part 63, subparts 
A (except 63.12 through 63.15 10), B (except 63.50 11 and 
63.54 12), D, and M. See 18 AAC 50.040(b) (relevant standards 
under 40 CFR part 61); 18 AAC 50.040(c) (relevant standards under 40 
CFR part 63); AS 46.14.130(a) and 18 AAC 50.300 through 50.322 
(preconstruction review of major sources of HAPs). Alaska is also 
requesting authority to implement and enforce all future 40 CFR parts 
61 and 63 regulations which Alaska adopts by reference into State law. 
Finally, Alaska requests approval under the authority of 40 CFR 63.93 
to substitute its state preconstruction review program for the Federal 
preconstruction review requirements in 40 CFR 63.5(b)(2)-(4) and 63.54, 
as these rules apply to newly constructed major affected sources 
13 or the construction of a new emission unit 14.
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    \8\ 40 CFR 61.16 references the Federal public information 
requirements set out in 40 CFR Part 2 which apply solely to EPA and 
do not place any information disclosure requirements on a State or 
local agency. Alaska has adopted similar requirements under AS 
46.14.520 and 46.14.525 which apply to the public availability of 
information provided to the State by affected facilities.
    \9\ 18 AAC 50.330 exempts from the requirement under AS 
46.14.130(b)(3) to obtain an operating permit those facilities which 
would only be subject to such requirement because they contain 
sources regulated by the asbestos demolition and renovation 
provisions of 40 CFR 61.145 and those sources exempted from part 70 
permitting under the chromium electroplating and anodizing 
provisions of 40 CFR 63.340(e)(1).
    \10\ 40 CFR 63.12 through 63.15 refer to EPA administrative 
activities which do not apply to Alaska and therefore are not 
necessary for delegation purposes.
    \11\ 63.50 ``Applicability'' defines when a source becomes 
subject to the provisions of 63.51 through 63.56. Although Alaska 
did not adopt 63.50 into State law, they have adopted the relevant 
applicability language of 63.50(a) into 18 AAC 50.040(c)(2)(B), 
which EPA believes is sufficient for purposes of implementing the 
requirements of subpart B.
    \12\ Section 63.54 defines optional notice and approval 
requirements for newly constructed and reconstructed sources which 
EPA is not requiring the State to adopt for delegation purposes.
    \13\ See definitions of ``Major source'' and ``Affected source'' 
in 40 CFR 63.2.
    \14\ As defined in 40 CFR 63.51.
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B. Program for Delegation of Section 112 Standards as Promulgated

    The requirements for part 70 program approval, specified in 40 CFR 
70.4(b), encompass section 112(l)(5) requirements for approval of a 
State program for delegation of section 112 standards promulgated by 
EPA as they apply to title V sources. Section 112(l)(5) requires that 
the State's program contain adequate authorities, adequate resources 
for implementation, and an expeditious compliance schedule, which are 
also requirements under part 70. Because the State program has met 
these basic requirements for the purpose of approval of its title V 
program, it has also met these requirements for the purpose of 
receiving delegation of the section 112 standards that Alaska has 
adopted by reference.
    However, in regard to the delegation of 40 CFR 61.145, EPA is 
concerned that Alaska does not currently have inspection personnel 
trained to perform asbestos inspections. EPA believes that proper 
training is necessary if Alaska is to properly enforce and assure 
compliance with 40 CFR 61.145. In this regard EPA has requested Alaska 
to provide for adequate training of its staff who will be performing 
asbestos inspections. Although EPA is proposing to approve delegation 
of this portion of the asbestos program to Alaska, EPA plans to 
continually monitor Alaska's asbestos program to ensure that the staff 
are properly trained and that the program is being properly implemented 
and enforced.

C. Substitution of State Preconstruction Review Regulations

    As stated above, Alaska seeks to replace the Federal 
preconstruction review regulations of 40 CFR 63.5(b)(3) and 63.54 with 
comparable State-adopted regulations. Alaska adopted 40 CFR 63.5(b)(3), 
(d) and (e) 15 into 18 AAC 50.040 but did not adopt 40 CFR 63.54. 
EPA has determined that the State preconstruction review requirements 
of AS 46.14.130 and 18 AAC 50.300 through 50.322, are less stringent 
than 40 CFR 63.5(b)(3) and 40 CFR 63.54 as these rules apply to newly 
constructed major sources of HAPs. Alaska's program requires newly 
constructed, installed, or modified facilities that emit or have the 
potential

[[Page 49102]]

to emit hazardous air contaminants 16 equal to or greater than 
major source thresholds to obtain a construction permit. See AS 
46.14.130(a)(4). In this respect, Alaska's program is as stringent as 
40 CFR 63.5(b)(3) and 63.54. The Alaska program also provides for 
similar application, review, and approval procedures as provided for in 
40 CFR 63.5(d), (e), and 63.54. See 18 AAC 50.300 through 50.322. But, 
unlike 40 CFR 63.5(b)(3), Alaska preconstruction review procedures 
allow newly constructed sources at an existing facility to ``net out'' 
of preconstruction review. See Section IV.G.1 of the Alaska SIP, Alaska 
Point Source Control Program. In other words, if a facility can offset 
emission increases from the new source, thereby showing that no net 
increase in emissions will occur, the facility is relieved from 
obtaining pre-approval from Alaska to construct this new emission 
source.
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    \15\ Alaska adopted these rules only as these rules apply to 
reconstructed hazardous air contaminant major facilities through a 
permit condition in 18 AAC 50.345(b).
    \16\ ''Hazardous air contaminant'' is a State term that has the 
same meaning as the federal term ``hazardous air pollutant.'' See AS 
46.14.990.
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    Additionally, 40 CFR 63.5(b)(3) requires all new major affected 
sources (i.e., new major sources which have the potential to emit HAPs 
in quantities above major source thresholds, and ``affected sources'' 
which are considered ``major sources'' for the purpose of establishing 
maximum achievable control technology standards under the authority of 
section 112 of the Clean Air Act but do not have the potential to emit 
HAPs above major source thresholds) to obtain approval prior to 
construction, whereas Alaska's preconstruction program regulations only 
applies to new major HAPs sources (i.e., those sources that have the 
potential to emit HAPs above major source thresholds). For example, a 
facility which builds a new hard chromium electroplating operation that 
has a potential rectifier capacity greater than 60 million ampere-hours 
per year would be subject to preconstruction review and approval under 
40 CFR 63.5(b)(3) but would not be required to undergo preconstruction 
review under Alaska's program since it would not have the potential to 
emit chromium in quantities greater than 10 tons per year. Given this, 
EPA has determined that Alaska's preconstruction review program is less 
stringent than 40 CFR 63.5(b)(3) and EPA is therefore cannot be 
approved.

D. Options for Section 112(l) Approval and Implications

    In conjunction with the actions being taken in regard to Alaska's 
title V program submittal, EPA proposes to approve Alaska's delegation 
request made on May 17, 1995, and supplemented on February 27, and July 
5, 1996, for all existing applicable 40 CFR parts 61 and 63 regulations 
adopted by reference in 18 AAC 50.040, with the exception of 40 CFR 
63.6(g) which the state has adopted by reference in 50.040(c)(1)(D). 
EPA is disapproving Alaska's request for delegation of authority for 
approving alternative non-opacity emission standards under 40 CFR 
63.6(g) because such authority is reserved for the EPA Administrator 
and cannot be delegated to a State or local agency. Because the State's 
request for approval of authority to implement and enforce 40 CFR parts 
61 and 63 does not include implementation and enforcement for part 70 
exempted sources, EPA will retain the responsibility for implementing 
and enforcing 40 CFR part 61, subpart M, for area source asbestos 
demolition and renovation activities, and 40 CFR part 63, subpart N, 
for area source chromium electroplating and anodizers operations which 
have been exempted from part 70 permitting in 40 CFR 63.340(e)(1). See 
61 FR 27785, 27787 (June 3, 1996). EPA also proposes to grant approval, 
under section 112(l)(5) and 40 CFR 63.91, of Alaska's mechanism for 
receiving delegation of future 40 CFR part 63 regulations as adopted 
unchanged into State law.17 EPA is proposing to disapprove 
Alaska's request to implement and enforce its State-adopted 
preconstruction review regulations in 18 AAC 50.300 through 50.322 in 
place of 40 CFR 63.5(b)(3). In this respect, EPA retains the authority 
to administer the Federal preconstruction review program under 40 CFR 
63.5(b)(3) as this rule applies to the construction of a new major 
affected source; therefore, owners and operators subject to 40 CFR 
63.5(b)(3) must still obtain EPA approval prior to commencing 
construction.
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    \17\ Under this streamlined approach, Alaska will only need to 
send a letter of request to EPA for all future NESHAP regulations 
which the State has adopted by reference. As appropriate, EPA would 
in turn respond to this request by sending a letter back to the 
State delegating the appropriate NESHAP standard(s) as requested. No 
further formal response from the State would be necessary at this 
point, and if a negative response from the State is not received 
within 10 days of this letter of delegation from EPA, the delegation 
would then become final. Such delegations will periodically be 
published in the Federal Register.
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    Although EPA is delegating authority to Alaska to enforce the 
NESHAP regulations as they apply to affected sources, it is important 
to note that EPA retains oversight authority for all sources subject to 
these Federal requirements. EPA has the authority and responsibility to 
enforce the Federal regulations in those situations where the State is 
unable to do so or fails to do so.

E. Scope of Proposed Approval

    If EPA approves the Alaska section 112(l) programs as proposed, EPA 
proposes that, as with Alaska's title V program, the section 112(l) 
programs would apply to all sources within all geographic regions of 
the State of Alaska, except within ``Indian Country,'' as defined in 18 
U.S.C. section 1151.

IV. Administrative Requirements

A. Request for Public Comments

    EPA is requesting comments on all aspects of this proposed action. 
Copies of the State's submittal and other information relied upon for 
the proposed action are contained in a docket maintained at the EPA 
Regional Office. The docket is an organized and complete file of all 
the information submitted to, or otherwise considered by, EPA in the 
development of this proposed action. The principal purposes of the 
docket are:
    (1) to allow interested parties a means to identify and locate 
documents so that they can effectively participate in the approval 
process, and
    (2) to serve as the record in case of judicial review. EPA will 
consider any comments received by October 18, 1996.

B. Executive Order 12866

    The Office of Management and Budget has exempted this action from 
Executive Order 12866 review.

C. Regulatory Flexibility Act

    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.
    EPA's actions under section 502 of the Act do not create any new 
requirements, but simply address operating permits programs submitted 
to satisfy the requirements of 40 CFR part 70. Because this action does 
not impose any new requirements, it does not have a significant impact 
on a substantial number of small entities.

D. 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

[[Page 49103]]

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 action proposed today 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.

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

    Dated: September 9, 1996.
Chuck Clarke,
Regional Administrator.
[FR Doc. 96-23785 Filed 9-17-96; 8:45 am]
BILLING CODE 6560-50-P