[Federal Register Volume 61, Number 235 (Thursday, December 5, 1996)]
[Rules and Regulations]
[Pages 64463-64475]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30865]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 61, 63 and 70
[AD-FRL-5658-4]
Clean Air Act Final Interim Approval, Operating Permits Program;
State of Alaska and Clean Air Act Final Approval in Part and
Disapproval in Part, Section 112(l) Program Submittal; State of Alaska
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final Interim Approval, and Final Approval in Part and
Disapproval in Part.
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SUMMARY: EPA grants final 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 grants final 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.
EFFECTIVE DATE: December 5, 1996.
ADDRESSES: Copies of the State's submittal and other supporting
information used in developing the final interim approval, and the
approval in part and disapproval in part, are available for inspection
during normal business hours at the following location: U.S.
Environmental Protection Agency, Region 10, 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.
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 considered these supplemental submittals to be a material change to
ADEC's May 31, 1995, program submittal and extended its official review
period by 8 months to January 31, 1997. On September 18, 1996, EPA
proposed to grant interim approval to Alaska's title V program. See 61
FR 49091. EPA received several comments on its proposal, which are
discussed in section II below.
[[Page 64464]]
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 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 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.
On May 17, 1995, the State requested delegation for all existing
applicable 40 CFR parts 61 and 63 regulations as adopted by reference
into 18 AAC 50.040. The State also requested authority to implement and
enforce all future 40 CFR part 61 and 63 regulations which Alaska
adopts by reference into State law. Finally, the State requested
approval under the authority of 40 CFR 63.93 to substitute its State
preconstruction review program regulations for the federal
preconstruction review regulations in 40 CFR 63.5(b)(2)-(4) and 63.54,
as these rules apply to newly constructed major affected sources or the
construction of a new emission unit. The State amended its May 17, 1995
delegation request on February 27, 1996 and July 5, 1996 to include
additional part 61 and part 63 regulations adopted by reference into 18
AAC 50.040.
In this notice, EPA is taking final action to promulgate interim
approval of the operating permits program for the State of Alaska, and
to approve in part and disapprove in part the Alaska program for
implementing section 112 of the Act. EPA is also responding to comments
received on the September 18, 1996, proposal.
II. Changes to Regulations and Response to Comments
A. Changes to Alaska's Regulations
On October 17, 1996, ADEC submitted a final version of the State's
regulations which were adopted on September 17, 1996. These regulations
included numerous editorial changes from the version that was submitted
on August 2, 1996. EPA has reviewed this final version and finds, with
the exceptions noted below in the response to public comment, that the
editorial changes do not affect any of the preliminary decisions made
in EPA's notice of proposed interim approval.
B. Response to Public Comment on Proposed Interim Approval of Alaska's
Title V Program
Most of the comments EPA received on the September 18, 1996,
Federal Register notice addressed EPA's proposed interim approval of
Alaska's title V program. All of the comments supported interim
approval of the program. EPA received comments from four oil and gas
companies, two branches of the Department of Defense, a coalition of
Alaska industries, and the Alaska Department of Environmental
Conservation. The following summarizes the comments received and
provides EPA's responses thereto.
1. Comments Relating to the State Implementation Plan
Several comments addressed regulations that do not relate to
Alaska's title V program. Two commenters requested that EPA exclude 18
AAC 50.100(b) through (e) from approval under title V. EPA agrees that
these provisions, which regulate sulfur dioxide emissions from nonroad
engines, are not related to title V operating permits requirements and
are not covered under this interim approval. These provisions will be
acted on by EPA in a separate rulemaking if they are re-submitted by
the State as a revision to the Alaska state implementation plan (SIP).
One commenter voiced opposition to the fuel restrictions for
nonroad engines contained in 18 AAC 50.100(b) through (e). As discussed
above, these provisions are not title V requirements and have not been
proposed for approval by EPA as part of Alaska's title V program.
Therefore, the comment is not germane to this action.
Similarly, one commenter voiced concern with respect to a change to
the State's opacity standards and the State's new provisions for excess
emissions due to routine operations like soot blowing, start-up, or
shutdown. Again, these provisions are not title V requirements and have
not been proposed for approval by EPA as part of Alaska's title V
program. Therefore, the comment is not germane to this action.
2. Sources Subject to the Federally-Approved Program
One commenter requested that EPA clarify in its final action that
operating permits required for the Anchorage Terminal bulk loading
facility under 18 AAC 50.325(d) would not be considered federal title V
operating permits but only State operating permits. EPA disagrees. Part
70 states, ``A State program with whole or partial approval under this
part must provide for permitting of at least the following sources.''
40 CFR 70.3(a) (emphasis added). Therefore, a State is authorized to
include in its federally-approved title V program more sources than are
required to be covered under 40 CFR 70.3. 18 AAC 50.325 sets forth the
categories of sources that are required to obtain operating permits
under State law and this entire section has been submitted to EPA as
part of Alaska's title V submittal. There is nothing in the submittal
from the State nor in the State's rules themselves that would
distinguish sources listed in 18 AAC 325(d) from other sources required
to obtain federal title V permits. (Compare, for example, the language
of 18 AAC 50.325(d) to that of 50.325(c), which covers sources subject
to parts C and D permits and which are also required to have title V
permits under section 502(a) of the Act and 40 CFR 70.3.) Although the
State could clearly amend its regulations and program submittal in the
future to exempt from its title V program sources that are not required
to have title V permits as a matter of federal law, EPA can only act on
what has been formally submitted at this time. Therefore, until such
time as the Alaska program is revised, all sources required to have
operating permits under 18 AAC 50.325 are required to have federal
operating permits under title.
3. Definition of ``Regulated Air Contaminant''
In the September 18, 1996, proposal, EPA stated that the Alaska
definition of ``regulated air contaminant'' in AS 46.14.990(21)
appeared to be narrower in scope than EPA's definition of ``regulated
air pollutant'' in 40 CFR 70.2. See 61 FR 49094-49095. The State of
Alaska questioned whether this issue is an ``applicability'' issue, the
heading
[[Page 64465]]
EPA used for the discussion in the September proposal. EPA believes the
State misunderstood EPA's use of the term ``applicability.'' EPA agrees
that the difference in the two definitions does not affect the sources
that are required to obtain a title V operating permit. The narrower
scope of the Alaska definition, however, does impact the applicability
of the requirements of Alaska's title V rules. As the State's own
analysis shows, the applicability of certain requirements, specifically
requirements for permit applications and off-permit changes, will be
affected by the difference in the two definitions. Therefore, as
discussed in the proposed interim approval, EPA still believes that the
Alaska definition of ``regulated air contaminant'' is inconsistent with
EPA's definition of ``regulated air pollutant'' and must be changed to
receive full approval. EPA is clarifying, however, that this difference
does not affect the sources required to have permits, but rather the
applicability of certain requirements of the permitting program to
sources required to have title V permits.
4. EPA-Issued Permits
One commenter requested clarification on EPA's discussion of the
status of EPA-issued PSD permits. As discussed in the proposed interim
approval, terms and conditions of EPA-issued PSD permits are applicable
requirements which must be included in title V permits and the Alaska
rules include the necessary provisions to ensure this occurs. See 61 FR
49093. The commenter expressed concern, however, that many terms and
conditions of the old EPA-issued permits are obsolete, environmentally
insignificant, or otherwise no longer appropriate, and requested
clarification as to how such terms could be excluded from the title V
permit or revised through the title V permitting process. EPA agrees
that terms and conditions in some EPA-issued PSD permits and old
preconstruction permits issued by States may no longer be appropriate
or applicable, and therefore need not be included in a source's title V
permit. As the commenter noted, EPA has issued guidance with respect to
how sources and permitting authorities may utilize the title V
permitting process to address this issue. See Section II.B.7 of the
``White Paper for Streamlined Development of Part 70 Permit
Applications,'' from Lydia N. Wegman to Air Office Directors, dated
July 10, 1995 (White Paper No. 1). This memorandum provides guidance on
how to identify and address terms and conditions which are obsolete,
environmentally insignificant, or otherwise no longer appropriate.
White Paper No. 1 clearly states, however, that the title V permit
issuance process cannot be used to revise terms and conditions that
still clearly apply to the source. Such revisions must be made using
revision procedures under the applicable new source review program, but
may be done concurrently with the title V permit issuance process. EPA
commits to working with the State and with sources in Alaska to
identify provisions of EPA-issued PSD permits that are obsolete,
environmentally insignificant, or otherwise no longer appropriate, and
to act expeditiously on requests for permit revisions.
5. Authority to Implement Section 112 Requirements
In the September 18, 1996, Federal Register notice, EPA noted that
Alaska lacked authority to implement several section 112(l)
requirements, but believed that these deficiencies were not so serious
as to warrant disapproval. 61 FR 49095. Alaska commented that the
September 17, 1996, final version of the adopted State rules included
the adoption by reference of 40 CFR 61.150 and 40 CFR 61.154 and asked
that EPA remove the specific interim approval conditions related to
these provisions. EPA agrees that the adoption of these two provisions
remedies the deficiencies regarding implementation and enforcement of
the asbestos NESHAP for waste disposal and active waste disposal
sites.1 Alaska has still not adopted, however, the provisions of
40 CFR part 61, subpart I (radionuclide NESHAP for facilities licensed
by the Nuclear Regulatory Commission). Therefore, the State still lacks
sufficient authority to implement all applicable section 112
requirements for title V sources in Alaska. As such, EPA concludes that
the Alaska program must be granted interim rather than full approval
because of this deficiency.
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\1\ As discussed in section III.B.1. below, however, EPA has
continuing concerns regarding the lack of training of ADEC staff who
will be performing asbestos inspections.
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6. Insignificant Emission Units.
In the September 18, 1996, Federal Register notice, EPA raised two
concerns with respect to Alaska's insignificant source regulations. See
18 AAC 50.335(m), 50.335(q)-(v), and 50.335(m). EPA received comments
on both issues.
a. ``Director's discretion'' provision. EPA's first concern with
Alaska's insignificant source regulations related to 18 AAC 50.335(u),
which contains a list of sources that may be determined to be
insignificant on a case-by-case basis. EPA stated that, before EPA
could approve such a ``director's discretion'' provision, Alaska must
demonstrate that each of the sources on the list would qualify as
``insignificant'' in all cases. 61 FR 49095. One commenter objected to
this concern, stating that the list of sources in 18 AAC 50.335(u)
narrowly defines the type and size of sources eligible for case-by-case
exemption and that EPA's concern with over broad delegation was
unwarranted. EPA continues to believe for the reasons discussed at 61
FR 49095 that 18 AAC 50.335(u), as submitted at the time of EPA's
proposed action, was unapprovable. As the commenter notes, however,
Alaska has since revised 18 AAC 50.335(u) and eliminated all but two of
the sources eligible for case-by-case treatment as insignificant
sources: (1) NPDES permitted ponds and lagoons used solely for settling
solids and skimming oil and grease; and (2) coffee roasters with
capacity of less than 15 pounds per day of coffee. See 18 AAC 50.335(u)
(adopted September 17, 1996). EPA agrees that Alaska has adequately
demonstrated that these two sources could qualify as insignificant
sources in all cases. Therefore, the concern raised by EPA in the
proposal regarding the scope of 18 AAC 50.335(u) has been resolved and
is no longer a basis for interim approval.
b. Exemption from monitoring, recordkeeping, reporting, and
compliance certification requirements. The second concern raised by EPA
in the proposed interim approval was Alaska's express exemption of
insignificant sources that are subject only to generally applicable
requirements from the monitoring, recordkeeping, reporting, and
compliance certification requirements set forth in 40 CFR 70.6. See 18
AAC 50.350(m)(3). In the proposal, EPA explained why it believes that
part 70 does not allow such sources to be exempt from the monitoring,
recordkeeping, reporting, and compliance certification requirements of
40 CFR 70.6, but that part 70 instead provides only a limited exemption
from some permit application requirements for insignificant sources. 61
FR 49096-49097.
EPA also discussed EPA's March 5, 1996, guidance document entitled
``White Paper Number 2 for Improved Implementation of the Part 70
Operating Permits Program'' from Lydia N. Wegman, Deputy Director,
Office of Air Quality Planning and Standards, to Regional Air Directors
(``White Paper No. 2''), which specifically addresses how title V
permits can address
[[Page 64466]]
insignificant emission units and activities subject to generally
applicable requirements in a State implementation plan in a manner that
minimizes the burden associated with the permitting of such emission
units and activities. Briefly summarized, White Paper No. 2 makes clear
that it is within the permitting authority's discretion to decide the
extent to which 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, based on the likelihood that a violation could
occur from those emission units or activities. 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. 61 FR 49096.
EPA also discussed in the September 18, 1996, proposal the effect
of the recent Ninth Circuit decision addressing EPA's action on similar
insignificant source regulations submitted as part of Washington's
title V program. Western States Petroleum Association v. EPA, 87 F.3d
280 (9th Cir. 1996) (``WSPA''). The WSPA case concerned EPA's interim
approval of the Washington State operating permits program, which also
contains an exemption from monitoring, recordkeeping, reporting, and
compliance certification requirements for insignificant emission units
and activities subject to generally applicable SIP requirements.\2\ See
60 FR 62992, 62996 (December 5, 1995) (final interim approval of
Washington title V program based on exemption of insignificant emission
units from certain permit content requirements); 60 FR 50166, 50171
(September 28, 1995) (proposed interim approval of Washington's title V
program on same basis). The petitioners in the WSPA case 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 on Washington's insignificant emission units regulations was
consistent with part 70. The Court did, however, find that EPA had
acted inconsistently in its title V approvals, and had failed to
explain the departure from precedent the Court perceived in the
Washington interim approval. The Court then ordered EPA to fully
approve Washington's insignificant emission unit regulations. Since the
September 18, 1996, proposal, the Ninth Circuit has denied EPA's
request for rehearing on the remedy ordered by the Court.
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\2\ The Alaska insignificant source provisions are modeled
closely after the Washington provisions.
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In the Alaska proposal, EPA explained in detail why it believed its
inconsistencies in approving State insignificant emission unit
provisions in other title V permit programs were minimal. EPA first
demonstrated that, of the eight title V programs cited by the WSPA
Court as inconsistent with EPA's decision on Washington's regulations,
four of them (Massachusetts, North Dakota, Knox County, Tennessee, and
Florida) were in fact consistent with EPA's position that insignificant
sources subject to applicable requirements may not be exempt from
permit content requirements. EPA then stated that it was still
evaluating for consistency the other four programs cited by the Court
as inconsistent with EPA's decision on Washington's program (Hawaii,
Ohio, North Carolina, and Jefferson County, Kentucky) and that these
four programs may ultimately be determined to impermissibly exempt
insignificant emission units from permit content requirements. EPA
noted, however, that as of September 1996, EPA had given or proposed to
give full or interim approval to 113 State and local title V programs,
and that, at most, only Hawaii, Ohio, North Carolina, and Jefferson
County, Kentucky, presented inconsistencies with EPA's proposed action
on Alaska's insignificant source regulations. EPA concluded that these
four potential inconsistencies represented a relatively minor set of
deviations from EPA's normal policy as manifested in the vast majority
of title V program approvals and in White Paper No. 2. 61 FR 69096-
69097.
The commenter raised several issues with respect to EPA's proposal
that Alaska eliminate the exemption from monitoring, recordkeeping,
reporting, and compliance certification requirements for insignificant
sources subject to generally applicable requirements. First, the
commenter asserted that the Alaska insignificant source rules satisfy
all applicable gatekeepers set forth in part 70 and incorporated by
reference the positions stated in petitioners' briefs in the WSPA case
regarding the criteria for EPA review of State and local title V
programs. In essence, the commenter argued that part 70 allows a
permitting authority to exempt insignificant sources subject to only
generally applicable requirements from the monitoring, recordkeeping,
reporting, and compliance certification requirements of 40 CFR 70.6.
EPA has addressed at length its position that part 70 does not
allow the exemption of insignificant sources subject to generally
applicable requirements from the monitoring, recordkeeping, reporting,
and compliance certification requirements of 40 CFR 70.6 in its
decisions on the Washington title V program, the Tennessee title V
program, the proposal on the Alaska title V program and the United
States briefs filed in the WSPA case. See 61 FR 49091 (proposed interim
approval of Alaska title V program); 61 FR 39335 (July 29, 1996) (final
interim approval of Tennessee title V program); 61 FR 9661 (March 11,
1996) (proposed interim approval of Tennessee title V program); 60 FR
62992 (final interim approval of Washington title V program); 60 FR
50166, 50171 (September 28, 1995) (proposed interim approval of
Washington title V program).\3\ EPA incorporates by reference the
analysis set forth in those documents. In summary, EPA believes that 40
CFR 70.5 authorizes a permitting authority to grant certain relief for
insignificant emission units from title V permit application
requirements so long as no application omits any information necessary
to determine the applicability of or to impose any applicable
requirement or any required fee. Nothing in part 70, however,
authorizes a permitting authority to exempt from the title V permit
applicable requirements that apply to insignificant emission units; any
monitoring, recordkeeping, or reporting necessary to assure compliance
with those applicable requirements; and the requirement to certify
compliance with all permit terms and conditions, including those that
apply to insignificant emission units.
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\3\ The briefs filed by the United States in the WSPA case are
in the docket.
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Next, the commenter disagreed with EPA's conclusion that EPA has
approved programs that exempt insignificant emission units subject to
applicable requirements from some or all permit content requirements in
only a handful of cases. Specifically, the commenter argued that the
plain language of the Massachusetts and Florida programs exempt
insignificant emission units from permit content requirements and that
EPA has since taken or proposed action on three additional programs
that exempt insignificant emission units from permit content
requirements. The commenter also stated that the majority of the 113
programs on which EPA has taken or proposed full or interim approval
are silent on whether insignificant emission units must be regulated in
title V
[[Page 64467]]
permits and that the decision to exempt such units from monitoring,
recordkeeping, reporting, and compliance certification will therefore
be made at the time of permit issuance in most of those States.
EPA disagrees with the commenter's assertions. With respect to the
Massachusetts and Florida title V programs, EPA acknowledged in the
September 18, 1996, Federal Register notice that those programs do
appear to exempt insignificant emission units from permit content
requirements. That does not end the inquiry, however. In acting on the
Massachusetts program, EPA carefully examined the list of exempt
activities and determined that the listed activities either named
activities that are not subject to applicable requirements or that any
applicable requirement implicated by a listed activity was not designed
to be implemented by addressing emission units in the permit (such as
open burning activities). See 61 FR 49096 and ``Addendum to Technical
Support Document for Proposed Action on Alaska Title V Program
Insignificant Emission Units and Activities,'' dated August 22, 1996.
With respect to Florida, EPA explained its view that, 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 EPA's
interim approval of Florida's program. 61 FR 49097 and ``Addendum to
Technical Support Document for Proposed Action on Alaska Title V
Program Insignificant Emission Units and Activities,'' dated August 22,
1996. In short, EPA believes that its decisions on the Massachusetts
and Florida title V programs are consistent with its position that part
70 does not allow insignificant emission units subject to applicable
requirements to be exempted from monitoring, recordkeeping, reporting,
or compliance certification requirements.
EPA also disagrees with the commenter's unsupported and unexplained
assertion that EPA's final or proposed actions on the Michigan, New
Hampshire, and South Coast Air Quality Management District (South
Coast) programs demonstrate that EPA continues to give full approval to
title V programs that exempt insignificant emission units from permit
content requirements.\4\ EPA has carefully reviewed the relevant
portions of the regulations, Federal Register notices, and supporting
dockets for each these three programs. Each of these programs does
contain a limited exemption from certain permit application
requirements or the requirement to list certain equipment in the
permit. EPA is unaware of any provision in any of these State programs,
however, that exempts insignificant emission units subject to
applicable requirements from the permit content requirements of 40 CFR
70.6. For a more detailed discussion of EPA's conclusion that the
Michigan, New Hampshire, and South Coast programs are consistent with
EPA's action on the Alaska program, please refer to the ``Addendum to
Technical Support Document for Final Action on Alaska Title V Program
Insignificant Emission Units and Activities'' in the docket.
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\4\ The commenter did not explain the assertion that EPA's
proposed action on the Alaska program was inconsistent with EPA's
proposed or final action on the Michigan, New Hampshire, and South
Coast programs. EPA is therefore left to guess at the commenter's
concerns.
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EPA agrees with the commenter that the majority of the 113 title V
programs on which EPA has taken or proposed full or interim approval do
not expressly state that insignificant emission units subject to
applicable requirements are subject to permit content requirements. EPA
vigorously disagrees with the inference drawn by the commenter from
this fact, namely, that these title V programs implicitly or in
practice exempt insignificant emission units from permit content
requirements. EPA has made clear in the Federal Register notices acting
on the Washington and Tennessee title V programs that part 70 does not
allow the exemption of insignificant emission units subject to
applicable requirements from the permit content requirements of 40 CFR
70.6. EPA also discussed this position at length in White Paper No. 2.
EPA's approval of State and local title V programs has been based on
the assumption that the State and local program regulations, which in
many cases closely track the language in 40 CFR 70.6, will be
interpreted in the same way that EPA has interpreted part 70. In
addition, except perhaps in the handful of cases in which EPA may have
approved programs which improperly exempt insignificant emission units
with applicable requirements from permit content requirements, EPA has
required that permits issued for insignificant emission units subject
to applicable requirements comply with the requirements of section
70.6.
In short, where a State or local title V program does not
specifically exempt insignificant emission units from permit content
requirements, EPA has assumed that no such exemption will be inferred
and has therefore not objected to this aspect of the program. Where EPA
has been concerned that a State or local program could be interpreted
to provide such an exemption from permit content requirements, EPA has
clarified its expectation in the Federal Register notice acting on such
programs that the permitting authorities must ensure that all permits
issued ``assure compliance with all applicable requirements at the time
of permit issuance.'' See 60 FR 32603, 32608 (June 23, 1995); 60 FR
44799, 44801 (August 29, 1995). If, during implementation of such
programs, permits are issued which do not comply with the requirements
of section 70.6 with respect to insignificant emission units subject to
applicable requirements, EPA would consider this grounds for objecting
to individual permits, 40 CFR 70.8(c)(1), as well as grounds for
withdrawing approval of such State or local programs, 40 CFR
70.10(c)(1)(ii)(B).
In summary, EPA believes that there are only a handful of programs
out of the more than 113 that EPA has acted or proposed action on as of
this date that either have been confirmed to be inconsistent with part
70 or for which consistency is still an unresolved issue. These are
Hawaii, Ohio, North Carolina, and Jefferson County, Kentucky.5 In
other cases, EPA believes that it has been consistent in acting in
accordance with the part 70 regulations and EPA's stated policy, as
evidenced in the Washington and Tennessee title V interim approvals and
White Paper No. 2, of not giving full approval to title V programs that
exempt insignificant emission units subject to applicable requirements
from some or all permit content requirements.
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\5\ This list excludes those programs where the inconsistency
was identified as an interim approval issue.
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EPA stated in its September 18, 1996, proposal on Alaska's program
that EPA would determine which title V programs are in fact
inconsistent with the part 70 requirements regarding inclusion of all
applicable requirements in permits, and would act to either bring those
programs into consistency with part 70 or to explain any departures.
EPA has given further consideration to the treatment of insignificant
emission units in title V permits in general since the September 18,
1996, proposal and
[[Page 64468]]
plans to address the issue, as well as any potentially inconsistent
programs, as follows. EPA intends to publish a notice of proposed
rulemaking that will serve two purposes. First, it will propose to add
clarifying language to 40 CFR 70.6 that will make clear EPA's position
that insignificant emission units that are subject to applicable
requirements may not be excluded from part 70 permits and permit
content requirements. EPA believes this requirement is clear under the
current part 70 regulations, but wishes to put to rest the continuing
dispute over the meaning of the current regulations. In this regard,
the notice will also reiterate the guidance EPA has provided in White
Paper No. 2 regarding possibilities for streamlined treatment of
insignificant emission units subject only to generally applicable
requirements.
Second, the notice will solicit comment as to whether part 70
should be revised to allow for an approach similar to that taken in the
State of Washington and Alaska. EPA believes at this time that it has
answered the legitimate implementation concerns associated with this
issue. However, some States continue to request additional flexibility.
EPA believes these requests deserve a fair hearing, and so will request
comments explaining exactly what implementation concerns remain, and
how part 70 might be revised to address these concerns. EPA will also
request comment on how, if part 70 were to be amended, rule language
could be crafted to retain appropriate limitations and safeguards.
Specifically, EPA will seek to understand how part 70 could be
structured so that (1) excluded units would be truly small and (2) the
flexibility to exclude subject units would be limited to requirements
that are truly generic, that is, universally applicable.
EPA expects that this rulemaking will result in either the addition
of clarifying language that confirms EPA's interpretation of the
current part 70 regulations, or in revisions to part 70 that will allow
a new level of flexibility for insignificant emission units subject to
generally applicable requirements. In either case, programs that are
inconsistent with part 70 as it stands at the conclusion of this
forthcoming rulemaking will be required to submit program corrections
within a specified time period. Although EPA has authority to require
inconsistent programs to make corrections more expeditiously, EPA does
not wish to make States conduct serial program adjustments on the same
issue. Given the narrow scope of the forthcoming rulemaking, EPA
believes it can be finalized relatively quickly.
EPA believes that it can best ensure the consistency required by
the Ninth Circuit in the WSPA case by requiring Alaska to meet the same
requirements under the current part 70 regulations that EPA has applied
to all but perhaps a handful of title V programs, namely, that
insignificant emission units subject to applicable requirements may not
be exempted from the monitoring, recordkeeping, reporting or compliance
certification requirements of 40 CFR 70.6. As discussed below, Alaska
will have 18 months to address this and all other interim approval
issues identified in this final interim approval. This should give EPA
sufficient time to complete the forthcoming rulemaking discussed above
for insignificant emission units and also give Alaska sufficient time
to respond to this forthcoming rulemaking before expiration of the two
year interim approval period.
c. Additional issues on insignificant emission units. One commenter
raised several other concerns regarding EPA's proposed interim approval
of Alaska's regulations for insignificant sources. The commenter stated
that EPA incorrectly asserted that 18 AAC 50.335(m) requires the
inclusion of emission data, such as monitoring data, for insignificant
emission units in the final permit. EPA is uncertain of the language in
the proposal that led to the commenter's concern. 18 AAC 50.335(m)
requires a permit application to contain reasonable documentation
consistent with the requirements of Alaska's title V regulations to
verify the accuracy and adequacy of the information submitted in the
permit application, including calculations on which the information is
based. That provision also states that an application may not omit
information needed to determine the applicability of or to impose any
applicable requirement or to impose any fee, the so-called ``applicable
requirements gatekeeper'' required by 40 CFR 70.5. EPA stated that this
``applicable requirements gatekeeper'' applied to insignificant
sources, 61 FR 49095, and it is perhaps this language that concerned
the commenter. EPA did not intend, by this statement, to imply that a
permit application must contain all information identified by 18 AAC
50.335(m), such as emission data, for insignificant sources. Instead,
EPA intended to emphasize that the requirement that an application may
not omit information necessary to determine the applicability of or to
impose an applicable requirement or a fee applies to insignificant
sources as well as to other sources. This is made clear in 18 AAC
50.335(q)(2) through (4) as well.
The commenter also asserted that Alaska's regulations for
insignificant sources adequately ensure that insignificant sources that
increase emissions so as to cause them to fall outside of the
regulatory definition of an insignificant source must then be treated
as significant and be included in the operating permit. EPA agrees that
the Alaska program is adequate to ensure that insignificant sources
which increase emissions so as to be considered significant will be
appropriately addressed in the operating permit.
The commenter next states that ``EPA's position is that a facility
must forever verify that (insignificant sources) do not increase their
emissions and violate SIP requirements.'' The commenter suggests that
EPA's position that insignificant sources may not be exempt wholesale
from monitoring, recordkeeping, reporting and compliance certification
requirements means that sources will have to constantly monitor
insignificant sources. EPA has never stated or implied that facilities
must engage in constant and costly monitoring of insignificant sources.
To the contrary, in acknowledgement of the legitimate concern raised by
the commenter, EPA has given clear guidance on how insignificant
sources subject to applicable requirements can be addressed in title V
permits in a manner that minimizes the burden associated with the
permitting of such sources. See White Paper No. 2.
The commenter next states that ``EPA would be satisfied if Alaska
established a regulatory presumption that (insignificant sources)
normally maintain emissions that are insignificant.'' The commenter
appears to have misinterpreted some language in the September 18, 1996,
proposal. EPA stated that a State could meet the monitoring,
recordkeeping, and reporting requirements for insignificant sources
subject to generally applicable requirements by establishing a
regulatory presumption that no additional monitoring, recordkeeping,
and reporting is necessary for such sources to assure compliance, so
long as the State had the authority to impose such requirements on a
case-by-case basis if necessary to ensure compliance. 61 FR 49096 n. 4.
This is one method EPA has suggested by which a State can meet the
monitoring, recordkeeping, and reporting requirements of 40 CFR 70.6
for insignificant sources in a
[[Page 64469]]
manner that imposes minimal burden on sources and the permitting
agency.
The commenter also stated that the present Alaska program
sufficiently prevents insignificant sources from violating applicable
requirements. Enhancing and ensuring compliance is indeed a major goal
of the title V program. Congress and EPA insisted on certain program
elements, however, to achieve that goal. As discussed above, part 70
requires permits to contain terms and conditions necessary to assure
compliance with all applicable requirements and requires sources to
certify compliance with all permit terms and conditions. Part 70
contains no exemption for insignificant emission units subject to
applicable requirements. The Alaska program contains such an exemption
and therefore does not meet the requirements of part 70 for permit
content.
7. Inspection and Entry Requirements
One commenter objected to EPA's concern that Alaska's entry and
inspection requirements do not appear to meet the requirements of 40
CFR 70.6(c)(2). That provision states that all title V permits must
contain ``(i)nspection and entry requirements that require that, upon
the presentation of credentials and other documents as may be required
by law, the permittee shall allow the permitting authority or an
authorized representative'' to conduct specified entry, inspection,
copying, and sampling functions (emphasis added).
The comparable provision of Alaska law requires title V permits to
contain the following provision:
The permittee shall allow an officer or employee of the
department or an inspector authorized by the department, upon
presentation of credentials and at reasonable times with the consent
of the owner or operator to (conduct specified entry, inspection,
copying, and sampling functions).
18 AAC 50.345(7) (emphasis added). See also AS 46.14.515 (statute
authorizing inspections of air emission sources ``upon presentation of
credentials and at reasonable times with the consent of the owner or
operator) (emphasis added); AS 46.03.02(6) (same). Where an owner or
operator does not grant consent, the permitting authority must obtain a
warrant under AS 46.03.860.
In the September 18, 1996, Federal Register notice, EPA expressed
concern that Alaska law explicitly required that owners or operators
consent to an inspection or that the Department obtain a warrant. 61 FR
49097. EPA therefore proposed to require, as a condition of full
approval, that Alaska demonstrate to EPA's satisfaction that its
provisions for entry and inspection meet the requirements of part 70.
In objecting to EPA's proposal, the commenter stated that the
``other documents as may be required by law'' language of 40 CFR
70.6(c)(2) includes ``the requirement under state law to present a
warrant prior to entry in cases where consent has been withheld by an
owner or operator.'' The commenter further stated that Alaska law
simply codifies the fundamental constitutional protections against
unreasonable search and seizure.
The language in part 70 concerning authority for inspection and
entry is almost identical to the language that has been required in
EPA- and State-issued permits under the Clean Water Act, the Resource
Conservation and Recovery Act (RCRA), and the Underground Injection
Control (UIC) program since 1980. See 40 CFR 122.41(i); 144.51(i);
270.30(i); see also 45 FR 33290 (May 19, 1980). In responding to
commenters' concerns in the promulgation of the Clean Water Act, RCRA,
and UIC regulations that this language did not incorporate a
requirement for the presentation of a warrant, EPA stated:
Several commenters stated that the provision should incorporate
the legal principles set forth in Marshall v. Barlow's, Inc., 436
U.S. 307 (1978), relating to the necessity for presentation of a
warrant under appropriate circumstances. Some commenters feared that
by including entry and inspection requirements as a permit
condition, EPA might be requiring permittees to waive certain rights
under the Fourth Amendment to the United States Constitution. It is
not EPA's intent to deprive any permittee of its Fourth Amendment
rights as interpreted by Supreme Court decisions. However, we have
retained the general wording requiring ``presentation of credentials
and such other documents as may be required by law'' because of the
complexity and changing nature of this area of law, and the
possibility that any particular formulation or citation could be
inaccurate or inapplicable.
45 FR 33304-33305.
That the ``other documents as required by law'' language is
included in EPA-issued permits issued under most EPA programs 6
makes clear that the relevant inquiry is what documents are required as
a matter of Federal law as a condition of the right to enter and
inspect a title V source and not, as the commenter asserts, what other
documents may be required as a matter of State law. This is also clear
from EPA's response to comments quoted above. EPA believes the same is
true under 40 CFR 70.6(c)(2). The purpose of title V and part 70 is to
set forth minimum requirements for approval of State programs. EPA's
clear intent to set the Federal requirements for entry and inspection
as the minimum standard in order to prevent States from imposing
additional restrictions on the permitting authority's right to enter
and inspect. Thus, for example, to the extent a State requires a
warrant as a condition of entry where none is required as a matter of
Federal law, EPA believes the State program would not qualify for full
title V approval. Similarly, if a State imposes restrictions on
obtaining a warrant that are more burdensome than the requirements for
obtaining a warrant under Federal law, the State program would not
qualify for full approval.
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\6\ The same language is also used in the regulation setting
forth the requirements for title V permits issued by EPA under part
71. See 40 CFR 71.6(c)(2).
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EPA does not necessarily agree that Marshall v. Barlow's precludes
warrantless inspections under section 114 of the Clean Air Act. See New
York v. Burger, 482 U.S. 691 (1987) (warrantless search of automobile
junkyard conducted pursuant to a State statute authorizing inspection
of such commercial property falls within exception to the warrant
requirement for administrative inspections of pervasively regulated
industries). EPA's long-standing policy in conducting inspections under
the Clean Air Act, however, is to first seek the consent of the owner
or operator before entering and inspecting a facility and, if such
consent is denied, to obtain a warrant to confirm EPA's statutory
authority to enter and inspect. See Memorandum entitled ``Effect of
Supreme Court Decision in Marshall v. Barlow's, Inc., on EPA
Information Gathering Authority,'' from EPA General Counsel to
Assistant Administrators, dated June 29, 1978 (hereinafter, ``Barlow
OGC Memo''); Memorandum entitled ``Conduct of Inspections After the
Barlow's Decision,'' from EPA Assistant Administrator for Enforcement
to Regional Administrators, dated April 11, 1979 (hereinafter, ``Barlow
OE Memo''). This is based on EPA's belief that it is less resource
intensive in the long run to take the precautionary action of obtaining
a warrant than it would be to litigate the issue under each of the
environmental laws.
Although Alaska law, at first glance, appears consistent with EPA's
policy, EPA remains concerned that Alaska law may be more restrictive
than federal law. There are several areas where a right of warrantless
entry clearly exists under federal law. For example, a warrantless
inspection is permissible in emergencies, such as situations involving
potential imminent hazards or
[[Page 64470]]
the potential destruction of evidence. See Camera v. Municipal Court,
387 U.S. 523 (1967); see also Barlow OGC Memo, p. 2, n. 4; Barlow OE
Memo, p. 5. Furthermore, under the ``open fields'' and ``plain view''
doctrines, observations by inspectors of things that are able to be
seen by anyone in lawful position or place to make such observations do
not require a warrant. See Dow Chemical Company v. United States, 476
U.S. 227, 238 (1986); Oliver v. United States, 466 U.S. 170, 179
(1984); Reeves Brothers, Inc. v. EPA, No. 94-0053-L (W.D. Va. April 11,
1995); see also Barlow OE Memo, p. 6. The express requirement in AS
46.14.515 and 18 AAC 50.345(7) that an owner or operator consent to an
inspection could be interpreted to constrain these clear exceptions to
the warrant requirement. For example, Alaska law could be interpreted
to require the consent of an owner or operator before a Department
inspector enters property that would otherwise be classified as ``open
fields'' and from which an inspector would be authorized under Federal
law to gather information and conduct observations without a warrant.
Moreover, as discussed above, warrants are not required for
administrative searches of pervasively regulated industries under
certain circumstances. See New York v. Burger, 482 U.S. 691. In
addition, an Alaska Supreme Court case cited by the Alaska Attorney
General as well as the commenter states that the protections afforded
by the Alaska Constitution against warrantless entry are greater than
provided by the Fourth Amendment. See Woods and Rhode, Inc. v.
Department of Labor, 565 P.2d 138, 148 (Alaska 1977). EPA therefore
continues to believe that Alaska must demonstrate to EPA's
satisfaction, as a condition of full approval, that the restrictions on
its authority to enter, inspect, copy records, and sample do not exceed
the restrictions that apply as a matter of federal law under 40 CFR
70.6(c)(2).
8. Compliance Certification
In the proposal, EPA stated that Alaska's provisions regarding
compliance certification do not appear to comply with the requirements
of 40 CFR 70.6(c)(5), which requires compliance certification ``with
terms and conditions contained in the permit, including emission
limitations, standards, and work practice requirements.'' The Alaska
regulations require compliance certification only with specified
requirements. See 61 FR 49098. One commenter stated that the phrase
``including emission limitations, standards, or work practices'' in 40
CFR 70.6(c)(5) is an exclusive list of the conditions in a permit that
require certification. EPA vigorously disagrees. The phrase must be
read in context of the entire provision, which states that a permit
shall contain ``Requirements for compliance certification with terms
and conditions contained in the permit, including emission limitations,
standards, or work practices.'' (emphasis added). The phrase ``terms
and conditions contained in the permit'' is all inclusive and covers
all applicable requirements and other provisions required by part 70 to
be contained in a permit, not just emission limitations, standards, or
work practices. For example, a requirement in 40 CFR part 60 that a
source install, maintain, and operate continuous emission monitors in
conformance with certain performance specifications is a monitoring
requirement of an applicable requirement that requires a compliance
certification. Similarly, compliance with ``gapfilling'' monitoring,
recordkeeping, or reporting required under 40 CFR 70.6(a) is a part 70
requirement that requires certification.
In further support of its position, the commenter points to
language in 40 CFR 70.6(c)(5)(iii)(A) stating that compliance
certifications must include an ``identification of each term or
condition of the permit that is the basis of the certification.'' The
commenter believes this language implies that not all terms and
conditions need be identified in the certification. Again, EPA
disagrees. It would be both unreasonable and inconsistent with section
504(c) of the Act if a source was not required to certify compliance
with otherwise applicable requirements and part 70 requirements
contained in a title V permit. Therefore, EPA maintains that the Alaska
provisions for compliance certification fail to comply with the
requirements of 40 CFR 70.6(c)(5) and must be revised in order to
receive full approval.
9. Affirmative Defense for Emergencies
In the proposal, EPA stated that Alaska's affirmative defense for
unavoidable emergencies, malfunctions, and nonroutine repairs was
broader than the affirmative defense allowed under part 70 for
emissions in excess of technology-based standards due to emergencies
under 40 CFR 70.6(g) for two reasons, the definition of technology-
based standards and the reporting period. See 61 FR 49098. One
commenter argued that Alaska's emergency provisions are consistent with
40 CFR 70.6(g), although the commenter addressed only one the
definition of technology-based standard. Specifically, the commenter
stated that the use of the word ``primarily'' in the Alaska definition
of ``technology-based emission standard'' is consistent with part 70.
EPA disagrees. EPA defines a technology-based standard as one for which
the stringency of the standard is not based on considerations of air
quality impacts of the source or source category in question, but
instead based on a determination of what is technologically feasible.
59 FR 45530, 45559 (August 31, 1995). The Alaska definition, however,
could allow many SIP emission limitations to be considered to be
technology-based emission standards. The determination of emission
limitations needed to ensure attainment and maintenance of NAAQS
necessarily includes consideration of what is technologically feasible
for sources contributing to the air quality problem, and in many cases
the final emission limitations are based entirely on what is
technologically feasible. However, such SIP emission limitations are
considered to be health-based emission limitations and not technology-
based emission standards since they are specifically established to
ensure attainment and maintenance of the NAAQS. Furthermore, many
emission limitations in PSD permits are set at levels equivalent to
that of ``best available control technology'' (BACT) limits. However,
emission limits in PSD permits whose purpose is to protect the NAAQS
and PSD increments are considered health-based emission limitations,
even if they are identical in stringency to the BACT limits. Therefore,
EPA continues to believe that the Alaska emergency provisions are
inconsistent with the requirements of 40 CFR 70.6(g) and must be
revised in order to obtain full approval.7
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\7\ The commenter did not address EPA's concern that the Alaska
regulations allow sources more time than allowed by part 70 to
submit notice of an emergency to the permitting authority. See 61 FR
49098. This also remains as an interim approval issue.
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10. Minor Permit Modification Procedures
One commenter requested clarification regarding EPA's finding that
the State's provisions for minor permit modifications do not conform to
EPA's requirements regarding changes to monitoring, reporting, and
recordkeeping terms and conditions. EPA's regulations state that
``every relaxation of reporting or recordkeeping permit terms shall be
considered significant,'' 40 CFR 70.7(e)(4), and must be processed as a
significant permit modification. In contrast, the Alaska regulation
requires only changes
[[Page 64471]]
that ``materially alter or reduce'' the frequency, accuracy, or
precision of existing reporting requirements to be processed as a
significant permit modification. EPA expressed concern that the Alaska
program would allow a relaxation of reporting or recordkeeping
requirements to be processed as a minor permit modification so long as
the revision did not ``materially alter or reduce'' the frequency,
accuracy, or precision of existing reporting requirements. See 61 FR
49099. The commenter asked how reporting or recordkeeping could be
relaxed without materially altering or reducing the frequency,
accuracy, or precision of existing requirements. The term
``materially'' is defined in the Random House Dictionary of the English
Language as ``to an important degree; considerably.'' EPA therefore
believes that not every change that alters or reduces the frequency,
accuracy, or precision of existing requirements would be required to be
processed as a significant permit modification under Alaska law. As a
result, EPA continues to maintain that the Alaska procedures for minor
permit modifications fail to comply with the provisions of 40 CFR
70.7(e) with respect to changes to reporting or recordkeeping
requirements.
C. Response to Public Comment on Proposed Section 112 Approval in Part
and Disapproval in Part
The only comments EPA received on its proposed actions under
section 112 were from the State of Alaska. The State commented on EPA's
belief that sources could ``net out'' of State preconstruction review
requirements, but could not avoid preconstruction review under the
federal program. See 61 FR 49102. The State appeared to agree with
EPA's interpretation on ``net outs'' but disagrees with EPA's
contention that 40 CFR 63.5(b) could be applicable to a source that
does not have the potential to emit hazardous air pollutants (HAPs) in
quantities greater than major source levels. Regarding the latter, EPA
has reviewed this issue in further detail and has concluded that, at
present, Alaska's interpretation is correct in that EPA has not set
lower quantity cutoffs for defining a major source. Therefore, EPA
believes this is no longer grounds for disapproval.
With respect to the fact that sources could ``net out'' of
preconstruction review as a matter of State law, Alaska has requested
that EPA grant partial approval under the authority of CAA section
112(l) and 40 CFR 63.93 to its rule substitution request in light of
the fact that Alaska does not have adequate authority to administer 18
AAC 50.300 for all potential situations where 40 CFR 63.5(b)(3) is
applicable. EPA is denying this request for two reasons: (1) Based on
previous experience with partial delegations in the PSD program, EPA
has found practical implementation of such a system to be cumbersome
and one which may place added liability on a source should it fail to
obtain approval from the proper agency. In this regard, in order to
obtain approval to substitute its State rule, Alaska must amend 18 AAC
50.300 so that it does not allow newly constructed major HAP sources to
``net out'' of state preconstruction review. (2) EPA does not yet have
the authority under section 112(l) of the CAA or 40 CFR part 63,
subpart E, to approve partial delegation requests of this nature.
III. Final Action and Implications
A. Title V
EPA is promulgating final interim approval of the operating permits
program submitted by Alaska on May 31, 1995, and supplemented on August
16, 1995, February 6, 1996, February 27, 1996, July 5, 1996, August 2,
1996, and October 17, 1996. The State must make the following changes
to receive full approval.\8\
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\8\ See the discussion in EPA's proposed interim approval for a
full discussion of EPA's findings as to why the Alaska program does
not fully meet EPA's requirements in these respects. See 61 FR
49096-49100.
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1. Applicability of Permit Program Requirements
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 in that it does not
adequately cover pollutants required to be regulated under section
112(j) of the Act. As a condition of full approval, Alaska must
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.
2. Applicable Requirements
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. 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, Alaska
must adopt and submit appropriate revisions as a condition of interim
approval.
3. Authority to Implement Section 112 Requirements
Alaska has not adopted by the requirements of 40 CFR part 61
subpart I (radionuclide NESHAP for facilities licensed by the Nuclear
Regulatory Commission). 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.
4. Insignificant Emission Units
The Alaska program improperly exempts insignificant sources subject
to applicable requirements from monitoring, recordkeeping, reporting,
and compliance certification requirements. Alaska must eliminate this
exemption as a condition of full approval.
5. Emissions Trading Provided for in Applicable Requirements
The Alaska program does not contain a provision implementing the
part 70 requirement 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). As a condition of full approval, Alaska must ensure
that its program includes the necessary provisions to meet the
requirements of 40 CFR 70.6(a)(10).
6. 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). As a condition of full approval, Alaska must demonstrate to
EPA's satisfaction that its inspection and entry authority meets the
requirements of 40 CFR 70.6(c)(2) and imposes no greater restrictions
on the State's inspection authority than exist under federal law.
[[Page 64472]]
7. Progress Reports
The Alaska program does not require the submission of progress
reports, consistent with the applicable schedule of compliance and 40
CFR 70.5(c)(8), to be submitted in accordance with the period specified
in an applicable requirement. See 40 CFR 70.6(c)(4). As a condition of
full approval, Alaska must demonstrate to EPA's satisfaction that its
program complies with the requirements of 40 CFR 70.6(c)(4).
8. Compliance Certification.
The Alaska program does not meet the requirements of part 70 that a
permitting program 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). As a
condition of full approval, Alaska must demonstrate to EPA's
satisfaction that its program complies with the requirements of 40 CFR
70.6(c)(5).
9. General Permits
The Alaska provisions for general permits fail to comply with the
requirements of part 70 in one respect. The Alaska provisions do not
require that applications for general permits which deviate from the
requirements of 40 CFR 70.5 otherwise meet the requirements of title V.
See 40 CFR 70.6(d)(2). As a condition of full approval, Alaska must
demonstrate to EPA's satisfaction that applications for general permits
meet the requirements of title V.
10. Affirmative Defense for Emergencies
The Alaska program does not comply with the requirement of part 70
with respect to the provisions for an affirmative defense to an action
brought for noncompliance with a technology-based limitation in a title
V permit. The Alaska regulations include a definition of ``technology-
based standard'' which is broader than allowed by part 70 and the
Alaska program gives a permittee up to one week after the discovery of
an exceedence to provide ADEC with written notice rather than within
two working days as required by 40 CFR 70.6(g)(3)(iv). As a condition
of full approval, Alaska must demonstrate to EPA's satisfaction that
its emergency provisions are consistent with the requirements of 40 CFR
70.6(g).
11. Off-Permit Provisions
The Alaska program does not comply with the part 70 ``off-permit''
provisions which 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). Although EPA has proposed to revise 40 CFR part
70 to eliminate the off-permit requirements, this proposed revision is
not yet adopted. 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, Alaska
must ensure that its program requires notice and records for all off-
permit changes as a condition of full approval.
12. Statement of Basis
The Alaska program does not require the permitting authority to
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). 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).
13. Administrative Amendments
The Alaska program, which allows alterations in the identification
of equipment or components that have been replaced with equivalent
equipment or components to be made by administrative amendment, does
not comply with the part 70 provisions which authorize States to allow
certain ministerial types of changes to title V permits to be made by
administrative amendment. See 40 CFR 70.7(d). As a condition of full
approval, Alaska must 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.
14. Minor Permit Modifications
The Alaska program does not comply with the part 70 provisions
which require States to establish procedures for minor permit
modifications which are substantially equivalent to those set forth in
40 CFR 70.7(e), for several reasons. First, the Alaska program does not
ensure 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).
Second, the Alaska program does not ensure 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). 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). As a
condition of full approval, Alaska must demonstrate to EPA that its
program includes the necessary provisions to meet the requirements of
40 CFR 70.7(e)(2)(B).
15. Group Processing of Minor Permit Modifications
The Alaska program does not conform with the provisions of part 70
which allow a permitting authority to process as a group certain
categories of applications for minor permit modifications at a single
source in that the Alaska program does not contain any thresholds for
determining whether minor permit modifications may be processed as a
group. See 40 CFR 70.7(e)(3). As a condition of full approval, Alaska
must demonstrate that its group processing procedures are consistent
with the requirements of 40 CFR 70.7(e)(3).
16. Significant Permit Modifications
The Alaska program does not address the part 70 requirement that a
State 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).
As a condition of full approval, Alaska must 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.
17. Reopenings
The Alaska program provisions for reopenings fail to comply with
part 70 in several respects. First, the Alaska program does not 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 40 CFR 70.7(f)(1)(i). Second, the
Alaska program does not comply with part 70 in that the Alaska program
merely authorizes ADEC to reopen a permit
[[Page 64473]]
under specified circumstances, where as part 70 requires that a permit
be reopened if ADEC or EPA determine such circumstances exist. See 40
CFR 70.7(f)(2)(iii). Third, the Alaska program also fails to contain
required procedures in the event of a reopening for cause by EPA. See
40 CFR 70.7(g)(2) and (4). Finally, the Alaska program does not include
provisions assuring that reopenings are made as expeditiously as
practicable. See 40 CFR 70.7(f)(2). As a condition of full approval,
Alaska must demonstrate to EPA's satisfaction that its provisions for
reopenings comply with the requirements of 40 CFR 70.7(f) and (g).
18. Public Petitions to EPA
The Alaska program does not prohibit issuance of a permit if EPA
objects to the permit after EPA's 45-day review period (i.e., in
response to a petition). As a condition of full approval, Alaska must
demonstrate to EPA's satisfaction that Alaska's provisions regarding
public petitions to EPA comply with the requirements of 40 CFR 70.8(d).
19. Public Participation
The Alaska program does not conform to the part 70 requirement that
the contents of a title V permit not be entitled to confidential
treatment. See 40 CFR 70.4(b)(3)(viii). As a condition of full
approval, Alaska must demonstrate to EPA's satisfaction that nothing in
a title V permit will be entitled to confidential treatment.
This interim approval, which may not be renewed, extends until
December 7, 1998. During this interim approval period, Alaska is
protected from sanctions, and EPA is not obligated to promulgate,
administer, and enforce a federal operating permits program in Alaska.
Permits issued under a program with interim approval have full standing
with respect to title V and part 70. In addition, the 1-year time
period under State law for submittal of permit applications by subject
sources and the 3-year time period for processing the initial permit
applications begin upon the effective date of this interim approval.
If Alaska fails to submit a complete corrective program for full
approval by June 5, 1998, EPA will start an 18-month clock for
mandatory sanctions. If Alaska then fails to submit a corrective
program that EPA finds complete before the expiration of that 18-month
period, EPA will be required to apply one of the sanctions in section
179(b) of the Act, which will remain in effect until EPA determines
that Alaska has corrected the deficiency by submitting a complete
corrective program. Moreover, if the Administrator finds a lack of good
faith on the part of Alaska, both sanctions under section 179(b) will
apply after the expiration of the 18-month period until the
Administrator determines that Alaska has come into compliance. In any
case, if, six months after application of the first sanction, Alaska
still has not submitted a corrective program that EPA has found
complete, a second sanction will be required.
If EPA disapproves Alaska's complete corrective program, EPA will
be required to apply one of the section 179(b) sanctions on the date 18
months after the effective date of the disapproval, unless prior to
that date Alaska has submitted a revised program and EPA has determined
that it corrected the deficiencies that prompted the disapproval.
Moreover, if the Administrator finds a lack of good faith on the part
of Alaska, both sanctions under section 179(b) shall apply after the
expiration of the 18-month period until the Administrator determines
that Alaska has come into compliance. In all cases, if, six months
after EPA applies the first sanction, Alaska has not submitted a
revised program that EPA has determined corrects the deficiencies, a
second sanction is required.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if Alaska
has not timely submitted a complete corrective program or EPA has
disapproved its submitted corrective program. Moreover, if EPA has not
granted full approval to Alaska program by the expiration of this
interim approval and that expiration occurs after November 15, 1995,
EPA must promulgate, administer and enforce a federal permits program
for Alaska upon interim approval expiration.
This final interim approval of the Alaska title V program applies
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. See 61 FR 49092, 49101.
B. Authority for Section 112 Implementation
1. Delegation under Section 112
In its title V program submittal, Alaska has demonstrated adequate
legal authority to implement and enforce section 112 (hazardous air
pollutants (HAPS)) 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)).
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 approving 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.
2. 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) 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 in an important respect. 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 61 FR 49102.
3. Section 112(l) Approval, Disapproval and Implications
In conjunction with the actions being taken in regard to Alaska's
title V program submittal, EPA is approving the State of Alaska's
delegation request of May 17, 1995, as amended on February 25, 1996,
July 5, 1996, October 17, 1996, and November 21, 1996, for all existing
applicable 40 CFR parts 61 and 63 regulations adopted by reference in
18 AAC 50.040, specifically, 40 CFR part 61 subparts A (except
Sec. 61.16), E, J, V, Y, FF, Sec. 61.154 of subpart M, and Sec. 61.145
of subpart M (along with other sections and appendices which are
[[Page 64474]]
referenced in Sec. 61.145, as Sec. 61.145 applies to sources required
to obtain an operating permit under AS 46.14.130(b)(1)-(3) and 18 AAC
50.330); and 40 CFR part 63 subparts A (except Sec. 63.6(g) and
Secs. 63.12 through 63.15), B (except Secs. 63.50 and 63.54), D, M, N
(as it applies to sources required to obtain an operating permit under
AS 46.14.130(b)(1)-(3) and 18 AAC 50.330), R, Q, T, Y, CC, DD, II, JJ,
and KK, and Appendices A and B.
EPA is also granting approval under the authority of section
112(l)(5) and 40 CFR 63.91 of a mechanism for receiving delegation of
future section 112 standards that Alaska adopts unchanged from the
federal standards. See section 5.1.2.b of EPA's ``Interim Enabling
Guidance for the Implementation of 40 CFR part 63'', subpart E, EPA-
453/R-93-040, November 1993. Under this streamlined approach, once
Alaska adopts a new or revised NESHAP standard into State law, Alaska
will only need to send a letter of request to EPA requesting delegation
for the NESHAP standard. EPA would in turn respond to this request by
sending a letter back to the State delegating the appropriate NESHAP
standards 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 by EPA within 10 days of this letter of delegation, the
delegation would then become final. Notice of such delegations will
periodically be published in the Federal Register.
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. In addition,
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 is denying 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). EPA is retaining 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) are still required to obtain EPA approval prior to
commencing construction.
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.
4. Scope of Approval
This approval of the Alaska section 112(l) programs, as with
Alaska's title V program, applies 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.
Administrative Requirements
A. Docket
Copies of the State's submittal and other information relied upon
for the final interim approval and final partial approval and partial
disapproval, including the letters of public comment received and
reviewed by EPA on the proposal, are contained in the Alaska title V
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 final action.
The docket is available for public inspection at the location listed
under the ADDRESSES section of this document.
B. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
C. Regulatory Flexibility Act
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. Similarly, NESHAP rule
or program delegations approved under the authority of section 112(l)
of the Act do not create any new requirements, but simply confer
federal authority for those requirements that Alaska is already
imposing. Because this action does not impose any new requirements, EPA
has determined it does not have a significant impact on a substantial
number of small entities.
D. Unfunded Mandates Reform Act
EPA has determined that the action promulgated today under section
502 and section 112(l) of the Act 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.
E. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A), as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
F. Effective Date
An administrative agency engaging in rulemaking must comport with
the requirement of section 553 of the Administrative Procedures Act.
See 5 U.S.C. chapter 5. Section 553 requires an agency to allow at
least 30 days from the date of publication before the effective date of
a substantive rulemaking. If, however, good cause can be shown, then
the agency may impose an effective date of less than 30 days after
publication. Good cause exists to initiate an effective date of less
than 30 days after publication when it is in the public interest and
the shorter time period does not cause prejudice to those regulated by
the rule. British American Commodity Options Corp. v. Bagley, 552 F.2d
482, 488-89 (2d Cir. 1977). An immediate effective date is in the
public's interest for several reasons.
First, ADEC is statutorily prevented from collecting and expending
permit fees until EPA has approved the State title V program. The
Alaska Legislature has only authorized ADEC to expend a limited amount
of EPA grant monies and other State revenues prior to EPA approval of
the State's title V program. These revenues have now run out and the
State agency is without funds to continue to pay salaries. Further
delay in the effective date of EPA's approval risks the loss of trained
air staff necessary to successfully implement the title V program when
it is approved.
[[Page 64475]]
Second, the federal part 71 permitting program became effective in
Alaska on July 31, 1996. 61 FR 34202 (July 1, 1996), codified at 40 CFR
part 71. Under this federal permitting program, some title V sources
are required to submit permit applications and permit fees to EPA by
January 31, 1997. See 40 CFR 71.5(a) and 71.9(f)(3). EPA understands,
however, that sources have not been preparing applications for the
federal part 71 program, but have instead been anticipating that the
State title V program would be approved prior to the first application
submittal deadline of the federal part 71 program. Delaying the
effective date of EPA's approval of the Alaska title V program could
put sources at risk of having to file applications and pay fees under
both the State part 70 and federal part 71 permitting programs.
Moreover, the State has advised EPA that sources have delayed filing
permit renewal applications under the current State operating permit
program in anticipation of the imminent approval of the State's title V
program. Such sources will be at risk of being in violation of current
State law if interim approval of Alaska's title V program is delayed.
Although it is in the public's interest to make EPA's interim
approval of Alaska's title V program effective on the date of
publication, EPA must ensure that this action will not have any
prejudicial effects upon the regulated community. Rowell v. Andrus, 631
F.2d 699, 702-703 (10th Cir. 1980). For example, EPA must ensure that
the regulated community has sufficient notice of this rulemaking and
ample opportunity to comment. EPA believes that all interested parties
have had sufficient notice of this rulemaking and ample opportunity to
comment. The State has advised EPA that it has contacted each of the
parties that commented on the proposal and none object to having this
rulemaking effective on the date of publication. The regulated
community has worked closely with the State in the development of the
State's title V program over the past several years. The State
regulations that form the basis of the State's title V program were
subject to notice and comment at the State level. EPA's proposed action
on the State's title V program was also subject to 30 days public
comment. Finally, under Alaska law, the State's operating permit
regulations do not become effective until 30 days after the effective
date of EPA approval. Because the program itself does not become
effective as a matter of State law for 30 days, it can also have no
effect as a matter of Federal law until that time. Therefore, the
purpose of the 30-day effective date under the Administrative
Procedures Act is met since sources will have 30 days notice prior to
the Alaska title V program becoming effective as a matter of both State
and federal law.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Operating permits, Reporting and recordkeeping requirements.
Dated: November 22, 1996.
Chuck Clarke,
Regional Administrator.
Part 70, title 40 of the Code of Federal Regulations is amended as
follows:
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Appendix A to part 70 is amended by adding the entry for Alaska
in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Alaska
(a) Alaska Department of Environmental Conservation: submitted
on May 31, 1995, as supplemented by submittals on August 16, 1995,
February 6, 1996, February 27, 1996, July 5, 1996, August 2, 1996,
and October 17, 1996; interim approval effective on December 5,
1996; interim approval expires December 7, 1998.
(b) (Reserved)
* * * * *
[FR Doc. 96-30865 Filed 12-4-96; 8:45 am]
BILLING CODE 6560-50-P