[Federal Register Volume 63, Number 159 (Tuesday, August 18, 1998)]
[Proposed Rules]
[Pages 44208-44211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22194]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AK 15-1703; FRL-6146-4]


Approval and Promulgation of Implementation Plans; Alaska

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) invites public 
comment on its proposed approval of numerous revisions to the State of 
Alaska Implementation Plan submitted to EPA by the Director of the 
Alaska Department of Environmental Conservation (ADEC) on January 8, 
1997, and March 17, 1998. The revisions were submitted in accordance 
with the requirements of section 110 and Part D of the Clean Air Act 
(hereinafter the Act). EPA is taking no action at this time on the 
provisions relating to the permitting of stationary sources, including 
the construction of new and modified stationary sources, Part D new 
source review, and prevention of significant deterioration permitting, 
but will propose action on those provisions in a separate notice. EPA 
is also taking no action on a number of provisions which are unrelated 
to the purposes of the implementation plan, including the Alaska 
provisions for implementing the Title V operating permit program.

DATES: Comments must be postmarked on or before September 17, 1998.

ADDRESSES: Written comments should be addressed to: Montel Livingston, 
SIP Manager, EPA, Office of Air Quality (OAQ-107), 1200 Sixth Avenue, 
Seattle, Washington 98101.
    Copies of the State's request and other information supporting this 
proposed action are available for inspection during normal business 
hours at the following locations: EPA, Office of Air Quality (OAQ-107), 
1200 Sixth Avenue, Seattle, Washington 98101, and Alaska Department of 
Environmental Conservation, 410 Willoughby Avenue, Juneau, Alaska 
99801.

FOR FURTHER INFORMATION CONTACT: David C. Bray, Senior Air Pollution 
Scientist, Office of Air Quality (OAQ-107), EPA, Seattle, Washington, 
(206) 553-4253.

SUPPLEMENTARY INFORMATION:

I. Background

    The Clean Air Act Amendments of 1990, Title V, requires States to 
develop operating permit programs for most stationary sources. While 
Title V operating permit programs are not approved as part of the State 
Implementation Plan (SIP) under section 110 of the Act, many provisions 
of the SIP will interact closely with the Title V operating permit 
program. As such, many States will be revising provisions of their SIPs 
to facilitate and improve the relationship between their SIP and their 
Title V operating permit program. The ADEC amended numerous provisions 
of its current rules for air pollution sources and submitted them to 
EPA on January 8, 1997, and March 17, 1998, as revisions to the Alaska 
SIP.

II. Description of Submittals

    On January 8, 1997, the Director of ADEC submitted the Alaska air 
quality regulations, 18 Alaska Administrative Code (AAC) 50, effective 
January 18, 1997 (with the exception of 18 AAC 50.055(a)(9), 50.085, 
50.090, 50.110, 50.300(g), and 50.310(I)), to EPA as a revision to the 
Alaska SIP. These regulations are intended to replace entirely the 
current version of the 18 AAC 50 in the EPA-approved SIP. (See 40 CFR 
52.75 for identification of the regulations contained in the current 
EPA-approved SIP.) The January 8, 1997, submittal also includes the 
current Alaska Statutes for air pollution control, specifically the 
1993 Alaska Act (Chapter 74 State Legislative Act 1993) relating to air 
quality control and the prevention, abatement, and control of air 
pollution as a revision to the statutes in the EPA-approved SIP. 
Finally, the submittal includes the ``In Situ Burning Guidelines for 
Alaska (revised 5/94),'' which implement certain provisions of the open 
burning regulations in 18 AAC 50.065. On March 17, 1998, the Director 
of ADEC resubmitted revisions to the opacity and particulate emission 
standards for urea prilling towers in operation before July 1, 1972 (18 
AAC 50.055(a)(3) and (b)(6)), along with the ambient impact 
demonstrations required under 40 CFR part 51, appendix V to support the 
changes in emission standards.

III. Proposed Action

A. Changes to Emission Standards

    The amended rules include two changes to the emission standards for 
urea prilling towers in operation prior to July 1, 1972. First, the 
opacity limit in 18 AAC 50.055(a)(3) is changed from 30 percent to 55 
percent (not to be exceeded for more than three minutes in any one 
hour), and a 40 percent (24-hour average) standard is added. Second, 
the particulate emission limit in 18 AAC 50.055(b)(6) is changed from 
0.1 grains per dry standard cubic foot to 0.04 grains per dry standard 
cubic foot. The SIP revision submittal includes an adequate 
demonstration, including dispersion modeling, that the revised emission 
standards ensure attainment and maintenance of the national ambient air 
quality standards (NAAQS) for PM-10 and prevent the significant 
deterioration of air quality in the area affected by urea prilling 
towers. EPA, therefore, proposes to approve the amended emission 
limitations as a revision to the Alaska SIP.

B. Revisions to Current Provisions

    The amended rules include a number of changes to current provisions 
to strengthen and improve air quality protection in certain areas of 
Alaska. Special protection areas for sulfur dioxide are established in 
18 AAC 50.025 in order to apply more stringent requirements in the 
Unalaska and substantially revised, primarily through the addition of 
provisions regulating firefighter training and the use of open burning 
as an oil spill response countermeasure. The opacity standards for 
marine vessels (18 AAC 50.070) are revised to address more and 
different modes of operation for vessels operating within three miles 
of the Alaska coastline. The regulations for wood-fired heating device 
visible emission standards (18 AAC 50.075) are revised to incorporate 
provisions of the Code of the city and Borough of Juneau, Alaska and an 
Ordinance of the City and Borough of Juneau, Alaska, both of

[[Page 44209]]

which are provisions of the PM-10 attainment plan for the Juneau PM-10 
nonattainment area. Finally, the provisions for enforceable test 
methods (18 AAC 50.220) are revised and expanded to specify the 
compliance methods for all emission standards and limitations 
established in and pursuant to 18 AAC 50. EPA has determined that these 
amendments improve and strengthen the provisions of the Alaska SIP and 
proposes, therefore, to approve the changes as revisions to the Alaska 
SIP.

C. Excess Emission Provisions

    The amended rules include the addition of new provisions addressing 
excess emissions (18 AAC 50.240). These provisions specify the 
demonstration necessary to determine that excess emissions are 
unavoidable and describe how periods of unavoidable excess emissions 
are to be addressed in an enforcement action. Excess emissions which 
are determined to be unavoidable under these provisions will be excused 
and are not subject to penalty. However, the provisions do not limit 
ADEC's authority to enjoin the emissions or require corrective action. 
EPA has determined that these provisions conform to EPA requirements 
for SIP excess emission rules (see February 15, 1983 memorandum 
entitled ``Policy on Excess Emissions During Startup, Shutdown, 
Maintenance, and Malfunctions'' from Kathleen M. Bennett, Assistant 
Administrator for Air, Noise and Radiation to Regional Administrators, 
Regions 1-X) and therefore, proposes to approve them as a revision to 
the Alaska SIP.

D. Other New Provisions

    The amended rules include the following new provisions which 
strengthen and improve the rules: 18 AAC 50.005 ``Purpose and 
Applicability of Chapter;'' 18 AAC 50.035 ``Documents, Procedures, and 
Methods Adopted by Reference;'' 18 AAC 50.200 ``Information Requests;'' 
18 AAC 50.201 ``Ambient Air Quality Investigation;'' 18 AAC 50.205 
``Certification;'' 18 AAC 50.400 ``Permit Administration Fees,'' 
subsections (a), (b)(1), and (c); 18 AAC 50.420 ``Billing Procedures;'' 
18 AAC 50.430 ``Appeal Procedures;'' and 18 AAC 50.900 ``Small Business 
Assistance Program.'' EPA has determined that these new provisions are 
consistent with the requirements of 40 CFR Part 51 and EPA guidance for 
SIPs and therefore, proposes to approve the new provisions as revisions 
to the Alaska SIP.

E. Definitions

    The amended rules add a number of new definitions to 18 AAC 50.990 
(formerly 18 AAC 50.900). In this action, EPA is proposing to approve 
the new definitions of the following terms: ``Air pollution,'' ``air 
pollution control equipment,'' ``air quality control requirement,'' 
``ambient air quality standards,'' ``black smoke,'' ``Clean Air Act,'' 
``conservation vent,'' ``contaminant,'' ``contaminant outlet,'' 
``delivery tank,'' ``emission limitation,'' ``emission standard,'' 
``EPA,'' ``excess emissions,'' ``expected,'' ``federal administrator,'' 
``fire service,'' ``gasoline distribution facility,'' ``hazardous 
waste,'' ``industrial process,'' ``marine vessel,'' ``maximum true 
vapor pressure,'' ``nonroutine repair,'' ``operator,'' ``organic 
vapors,'' ``owner,'' ``person,'' ``rated capacity,'' ``scheduled 
maintenance,'' ``shutdown,'' ``small business facility,'' ``startup,'' 
``state air quality control plan,'' ``uncontaminated fuel,'' ``upset,'' 
``vapor collection system,'' ``vapor-laden delivery tank,'' ``volatile 
liquid,'' ``volatile liquid loading rack,'' ``volatile liquid storage 
tank,'' and ``well servicing equipment.'' The amended rules also 
include revisions to the definitions of the following terms: ``air 
contaminant,'' ``incinerator,'' ``PM-10,'' ``stack,'' and ``wood-fired 
heating device.'' EPA has determined that these new definitions, and 
revisions to the existing definitions are consistent with EPA's 
definitions in 40 CFR 51.100 and with the requirements of 40 CFR part 
51. (See the ``Technical Support document for Action on Provisions of 
18 AAC 50 Related to the State Implementation Plan,'' available at the 
addresses listed above, for definitions that EPA is not proposing to 
act on at this time.)

F. Legal Authority

    EPA has reviewed the 1993 Alaska Air Act (Chapter 74 State 
Legislative Act 1993, codified primarily at Title 46 Alaska Statutes 
(AS) Chapter 14 and scattered sections of Titles 28, 29, 37, 42, 44, 
and 45) relating to air quality and the prevention, abatement and 
control of air pollution. EPA has determined that the statutes relating 
to State policy, procedures, and investigatory and enforcement 
authority are adequate to provide the necessary assurances sufficient 
to insure implementation of the SIP as required for federal approval in 
accordance with section 110 of the Act and 40 CFR Part 51, Subpart L of 
EPA's regulations. In addition to establishing adequate legal authority 
for the State, certain provisions of the Alaska Air Act also establish 
enforceable requirements for owners or operators of sources of air 
pollution in addition to those included in the State rules. These 
provisions are AS 46.14.110(e) and (g) (relating to contaminant control 
measures); AS 46.14.120(a) (relating to permits to construct); AS 
46.14.130(a) (relating to permits to construct); AS 46.14.240(a) 
(relating to permit administration fees); AS 46.14.250(a) (relating to 
emission fees); AS 46.14.510(b) (relating to motor vehicle pollution 
control equipment); AS 46.14.550 (responsibilities of owner and 
operator); AS 46.14.560 (unavoidable malfunctions and upsets); AS 
46.14.990 (definitions); and AS 45.45.400(a) (related to the sale of 
motor vehicles). EPA is proposing to approve as federally enforceable 
provisions of the SIP, the following provisions of the Alaska Statutes: 
AS 46.14.110(e) and (g); AS 46.14.510(b); AS 46.14.550; AS 46.14.560; 
AS 46.14.990, subsections (1), (2), (3), (6), (7), (8), (10), (13), 
(15), (16), (17), (18), (22), (24), and (25); and AS 45.45.400(a). EPA 
is taking no action at this time on the following provisions, but will 
propose action on them in a subsequent notice: AS 46.14.120(a); AS 
46.14.130(a); AS 46.14.240(a); AS 46.14.250(a); and AS 46.14.990, 
subsections (4), (5), (9), (11), (12), (14), (19), (20), (21), and 
(23).

G. Removing Provisions of the Current SIP

    The SIP revision submittal includes a request from the State to 
remove a provision of the ADEC rules from the current EPA-approved SIP. 
Specifically, the State has requested that EPA remove 18 AAC 50.110 
``Air Pollution Prohibited'' from the SIP. This provision is a general 
nuisance provision which prohibits any source from causing emissions 
which are injurious to human health or welfare, animal or plant life, 
or property, or which would unreasonably interfere with the enjoyment 
of life or property. Since this provision is not relied upon to meet 
any requirement of the Act or EPA regulations, EPA is proposing to 
remove the provision from the EPA-approved SIP.

H. Editorial Changes

    The amended rules include numerous editorial changes to make the 
rules internally consistent and easier to read and understand. The 
primary changes include updated references to Alaska statutes, a 
complete reorganization and renumbering of the rules, and updating the 
internal cross references within the renumbered rules. EPA has 
determined that the editorial changes improve and strengthen the rules 
and proposes to

[[Page 44210]]

approve the amended rules as revisions to the Alaska SIP.

IV. Summary of Action

    EPA is soliciting public comment on its proposed approval of 
revisions to the State of Alaska Implementation Plan. Specifically, EPA 
is proposing to approve the following provisions of 18 AAC 50 as 
adopted by ADEC and effective on January 18, 1997: Section 005; Section 
010, except for subsections (7) and (8); Section 025; Section 030; 
Section 035; Section 045; Section 050; Section 055, except for 
paragraph (d)(2)(B) (note that paragraph (a)(9) was not submitted by 
ADEC); Section 060; Section 065; Section 070; Section 075; Section 200; 
Section 201; Section 205; Section 220; Section 240; Section 245; 
Section 400, paragraphs (a), (b)(1), and (c); Section 420; Section 430; 
Section 900; and Section 990, subsections (2), (3), (4), (5), (6), (8), 
(9), (10), (11), (14), (15), (16), (17), (19), (20), (23), (24), (25), 
(26), (29), (31), (32), (33), (34), (35), (37), (39), (40), (42), (43), 
(45), (47), (48), (50), (51), (53), (58), (59), (60), (61), (62), (63), 
(65), (66), (67), (69), (70), (71), (72), (74), (75), (78), (79), (80), 
(81), (83), (84), (85), (86), (89), (90), (91), (92), (93), (94), (95), 
(96), (97), (99), and (100). (Note that 18 AAC 50, Sections 700 through 
735 were already approved by EPA on September 27, 1995 (60 FR 49765).) 
EPA is also proposing to approve the requested revocation of 18 AAC 50: 
Section 010 ``Applicability of Local Government Regulations;'' Section 
070 ``Motor Vehicle Emissions;'' and Section 900 ``Definitions,'' 
subsections (19) ``emission allowance,'' (27) ``maximum combustion 
efficiency,'' (30) ``opacity,'' (45) ``ug/m3,'' (46) ``regional 
supervisor,'' and (48) ``wood smoke control area.'' Also, as requested 
by the Director of ADEC in the January 8, 1997 submittal, EPA is 
proposing to remove 18 AAC 50.110 ``Air Pollution Prohibited'' 
(effective 5/26/72) from the EPA-approved SIP. EPA is proposing to 
approve as federally enforceable provisions of the SIP, the following 
provisions of the Alaska Statutes: AS 46.14.110(e) and (g); AS 
46.14.510(b); AS 46.14.550; AS 46.14.560; AS 46.14.990, subsections 
(1), (2), (3), (6), (7), (8), (10), (13), (15), (16), (17), (18), (22), 
(24), and (25); and AS 45.45.400(a). Finally, EPA is proposing to 
approve the ``In Situ Burning Guidelines for Alaska (revised 5/94).''
    EPA is taking no action at this time on the following provisions of 
18 AAC 50 which relate to the permitting of new and modified stationary 
sources: Section 015; Section 020; Section 100; Section 210; Section 
215; Section 225; Section 230; Section 250; Section 300; Section 305; 
Section 310; Section 315; Section 320; Section 400, paragraphs (b)(2) 
through (b)(5); Section 910; and Section 990, subsections (1), (7), 
(13), (21), (22), (27), (28), (30), (36), (38), (41), (44), (46), (49), 
(52), (54), (55), (56), (57), (64), (68), (73), (76), (77), (82), and 
(98). Additionally, EPA is taking no action at this time on the 
revocation of Section 520 ``Emission and Ambient Monitoring'' 
(effective 7/21/91) and Section 900 ``Definitions,'' subsections (52) 
and (54) (effective 4/23/94). Finally, EPA is taking no action at this 
time on the following provisions of the Alaska Statutes which relate to 
the permitting of new and modified stationary sources: AS 46.14.120(a); 
AS 46.14.130(a); AS 46.14.240(a); AS 46.14.250(a); and AS 46.14.990, 
subsections (4), (5), (9), (11), (12), (14), (19), (20), (21), and 
(23).
    EPA is taking no action on the following provisions of 18 AAC 50 
which do not relate to the purposes of the SIP under section 110 of the 
Act, or which implement other provisions of the Clean Air Act (e.g., 
NSPS, NESHAP, Title V): Section 010, subsections (7) and (8); Section 
040; Section 055, paragraph (d)(2)(B); Section 080; Section 235; 
Section 300, paragraphs (f) and (h)(10); Section 310, paragraph (h); 
Section 315, paragraph (e)(6); Section 322; Sections 325 through 380; 
Section 400, paragraphs (b)(6) through (b)(10); Section 410; and 
Section 990, subsections (12), (18), (87), and (88).
    Interested parties are invited to comment on all aspects of this 
proposed approval. Comments should be submitted to the address listed 
in the front of this Notice. Public comments postmarked by September 
17, 1998 will be considered in the final rulemaking action taken by 
EPA.

V. Administrative Review

A. Executive Order 12866 and 13045

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866, entitled, ``Regulatory Planning and 
Review'' review. The proposed rule is not subject to E.O. 13045, 
entitled, ``Protection of Children from Environmental Health Risks and 
Safety Risks'' because it is not an ``economically significant'' action 
under E.O. 12866.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 601-612 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.
    SIP approvals under section 110 and subchapter I, part D, of the 
CAA do not create any new requirements, but simply approve requirements 
that the State is already imposing. Therefore, because the federal SIP-
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the Federal-State relationship under the CAA, 
preparation of a regulatory flexibility analysis would constitute 
federal inquiry into the economic reasonableness of State action. The 
CAA forbids EPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 
U.S.C. 7410(a)(2).

C. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate, 
or to 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 proposed action does not include a 
Federal mandate that may result in estimated annual costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

D. Alaska's Audit Law

    Nothing in this action should be construed as making any 
determination or expressing any position regarding Alaska's audit 
privilege and penalty immunity law, (Alaska Audit Act, AS 09.25.450 et 
seq., enacted in 1997) or its impact upon any approved provision in

[[Page 44211]]

the SIP, including the revision at issue here. The action taken herein 
does not express or imply any viewpoint on the question of whether 
there are legal deficiencies in this or any other Clean Air Act program 
resulting from the effect of Alaska's audit privilege and immunity law. 
A state audit privilege and immunity law can affect only state 
enforcement and cannot have any impact on federal enforcement 
authorities. EPA may at any time invoke its authority under the Clean 
Air Act, including, for example, sections 113, 167, 205, 211 or 213, to 
enforce the requirements or prohibitions of the state plan, 
independently of any state enforcement effort. In addition, citizen 
enforcement under section 304 of the Clean Air Act is likewise 
unaffected by a state audit privilege or immunity law.

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

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by Reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: August 10, 1998.
Chuck Clarke,
Regional Administrator, Region 10.
[FR Doc. 98-22194 Filed 8-17-98; 8:45 am]
BILLING CODE 6560-50-P