[Federal Register Volume 63, Number 222 (Wednesday, November 18, 1998)]
[Rules and Regulations]
[Pages 63983-63986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30721]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AK 15-1703a; FRL-6188-7]


Approval and Promulgation of State Implementation Plans; Alaska

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: Environmental Protection Agency (EPA) is approving in part and 
disapproving in part portions of the revisions to the State of Alaska 
Implementation Plan which were submitted to EPA by the Director of the 
Alaska Department of Environmental Conservation (ADEC) on January 8, 
1997 and March 17, 1998. These revisions consist of certain changes to 
the ADEC rules for air quality control (18 AAC 50), updated Alaska 
statutes related to air pollution, and the ``In Situ Burning Guideline 
for Alaska (revised 5/94).'' These revisions were submitted in 
accordance with the requirements of section 110 and Part D of the Clean 
Air Act (hereinafter the Act).

DATES: This action is effective on January 19, 1999.

ADDRESSES: 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 
State of Alaska, Department of Environmental Conservation, 410 
Willoughby Avenue, Juneau, Alaska, 99801. Documents which are 
incorporated by reference are available for public inspection at the 
Air and Radiation Docket and Information Center, EPA, 401 M Street, SW, 
Washington, D.C. 20460, as well as the above addresses.

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, require 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

[[Page 63984]]

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. ADEC also submitted updated Alaska statutes related to air 
pollution (specifically, the 1993 Alaska Act (Chapter 74 State 
Legislative Act 1993)), and the ``In Situ Burning Guideline for Alaska 
(revised 5/94).''
    On August 18, 1998 (63 FR 44208), EPA proposed to approve portions 
of the rules submitted by ADEC, along with portions of the updated 
Alaska statutes and the ``In Situ Burning Guideline for Alaska (revised 
5/94).'' In that proposal, EPA indicated that it was taking no action 
at that 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 (PSD) permitting, but would propose action on those 
provisions in a separate notice. In addition, EPA indicated that it was 
taking no action on a number of provisions which are unrelated to the 
purposes of the implementation plan. See the August 18, 1998 Federal 
Register for complete descriptions of the portions of the ADEC 
submittals which were proposed for approval, the portions which will be 
acted on at a later date, and the portions which will not be acted 
upon. The August 18, 1998 Federal Register also contains a discussion 
of EPA's review of the ADEC submittals and its findings with regard to 
the portions of the submittals which EPA proposed for approval.

II. Response to Comments

    EPA received comments from three entities on its proposed approval 
of portions of the ADEC submittal. One commentor (an Alaskan industry) 
supported EPA's proposed approval and encouraged EPA to complete its 
action on the provisions relating to the permitting of new and modified 
stationary sources. One commentor (the ADEC) supported EPA's proposed 
approval, but pointed out that EPA had proposed to approve AS 
46.14.110(e) and (g), which had been repealed by the Alaska Legislature 
and was no longer in effect. EPA agrees with the commentor that it 
cannot approve a repealed statutory provision and is correcting its 
error in this final action.
    One commentor (representing three environmental organizations) 
opposed EPA's proposed approval of the ADEC's request to remove 18 AAC 
50.110 ``Air Pollution Prohibited'' from the federally-approved Alaska 
SIP. The commentor disagreed with EPA's characterization of this 
section as a general nuisance provision that is not relied upon to meet 
any requirement of the Clean Air Act or EPA regulations. The commentor 
indicated that 18 AAC 50.110 in fact provides a mechanism for 
regulating pollutants that are not otherwise regulated by ambient air 
quality standards and/or permitting requirements and equipment-specific 
standards, and cited examples of where this provision had been used in 
the past to regulate sources of criteria pollutants. The commentor also 
pointed out that neither ADEC nor EPA had provided an adequate 
justification for removing this section from the EPA-approved SIP.
    EPA has considered the comments regarding its proposed approval of 
the removal of 18 AAC 50.110 from the SIP and has reevaluated the 
documentation submitted by ADEC in support of its request. In light of 
the information provided by the commentor and the lack of documentation 
submitted by ADEC, EPA finds the request for removal of 18 AAC 50.110 
to be unapprovable. Specifically, ADEC has not demonstrated that the 
removal of 18 AAC 50.110 would comply with the requirements for SIP 
revisions set forth in sections 110(l) and 193 of the Act. EPA is 
therefore disapproving the ADEC request to remove 18 AAC 50.110 from 
the Alaska SIP. Note that EPA is not making any determination regarding 
whether 18 AAC 50.110 could be removed from the SIP, but only that ADEC 
has not submitted the necessary demonstrations required by the Act and 
EPA regulations for EPA to approve this specific SIP submittal.

III. Final Action

    EPA is approving in part and disapproving in part portions of the 
rules submitted by ADEC, and is approving portions of the updated 
Alaska statutes and the ``In Situ Burning Guideline for Alaska (revised 
5/94).'' Specifically, EPA is approving 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 approving 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.'' EPA is approving as 
federally enforceable provisions of the SIP, the following provisions 
of the Alaska Statutes: AS 46.14.510(b); AS 46.14.550; AS 46.14.560; AS 
46.14.990(1), (2), (3), (6), (7), (8), (10), (13), (15), (16), (17), 
(18), (22), (24), and (25); and AS 45.45.400(a) (enacted 1993). 
Finally, EPA is approving the ``In Situ Burning Guidelines for Alaska 
(revised 5/94).''
    EPA is disapproving the ADEC request to remove 18 AAC 50.110 ``Air 
Pollution Prohibited'' (effective 5/26/72) from the EPA-approved SIP.
    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(4), 
(5), (9), (11), (12), (14), (19), (20), (21), and (23) (enacted 1993).
    EPA is taking no action on the following provisions of 18 AAC 50 
which do not relate to the purposes of

[[Page 63985]]

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) .

IV. Administrative Requirements

A. Executive Order 12866 and 13045

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from review under E.O. 12866, entitled, ``Regulatory 
Planning and Review'' review.
    The final 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. Executive Order 12875: Enhancing the Intergovernmental Partnership

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their concerns, copies of any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of State, local and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.''
    Today's rule does not create a mandate on state, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of E.O. 12875 
do not apply to this rule.

C. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of section 3(b) of E.O. 13084 do not apply to this rule.

D. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D, of the 
Clean Air Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP approval does not impose any new requirements, the 
Administrator certifies 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 flexibility 
analysis would constitute Federal inquiry into the economic 
reasonableness of State action. The Clean Air Act forbids EPA to base 
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. 
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
    EPA's disapproval of a portion of the State request under Section 
110 and subchapter I, part D of the CAA does not affect any existing 
requirements applicable to small entities. Any pre-existing federal 
requirements remain in place after this disapproval. Federal 
disapproval of the state submittal does not affect its state-
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new Federal requirements. Therefore, EPA certifies that this 
disapproval action does not have a significant impact on a substantial 
number of small entities because it does not remove existing 
requirements and impose any new Federal requirements.

E. 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 
costs to State, local, or tribal governments in the aggregate, or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

F. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. Sec. 801 et seq., as added 
by the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a

[[Page 63986]]

copy of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. This rule is 
not a major rule as defined by 5 U.S.C. Sec. 804(2).

G. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by January 19, 1999. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

H. 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 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 penalty 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.

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: November 5, 1998.
Chuck Findley,
Acting Regional Administrator, Region X.

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

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for Part 52 continues to read as follows:

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

Subpart C--Alaska

    2. Section 52.70 is amended by adding paragraph (c)(28) to read as 
follows:


Sec. 52.70  Identification of plan.

* * * * *
    (c) * * *
    (28) On January 8, 1997, the Director of the Alaska Department of 
Environmental Conservation submitted the Alaska air quality 
regulations, 18 Alaska Administrative Code (AAC) 50 (with the exception 
of 18 AAC 50.055(a)(9), 50.085, 50.090, 50.110, 50.300(g), and 
50.310(l) which were not submitted), as effective on January 18, 1997. 
On March 17, 1998, the Director of the Alaska Department of 
Environmental Conservation resubmitted 18 AAC 50.055(a)(3) and (b)(6). 
EPA has approved the following provisions of 18 AAC 50, as 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) and (a)(9); 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). On January 8, 1997, the Director of the Alaska 
Department of Environmental Conservation submitted the current Alaska 
Statutes for air pollution control, specifically the 1993 Alaska Act 
(Chapter 74 State Legislative Act 1993). EPA has approved as federally 
enforceable provisions of the SIP, the following provisions of the 
Alaska Statutes, as effective June 25, 1993: AS 46.14.510(b); AS 
46.14.550; AS 46.14.560; AS 46.14.990(1), (2), (3), (6), (7), (8), 
(10), (13), (15), (16), (17), (18), (22), (24), and (25); and AS 
45.45.400(a). On January 8, 1997, the Director of the Alaska Department 
of Conservation submitted the ``In Situ Burning Guidelines for Alaska 
(revised 5/94).''
    (i) Incorporation by reference.
    (A) 18 AAC 50.005; 18 AAC 50.010, except for subsections (7) and 
(8); 18 AAC 50.025; 18 AAC 50.030; 18 AAC 50.035; 18 AAC 50.045; 18 AAC 
50.050; 18 AAC 50.055, except for paragraphs (d)(2)(B) and (a)(9); 18 
AAC 50.060; 18 AAC 50.065; 18 AAC 50.070; 18 AAC 50.075; 18 AAC 50.200; 
18 AAC 50.201; 18 AAC 50.205; 18 AAC 50.220; 18 AAC 50.240; 18 AAC 
50.245; 18 AAC 50.400, paragraphs (a), (b)(1), and (c); 18 AAC 50.420; 
18 AAC 50.430; 18 AAC 50.900; and 18 AAC 50.990, 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); as effective on 
January 18, 1997.
    (B) AS 46.14.510(b); AS 46.14.550; AS 46.14.560; AS 46.14.990(1), 
(2), (3), (6), (7), (8), (10), (13), (15), (16), (17), (18), (22), 
(24), and (25); and AS 45.45.400(a); as effective on June 25, 1993.
    (C) Remove the following provisions of 18 AAC 50, as effective on 
June 2, 1988, from the current incorporation by reference: 18 AAC 
50.010; 18 AAC 50.070; 18 AAC 50.900, subsections (19), (27), (30), 
(45), (46), and (48).

[FR Doc. 98-30721 Filed 11-17-98; 8:45 am]
BILLING CODE 6560-50-U