Approval and Promulgation of Implementation Plans: Alaska

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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

Approval and Promulgation of Implementation Plans: Alaska

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) approves the State

of Alaska Implementation Plan (SIP) revision submitted by the State of

Alaska for the purpose of establishing a Small Business Stationary

Source Technical and Environmental Compliance Assistance Program. The

implementation plan was submitted by the State to satisfy the Federal

mandate of the Clean Air Act (CAA or Act), to ensure that small

businesses have access to the technical assistance and regulatory

information necessary to comply with the CAA. The rationale for the

approval is set forth in this document; additional information is

available at the address indicated below.

DATES: This final rule is effective on November 6, 1995 unless notice

is received by October 5, 1995, that someone wishes to submit adverse

or critical comments. If the effective date is delayed, timely notice

will be published in the Federal Register.

ADDRESSES: Written comments should be addressed to: Montel Livingston,

SIP Manager, Air and Radiation Branch (AT-082), EPA, 1200 Sixth Avenue,

Seattle, WA 98101.

Documents which are incorporated by reference are available for

public inspection at the Air and Radiation Docket and Information

Center, Environmental Protection Agency, 401 M Street, SW, Washington,

D.C. 20460. Copies of material submitted to EPA may be examined during

normal business hours at the following locations: EPA, Region 10, Air &

Radiation Branch, 1200 Sixth Avenue (AT-082), Seattle, WA 98101, and

Alaska Department of Conservation, 410 Willoughby Avenue, Suite 105,

Juneau, AK 99801-1795.

FOR FURTHER INFORMATION CONTACT: David J. Dellarco, Air and Radiation

Branch (AT-082), EPA, 1200 Sixth Avenue, Seattle, WA 98101, (206) 553-

4978.

SUPPLEMENTARY INFORMATION:

I. Background

Implementation of the provisions of the Clean Air Act (CAA), as

amended in 1990, will require regulation of many small businesses so

that areas may attain and maintain the national ambient air quality

standards (NAAQS) and reduce the emission of air toxics. Small

businesses frequently lack the technical expertise and financial

resources necessary to evaluate such regulations and to determine the

appropriate mechanisms for compliance. In anticipation of the impact of

these requirements on small businesses, the CAA requires that States

adopt a Small Business Stationary Source Technical and Environmental

Compliance Assistance Program (PROGRAM), and submit this PROGRAM as a

revision to the Federally approved SIP. In addition, the CAA directs

the Environmental Protection Agency (EPA) to oversee these small

business assistance programs and report to Congress on their

implementation. The requirements for establishing a PROGRAM are set out

in Section 507 of Title V of the CAA. In January 1992, EPA issued

Guidelines for the Implementation of Section 507 of the 1990 Clean Air

Act Amendments, in order to delineate the Federal and State roles in

meeting the new statutory provisions and as a tool to provide further

guidance to the States on submitting acceptable SIP revisions.

The State of Alaska has submitted a SIP revision to EPA in order to

satisfy the requirements of Section 507. In order to gain full

approval, the State

[[Page 46022]]

submittal must provide for each of the following PROGRAM elements: (1)

the establishment of a Small Business Assistance Program (SBAP) to

provide technical and compliance assistance to small businesses; (2)

the establishment of a State Small Business Ombudsman to represent the

interests of small businesses in the regulatory process; and (3) the

creation of a Compliance Advisory Panel to determine and report on the

overall effectiveness of the SBAP.

II. Analysis

1. Small Business Assistance Program

Section 507(a) sets forth six requirements1 that the State

must meet to have an approvable SBAP. The first requirement is to

establish adequate mechanisms for developing, collecting and

coordinating information concerning compliance methods and technologies

for small business stationary sources, and programs to encourage lawful

cooperation among such sources and other persons to further compliance

with the Act. The State of Alaska has met this requirement by

developing its SBAP with both proactive and reactive components. The

proactive element will use outreach techniques to develop and

distribute compliance and technical information to small businesses,

including details on their rights and obligations, alternative control

technologies, and compliance methods. These techniques will include

direct mail, public service announcements, and meetings with small

businesses. The reactive element will use a telephone hot line to

receive questions from small businesses. In addition, the SBAP will

maintain a clearinghouse of information, in the form of a library of

documents and computer files, relevant to the compliance alternatives

available to small businesses.

\1\A seventh requirement of Section 507(a), establishment of an

Ombudsman office, is discussed in the next section.

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The second requirement is to establish adequate mechanisms for

assisting small business stationary sources with pollution prevention

and accidental release detection and prevention, including providing

information concerning alternative technologies, process changes,

products and methods of operation that help reduce air pollution. The

State has met this requirement by planning to provide small businesses

with information and assistance on accidental release prevention and

detection. This information may include requirements under the

accidental release provisions of the CAA, requirements of the Superfund

Amendments and Reauthorization Act title III, Occupational Safety and

Health administration process safety standards, as well as general

information on prevention practices and technologies. The State of

Alaska's non-regulatory pollution prevention program will provide the

SBAP with direct pollution prevention support and expertise. The

pollution prevention office will utilize both State and regional

pollution prevention resources to provide direct pollution prevention

technical assistance to small businesses.

The third requirement is to develop a compliance and technical

assistance program for small business stationary sources which assists

small businesses in determining applicable requirements and in

receiving permits under the Act in a timely and efficient manner. The

State has met this requirement by planning to develop its SBAP with a

main emphasis on assisting small businesses in obtaining any necessary

air quality operating permits. The SBAP plans to use workshops to guide

small businesses through the air quality operating permit application

process. In addition, the SBAP will develop source specific outreach

materials on the responsibilities of small businesses established

through existing and future CAA requirements.

The fourth requirement is to develop adequate mechanisms to assure

that small business stationary sources receive notice of their rights

under the Act in such manner and form as to assure reasonably adequate

time for such sources to evaluate compliance methods and any relevant

or applicable proposed or final regulations or standards issued under

the Act. The State has met this requirement by planning to use direct

mailing, public service announcements, and meetings with small

businesses to notify them of their rights and obligations under air

quality requirements in a timely manner.

The fifth requirement is to develop adequate mechanisms for

informing small business stationary sources of their obligations under

the Act, including mechanisms for referring such sources to qualified

auditors or, at the option of the State, for providing audits of the

operations of such sources to determine compliance with the Act. The

State has met this requirement by planning to establish a voluntary on-

site evaluation program to help small businesses determine if their

operations comply with the Act.

The sixth requirement is to develop procedures for consideration of

requests from small business stationary sources for modification of (A)

any work practice or technological method of compliance, or (B) the

schedule of milestones for implementing such work practice or method of

compliance preceding any applicable compliance date, based on the

technological and financial capability of any such small business

stationary source. The State has met this requirement by planning to

develop procedures, by regulation, to respond to requests from small

businesses for work practice modifications. The State of Alaska will

develop these procedures concurrently with its revisions to Alaska's

air quality regulations, and follow the requirements of Alaska's

Administrative Procedure Act. The regulations that address requirements

for work practice modification requests will be submitted by Alaska

with its Title V Operating Permits Program, and become effective upon

EPA approval of Alaska's Title V Operating Permits Program.

2. Ombudsman

Section 507(a)(3) requires the designation of a State office to

serve as the Ombudsman for small business stationary sources. The State

has met this requirement by establishing the position of Small Business

Advocate, which will promote the rights and concerns of small

businesses. The Small Business Advocate is separate from the SBAP and

independent from Alaska's Air Quality Management Program.

3. Compliance Advisory Panel

Section 507(e) requires the State to establish a Compliance

Advisory Panel (CAP) that must include two members selected by the

Governor who are not owners or representatives of owners of small

businesses; four members selected by the State legislature who are

owners, or represent owners, of small businesses; and one member

selected by the head of the agency in charge of the Air Pollution

Permit Program. The State has met this requirement by appointing its

CAP in accordance with the above requirements.

In addition to establishing the minimum membership of the CAP the

CAA delineates four responsibilities of the Panel: (1) to render

advisory opinions concerning the effectiveness of the SBAP,

difficulties encountered and the degree and severity of enforcement

actions; (2) to periodically report to EPA concerning the SBAP's

adherence to the principles of the Paperwork Reduction Act, the Equal

Access to Justice Act, and the Regulatory Flexibility Act2; (3) to

[[Page 46023]]

review and assure that information for small business stationary

sources is easily understandable; and (4) to develop and disseminate

the reports and advisory opinions made through the SBAP. The State has

met these requirements by directing its CAP to meet the above areas of

responsibility.

\2\Section 507(e)(1)(B) requires the CAP to report on the

compliance of the SBAP with these three Federal statutes. However,

since State agencies are not required to comply with them, EPA

believes that the State PROGRAM must merely require the CAP to

report on whether the SBAP is adhering to the general principles of

these Federal statutes.

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4. Eligibility

Section 507(c)(1) of the CAA defines the term ``small business

stationary source'' as a stationary source that:

(A) Is owned or operated by a person who employs 100 or fewer

individuals;

(B) Is a small business concern as defined in the Small Business

Act;

(C) Is not a major stationary source;

(D) Does not emit 50 tons per year (tpy) or more of any regulated

pollutant; and

(E) Emits less than 75 tpy of all regulated pollutants.

In addition, under Section 507(c)(2) of the CAA a State may, upon

petition by a source and after notice and opportunity for comment,

include as a ``small business stationary source'' any source that does

not meet the provisions of Sections 507(c)(1) (C), (D), and (E) of the

CAA but does not emit more than 100 tpy of all regulated pollutants.

Under Alaska's PROGRAM, a facility is a ``small business facility''

and thus eligible for assistance under the PROGRAM if the facility:

(A) Is owned or operated by a person who employs 100 or fewer

individuals;

(B) Is a small business concern as defined in 15 U.S.C. 631 (Small

Business Act); and

(C) Emits less than 100 tpy of regulated air contaminants. Alaska

Statutes 46.14.990(22). Alaska has therefore expanded PROGRAM

eligibility by statute to include all sources that could apply for

eligibility on a case-by-case basis under Section 507(c)(2) of the CAA

after notice and opportunity for comment. Based on assurances from the

State, EPA believes that Alaska's definition of eligible sources will

not interfere with the State's obligation to provide assistance to

``small business stationary sources'' as defined under Section

507(c)(1) of the CAA and that it is therefore consistent with Section

507(c) of the Clean Air Act.

In addition, the State of Alaska has provided, as required by

Section 507(3) of the CAA, for exclusion from the small business

stationary source definition, after consultation with the EPA and the

Small Business Administration Administrator and after providing notice

and opportunity for public comment, of any category or subcategory of

sources that the State determines to have sufficient technical and

financial capabilities to meet the requirements of the CAA. The State

of Alaska has also established a mechanism based on direct assistance

from the Small Business Advocate for ascertaining the eligibility of a

source to receive assistance under the PROGRAM, including an evaluation

of a source's eligibility under Section 507(c) of the CAA.

III. This Action

In this action, EPA approves the SIP revision submitted by the

State of Alaska.

The State of Alaska has submitted a SIP revision implementing each

of the PROGRAM elements required by Section 507 of the CAA. At this

time, the SBAP, Small Business Advocate, and CAP are in place.

IV. Administrative Review

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

By this action, the EPA is approving a State program created for

the purpose of assisting small businesses in complying with existing

statutory and regulatory requirements. The program being approved in

this action does not impose any new regulatory burden on small

businesses; it is a program under which small businesses may elect to

take advantage of assistance provided by the state. Therefore, because

the EPA's approval of this program does not impose any new regulatory

requirements on small businesses, I certify that it does not have a

significant economic impact on any small business entities affected.

SIP approvals under section 110 and subchapter I, Part D of the CAA

do not create any new requirements, but simply approve requirements

that the state is already imposing. Therefore, because the federal SIP-

approval does not impose any new requirements, I certify that it does

not have a significant impact on any small entities affected. Moreover,

due to the nature of the federal-state relationship under the CAA,

preparation of a regulatory flexibility analysis would constitute

federal inquiry into the economic reasonableness of state action. The

CAA forbids EPA to base its actions concerning SIPs on such grounds.

Union Electric Co. v. U.S.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42

U.S.C. 7410(a)(2).

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves pre-

existing requirements under State or local law, and imposes no new

Federal requirements. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, result from this

action.

The EPA has reviewed this request for revision of the Federally-

approved SIP for conformance with the provisions of the 1990 Clean Air

Act Amendments enacted on November 15, 1990. The EPA has determined

that this action conforms with those requirements.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic and

environmental factors and in relation to relevant statutory and

regulatory requirements.

This action has been classified as a Table 3 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by a July 10, 1995

memorandum from Mary Nichols, Assistant Administrator for Air and

Radiation. The Office of Management and Budget (OMB) has exempted this

regulatory

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action from Executive Order 12866 review.

The EPA is publishing this action without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse comments. However, in a separate document in this Federal

Register publication, the EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. This action will be

effective November 6, 1995 unless, by October 5, 1995, adverse or

critical comments are received.

If the EPA receives such comments, this action will be withdrawn

before the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will be

addressed in a subsequent final rule based on this action serving as a

proposed rule. The EPA will not institute a second comment period on

this action. Any parties interested in commenting on this action should

do so at this time. If no such comments are received, the public is

advised that this action will be effective November 6, 1995.

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by November 6, 1995. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements.

(See section 307(b)(2), 42 U.S.C. 7607(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Small Business Assistance Program.

Note: Incorporation by reference of the Implementation Plan for

the State of Alaska was approved by the Director of the Office of

Federal Register on July 1, 1982.

Dated: August 15, 1995.

Jane S. Moore,

Acting Regional Administrator.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

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

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

Subpart C--Alaska

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

follows:

Sec. 52.70 Identification of plan.

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(c) * * *

(20) On April 18, 1994, the Commissioner of the Alaska Department

of Environmental Conservation (ADEC) submitted ``The Alaska Air Quality

Small Business Assistance Program State Air Quality Control Plan

Amendment,'' adopted April 8, 1994, as a revision to the Alaska SIP.

(i) Incorporation by reference.

(A) Letter dated April 8, 1994, from the Commissioner of ADEC to

the Regional Administrator of EPA, submitting ``The Alaska Air Quality

Small Business Assistance Program State Air Quality Control Plan

Amendment'' to EPA; the Alaska Air Quality Small Business Assistance

Program State Air Quality Control Plan Amendment (which includes

Appendix A the Alaska Statutes Title 46, Chapter 14, Article 3), dated

April 1994, and adopted April 8, 1994.

(ii) Additional information.

(A) Letter dated July 24, 1995, from Alaska Department of

Environmental Conservation, submitting information necessary for

approval of the SBAP revision to EPA; the July 1995 SBAP Update,

Responses to EPA Comments, and the Air Quality/Small Business

Assistance Compliance Advisory Panel Board Information.

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[FR Doc. 95-21875 Filed 9-1-95; 8:45 am]

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