Approval and Promulgation of Implementation Plans; Alaska

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

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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

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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

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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]

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