[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
