Air quality implementation plans; approval and promulgation; various States: Alaska,

[Federal Register: August 18, 1998 (Volume 63, Number 159)]

[Proposed Rules]

[Page 44208-44211]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr18au98-30]

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.

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:

1. 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.

2. 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.

3. Proposed Action

   1. 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.

   2. Revisions to Current Provisions

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

      [[Page 44209]]

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

   3. 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.

   4. 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.

   5. 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.)

   6. 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).

   7. 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.

   8. Editorial Changes

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

      [[Page 44210]]

      approve the amended rules as revisions to the Alaska SIP.

4. 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.

5. Administrative Review

   1. 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.

   2. 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).

   3. 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.

   4. Alaska's Audit Law

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

      [[Page 44211]]

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

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

      List of Subjects in 40 CFR Part 52

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

      Dated: August 10, 1998. Chuck Clarke, Regional Administrator, Region 10.

      [FR Doc. 98-22194Filed8-17-98; 8:45 am]

      BILLING CODE 6560-50-P