[Federal Register Volume 79, Number 136 (Wednesday, July 16, 2014)]
[Proposed Rules]
[Pages 41496-41509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-16729]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2014-0140, FRL-9913-83-Region 10]
Approval and Promulgation of Implementation Plans; Alaska:
Infrastructure Requirements for the 1997 and 2006 Fine Particulate
Matter and 2008 Ozone National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve the Alaska State Implementation Plan (SIP) as meeting specific
infrastructure requirements of the Clean Air Act (CAA) for the National
Ambient Air Quality Standards (NAAQS) promulgated for fine particulate
matter (PM2.5) on July 18, 1997, and October 17, 2006, and
for ozone on March 12, 2008. Whenever a new or revised NAAQS is
promulgated, the CAA requires states to submit a plan for the
implementation, maintenance and enforcement of such NAAQS. The plan is
required to address basic program elements, including but not limited
to regulatory structure, monitoring, modeling, legal authority, and
adequate resources necessary to implement, maintain, and enforce the
standards. These elements are referred to as infrastructure
requirements. As discussed further below, final action is
[[Page 41497]]
contingent upon the EPA first taking final action on separately-
submitted revisions to the Alaska SIP to reflect changes to the NAAQS
and associated Federal prevention of significant deterioration
permitting requirements. Final action on those SIP revisions will be
addressed in a separate action.
DATES: Comments must be received on or before August 15, 2014.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2014-0140, by any of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
Email: [email protected].
Mail: Kristin Hall, EPA Region 10, Office of Air, Waste
and Toxics (AWT-107), 1200 Sixth Avenue, Suite 900, Seattle, WA 98101.
Hand Delivery: EPA Region 10 Mailroom, 9th Floor, 1200
Sixth Avenue, Suite 900, Seattle, WA 98101. Attention: Kristin Hall,
Office of Air, Waste and Toxics, AWT-107. Such deliveries are only
accepted during normal hours of operation, and special arrangements
should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R10-OAR-
2014-0140. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information the
disclosure of which is restricted by statute. Do not submit information
that you consider to be CBI or otherwise protected through
www.regulations.gov or email. The www.regulations.gov Web site is an
``anonymous access'' system, which means the EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to the EPA without
going through www.regulations.gov your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, the EPA recommends that you include your
name and other contact information in the body of your comment and with
any disk or CD-ROM you submit. If the EPA cannot read your comment due
to technical difficulties and cannot contact you for clarification, the
EPA may not be able to consider your comment. Electronic files should
avoid the use of special characters, any form of encryption, and be
free of any defects or viruses.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
the disclosure of which is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy. Publicly available
docket materials are available either electronically in
www.regulations.gov or in hard copy during normal business hours at the
Office of Air, Waste and Toxics, EPA Region 10, 1200 Sixth Avenue,
Seattle, WA 98101.
FOR FURTHER INFORMATION CONTACT: Kristin Hall at (206) 553-6357,
[email protected], or the above EPA, Region 10 address.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us'' or ``our'' is used, it is intended to refer to the EPA.
Information is organized as follows:
Table of Contents
I. Background
II. CAA Sections 110(a)(1) and (2) Infrastructure Elements
III. EPA Approach to Review of Infrastructure SIP Submissions
IV. Analysis of the Alaska Submissions
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. Background
On July 18, 1997, the EPA promulgated a new 24-hour and a new
annual NAAQS for fine particulate matter (PM2.5) (62 FR
38652). More recently, on October 17, 2006, the EPA revised the
standards for PM2.5, tightening the 24-hour PM2.5
standard from 65 micrograms per cubic meter ([micro]/m\3\) to 35
[micro]/m\3\, and retaining the current annual PM2.5
standard at 15 [micro]/m\3\ (71 FR 61144). In addition, on March 12,
2008, the EPA revised the levels of the primary and secondary 8-hour
ozone standards to 0.075 parts per million (73 FR 16436).
The CAA requires SIPs meeting the requirements of sections
110(a)(1) and (2) be submitted by states within three years after
promulgation of a new or revised standard. Sections 110(a)(1) and (2)
require states to address basic SIP requirements, so-called
``infrastructure'' elements. To assist states, the EPA issued several
guidance documents. On October 2, 2007, the EPA issued guidance to
address infrastructure SIP elements for the 1997 ozone and 1997
PM2.5 NAAQS.\1\ On September 25, 2009, the EPA issued
guidance to address infrastructure SIP elements for the 2006 24-hour
PM2.5 NAAQS.\2\ On September 13, 2013, the EPA issued
guidance to address infrastructure SIP elements for multiple
pollutants, including the 2008 ozone NAAQS.\3\ As noted in the guidance
documents, to the extent an existing SIP already meets the CAA section
110(a)(2) requirements, states may certify that fact via a letter to
the EPA.
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\1\ William T. Harnett, Director, Air Quality Policy Division,
Office of Air Quality Planning and Standards. ``Guidance on SIP
Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-
hour Ozone and PM2.5 National Ambient Air Quality
Standards.'' Memorandum to EPA Air Division Directors, Regions I-X,
October 2, 2007.
\2\ William T. Harnett, Director, Air Quality Policy Division,
Office of Air Quality Planning and Standards. ``Guidance on SIP
Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
hour Fine Particle (PM2.5) National Ambient Air Quality
Standards (NAAQS).'' Memorandum to Regional Air Division Directors,
Regions I-X, September 25, 2009.
\3\ Stephen D. Page, Director, Office of Air Quality Planning
and Standards. ``Guidance on Infrastructure State Implementation
Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and
110(a)(2).'' Memorandum to EPA Air Division Directors, Regions 1-10,
September 13, 2013.
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On July 9, 2012, the Alaska Department of Environmental
Conservation (ADEC) submitted to the EPA a certification that Alaska's
SIP meets the infrastructure requirements for multiple NAAQS, including
the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008
ozone, and 2008 lead NAAQS. The certification included an analysis of
Alaska's SIP as it relates to each section of the infrastructure
requirements at CAA section 110(a)(2). The State provided notice of
public comment and an opportunity for public hearing on the submission
from March 4, 2012, through April 10, 2012. Notices were published in
the Anchorage Daily News on March 4 and March 5, 2012, the Fairbanks
Daily News-Miner on March 5 and March 6, 2012, and the Juneau Empire on
March 6, 2012. The State extended the comment period to April 24, 2012,
and provided notice of the extension in the same publications. The EPA
has evaluated the State's July 9, 2012, submission and determined that
the State met the requirements for reasonable notice and public hearing
under section 110(a)(2) of the CAA.
Previously, on March 29, 2011, Alaska submitted the ``Alaska
Interstate Transport of Pollution SIP'' to address the requirements of
CAA section 110(a)(2)(D)(i) for the 2006 PM2.5 and 2008
ozone NAAQS. The State provided notice and an opportunity for public
comment on the submission from October 7, 2010, through November 19,
[[Page 41498]]
2010. A notice of public hearing was published in the Anchorage Daily
News and the Fairbanks Daily News-Miner on October 9, October 10, and
October 11, 2010, and the Peninsula Clarion on October 25, October 26,
and October 27, 2010. The State extended the comment period to December
6, 2010, and provided notice of the extension in the same publications.
The State held a public hearing on November 16, 2010, in Anchorage,
Alaska. The EPA has evaluated the State's March 29, 2011, submission
and determined that the State met the requirements for reasonable
notice and public hearing under section 110(a)(2) of the CAA.
At this time, the EPA is acting on the Alaska submissions for
110(a)(2) required elements as they relate to the 1997
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS. This
action does not address the CAA infrastructure requirements with
respect to the 1997 ozone NAAQS, which we approved on October 22, 2012
(77 FR 64425). This action also does not address the CAA infrastructure
requirements of the 2008 lead NAAQS, which we intend to address in a
separate action. This action also does not address the interstate
transport requirements of CAA section 110(a)(2)(D)(i) for the 1997
PM2.5 NAAQS, which we previously approved on October 15,
2008 (73 FR 60955), nor the interstate transport requirements of
110(a)(2)(D)(i)(I) for the 2006 PM2.5 and 2008 ozone NAAQS
which we are addressing in a separate action (proposed April 28, 2014,
79 FR 23303). Finally, this action does not address the emergency
episode requirements of 110(a)(2)(G) for the 1997 PM2.5 and
2006 PM2.5 NAAQS. We intend to address them in a separate
action.
II. CAA Sections 110(a)(1) and (2) Infrastructure Elements
CAA section 110(a)(1) provides the procedural and timing
requirements for SIP submissions after a new or revised NAAQS is
promulgated. CAA section 110(a)(2) lists specific elements that states
must meet for ``infrastructure'' SIP requirements related to a newly
established or revised NAAQS. These requirements include SIP
infrastructure elements such as modeling, monitoring, and emissions
inventories that are designed to assure attainment and maintenance of
the NAAQS. The requirements, with their corresponding CAA subsection,
are listed below:
110(a)(2)(A): Emission limits and other control measures.
110(a)(2)(B): Ambient air quality monitoring/data system.
110(a)(2)(C): Program for enforcement of control measures.
110(a)(2)(D): Interstate transport.
110(a)(2)(E): Adequate resources.
110(a)(2)(F): Stationary source monitoring system.
110(a)(2)(G): Emergency power.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(I): Areas designated nonattainment and meet the
applicable requirements of part D.
110(a)(2)(J): Consultation with government officials;
public notification; and Prevention of Significant Deterioration (PSD)
and visibility protection.
110(a)(2)(K): Air quality modeling/data.
110(a)(2)(L): Permitting fees.
110(a)(2)(M): Consultation/participation by affected local
entities.
The EPA's guidance clarified that two elements identified in CAA
section 110(a)(2) are not governed by the three year submission
deadline of CAA section 110(a)(1) because SIPs incorporating necessary
local nonattainment area controls are not due within three years after
promulgation of a new or revised NAAQS, but rather due at the time the
nonattainment area plan requirements are due pursuant to CAA section
172 and the various pollutant specific subparts 2-5 of part D. These
requirements are: (i) Submissions required by CAA section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required in
part D, title I of the CAA, and (ii) submissions required by CAA
section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D, title I of the CAA. As a result, this action
does not address infrastructure elements related to CAA section
110(a)(2)(C) with respect to nonattainment new source review (NSR) or
CAA section 110(a)(2)(I). Furthermore, the EPA interprets the CAA
section 110(a)(2)(J) provision on visibility as not being triggered by
a new NAAQS because the visibility requirements in part C, title I of
the CAA are not changed by a new NAAQS.
III. EPA Approach To Review of Infrastructure SIP Submissions
The EPA is acting upon the SIP submissions from Alaska that address
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2)
for the 1997 PM2.5, 2006 PM2.5, and 2008 ozone
NAAQS. The requirement for states to make a SIP submission of this type
arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1),
states must make SIP submissions ``within 3 years (or such shorter
period as the Administrator may prescribe) after the promulgation of a
national primary ambient air quality standard (or any revision
thereof),'' and these SIP submissions are to provide for the
``implementation, maintenance, and enforcement'' of such NAAQS. The
statute directly imposes on states the duty to make these SIP
submissions, and the requirement to make the submissions is not
conditioned upon the EPA's taking any action other than promulgating a
new or revised NAAQS. Section 110(a)(2) includes a list of specific
elements that ``[e]ach such plan'' submission must address.
The EPA has historically referred to these SIP submissions made for
the purpose of satisfying the requirements of CAA sections 110(a)(1)
and 110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, the EPA uses the
term to distinguish this particular type of SIP submission from
submissions that are intended to satisfy other SIP requirements under
the CAA, such as ``nonattainment SIP'' or ``attainment plan SIP''
submissions to address the nonattainment planning requirements of part
D of title I of the CAA, ``regional haze SIP'' submissions required by
the EPA rule to address the visibility protection requirements of CAA
section 169A, and nonattainment new source review permit program
submissions to address the permit requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\4\ The EPA therefore
believes that while the timing requirement in section 110(a)(1) is
unambiguous, some of the other statutory provisions are ambiguous. In
particular, the EPA believes that the list of required elements for
infrastructure SIP submissions provided in section 110(a)(2) contains
ambiguities concerning what is required for
[[Page 41499]]
inclusion in an infrastructure SIP submission.
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\4\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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The following examples of ambiguities illustrate the need for the
EPA to interpret some section 110(a)(1) and section 110(a)(2)
requirements with respect to infrastructure SIP submissions for a given
new or revised NAAQS. One example of ambiguity is that section
110(a)(2) requires that ``each'' SIP submission must meet the list of
requirements therein, while the EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of title I of the
CAA, which specifically address nonattainment SIP requirements.\5\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires the EPA to establish a schedule for submission of such plans
for certain pollutants when the Administrator promulgates the
designation of an area as nonattainment, and section 107(d)(1)(B)
allows up to two years, or in some cases three years, for such
designations to be promulgated.\6\ This ambiguity illustrates that
rather than apply all the stated requirements of section 110(a)(2) in a
strict literal sense, the EPA must determine which provisions of
section 110(a)(2) are applicable for a particular infrastructure SIP
submission.
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\5\ See, e.g., ``Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOx SIP Call; Final Rule,''
70 FR 25162, at 25163-65 (May 12, 2005) (explaining relationship
between timing requirement of section 110(a)(2)(D) versus section
110(a)(2)(I)).
\6\ The EPA notes that this ambiguity within section 110(a)(2)
is heightened by the fact that various subparts of part D set
specific dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
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Another example of ambiguity within sections 110(a)(1) and
110(a)(2) with respect to infrastructure SIPs pertains to whether
states must meet all of the infrastructure SIP requirements in a single
SIP submission, and whether the EPA must act upon such SIP submission
in a single action. Although section 110(a)(1) directs states to submit
``a plan'' to meet these requirements, the EPA interprets the CAA to
allow states to make multiple SIP submissions separately addressing
infrastructure SIP elements for the same NAAQS. If states elect to make
such multiple SIP submissions to meet the infrastructure SIP
requirements, the EPA can elect to act on such submissions either
individually or in a larger combined action.\7\ Similarly, the EPA
interprets the CAA to allow it to take action on the individual parts
of one larger, comprehensive infrastructure SIP submission for a given
NAAQS without concurrent action on the entire submission. For example,
the EPA has sometimes elected to act at different times on various
elements and sub-elements of the same infrastructure SIP submission.\8\
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\7\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (the EPA's final action approving the
structural PSD elements of the New Mexico SIP submitted by the State
separately to meet the requirements of the EPA's 2008
PM2.5 NSR rule), and ``Approval and Promulgation of Air
Quality Implementation Plans; New Mexico; Infrastructure and
Interstate Transport Requirements for the 2006 PM2.5
NAAQS,'' (78 FR 4337) (January 22, 2013) (the EPA's final action on
the infrastructure SIP for the 2006 PM2.5 NAAQS).
\8\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to the EPA demonstrating that the State meets the
requirements of sections 110(a)(1) and (2). The EPA proposed action
for infrastructure SIP elements (C) and (J) on January 23, 2012 (77
FR 3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), the
EPA took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submission.
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Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise
with respect to infrastructure SIP submission requirements for
different NAAQS. Thus, the EPA notes that not every element of section
110(a)(2) would be relevant, or as relevant, or relevant in the same
way, for each new or revised NAAQS. The states' attendant
infrastructure SIP submissions for each NAAQS therefore could be
different. For example, the monitoring requirements that a state might
need to meet in its infrastructure SIP submission for purposes of
section 110(a)(2)(B) could be very different for different pollutants,
for example because the content and scope of a state's infrastructure
SIP submission to meet this element might be very different for an
entirely new NAAQS than for a minor revision to an existing NAAQS.\9\
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\9\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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The EPA notes that interpretation of section 110(a)(2) is also
necessary when the EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, the
EPA also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires that attainment plan SIP
submissions required by part D have to meet the ``applicable
requirements'' of section 110(a)(2). Thus, for example, attainment plan
SIP submissions must meet the requirements of section 110(a)(2)(A)
regarding enforceable emission limits and control measures and section
110(a)(2)(E)(i) regarding air agency resources and authority. By
contrast, it is clear that attainment plan SIP submissions required by
part D would not need to meet the portion of section 110(a)(2)(C) that
pertains to the PSD program required in part C of title I of the CAA,
because PSD does not apply to a pollutant for which an area is
designated nonattainment and thus subject to part D planning
requirements. As this example illustrates, each type of SIP submission
may implicate some elements of section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), the EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, the EPA assumes that Congress could not
have intended that each and every SIP submission, regardless of the
NAAQS in question or the history of SIP development for the relevant
pollutant, would meet each of the requirements, or meet each of them in
the same way. Therefore, the EPA has adopted an approach under which it
reviews infrastructure SIP submissions against the list of elements in
section 110(a)(2), but only to the extent each element applies for that
particular NAAQS.
Historically, the EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\10\ The
EPA most
[[Page 41500]]
recently issued guidance for infrastructure SIPs on September 13, 2013
(2013 Guidance).\11\ The EPA developed this document to provide states
with up-to-date guidance for infrastructure SIPs for any new or revised
NAAQS. Within this guidance, the EPA describes the duty of states to
make infrastructure SIP submissions to meet basic structural SIP
requirements within three years of promulgation of a new or revised
NAAQS. The EPA also made recommendations about many specific
subsections of section 110(a)(2) that are relevant in the context of
infrastructure SIP submissions.\12\ The guidance also discusses the
substantively important issues that are germane to certain subsections
of section 110(a)(2). Significantly, the EPA interprets sections
110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need
to address certain issues and need not address others. Accordingly, the
EPA reviews each infrastructure SIP submission for compliance with the
applicable statutory provisions of section 110(a)(2), as appropriate.
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\10\ The EPA notes, however, that nothing in the CAA requires
the EPA to provide guidance or to promulgate regulations for
infrastructure SIP submissions. The CAA directly applies to states
and requires the submission of infrastructure SIP submissions,
regardless of whether or not the EPA provides guidance or
regulations pertaining to such submissions. EPA elects to issue such
guidance in order to assist states, as appropriate.
\11\ ``Guidance on Infrastructure State Implementation Plan
(SIP) Elements under Clean Air Act Sections 110(a)(1) and
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
\12\ The EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions
regarding section 110(a)(2)(D)(i)(I).
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As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, the
EPA reviews infrastructure SIP submissions to ensure that the state's
SIP appropriately addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains the EPA's
interpretation that there may be a variety of ways by which states can
appropriately address these substantive statutory requirements,
depending on the structure of an individual state's permitting or
enforcement program (e.g., whether permits and enforcement orders are
approved by a multi-member board or by a head of an executive agency).
However they are addressed by the state, the substantive requirements
of section 128 are necessarily included in the EPA's evaluation of
infrastructure SIP submissions because section 110(a)(2)(E)(ii)
explicitly requires that the state satisfy the provisions of section
128.
As another example, the EPA's review of infrastructure SIP
submissions with respect to the PSD program requirements in sections
110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD
program requirements contained in part C and the EPA's PSD regulations.
Structural PSD program requirements include provisions necessary for
the PSD program to address all regulated sources and NSR pollutants,
including greenhouse gases. By contrast, structural PSD program
requirements do not include provisions that are not required under the
EPA's regulations at 40 CFR 51.166 but are merely available as an
option for the state, such as the option to provide grandfathering of
complete permit applications with respect to the 2012 PM2.5
NAAQS. Accordingly, the latter optional provisions are types of
provisions the EPA considers irrelevant in the context of an
infrastructure SIP action.
For other section 110(a)(2) elements, however, the EPA's review of
a state's infrastructure SIP submission focuses on assuring that the
state's SIP meets basic structural requirements. For example, section
110(a)(2)(C) includes, inter alia, the requirement that states have a
program to regulate minor new sources. Thus, the EPA evaluates whether
the state has an EPA-approved minor new source review program and
whether the program addresses the pollutants relevant to that NAAQS. In
the context of acting on an infrastructure SIP submission, however, the
EPA does not think it is necessary to conduct a review of each and
every provision of a state's existing minor source program (i.e.,
already in the existing SIP) for compliance with the requirements of
the CAA and EPA's regulations that pertain to such programs.
With respect to certain other issues, the EPA does not believe that
an action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction that may be contrary to the CAA and the EPA's
policies addressing such excess emissions (``SSM''); (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by the EPA; and (iii)
existing provisions for PSD programs that may be inconsistent with
current requirements of the EPA's ``Final NSR Improvement Rule,'' 67 FR
80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007).
Thus, the EPA believes it may approve an infrastructure SIP submission
without scrutinizing the totality of the existing SIP for such
potentially deficient provisions and may approve the submission even if
it is aware of such existing provisions.\13\ It is important to note
that the EPA's approval of a state's infrastructure SIP submission
should not be construed as explicit or implicit re-approval of any
existing potentially deficient provisions that relate to the three
specific issues just described.
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\13\ By contrast, the EPA notes that if a state were to include
a new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption for excess emissions
during SSM events, then the EPA would need to evaluate that
provision for compliance against the rubric of applicable CAA
requirements in the context of the action on the infrastructure SIP.
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The EPA's approach to review of infrastructure SIP submissions is
to identify the CAA requirements that are logically applicable to that
submission. The EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in 110(a)(2) as requiring review of
each and every provision of a state's existing SIP against all
requirements in the CAA and the EPA regulations merely for purposes of
assuring that the state in question has the basic structural elements
for a functioning SIP for a new or revised NAAQS. Because SIPs have
grown by accretion over the decades as statutory and regulatory
requirements under the CAA have evolved, they may include some outmoded
provisions and historical artifacts. These provisions, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when the EPA evaluates adequacy of the infrastructure
SIP submission. The EPA believes that a better approach is for states
and the EPA to focus attention on those elements of section 110(a)(2)
of the CAA most likely to warrant a specific SIP revision due to the
promulgation of a new or revised NAAQS or other factors.
For example, the EPA's 2013 Guidance gives simpler recommendations
with respect to carbon monoxide than other NAAQS pollutants to meet the
visibility
[[Page 41501]]
requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide
does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II).
Finally, the EPA believes that its approach with respect to
infrastructure SIP requirements is based on a reasonable reading of
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the EPA to take appropriately
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes the EPA to issue a ``SIP
call'' whenever the EPA determines that a state's SIP is substantially
inadequate to attain or maintain the NAAQS, to mitigate interstate
transport, or to otherwise comply with the CAA.\14\ Section 110(k)(6)
authorizes the EPA to correct errors in past actions, such as past
approvals of SIP submissions.\15\ Significantly, the EPA's
determination that an action on a state's infrastructure SIP submission
is not the appropriate time and place to address all potential existing
SIP deficiencies does not preclude the EPA's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action to
correct those deficiencies at a later time. For example, although it
may not be appropriate to require a state to eliminate all existing
inappropriate director's discretion provisions in the course of acting
on an infrastructure SIP submission, the EPA believes that section
110(a)(2)(A) may be among the statutory bases that EPA relies upon in
the course of addressing such deficiency in a subsequent action.\16\
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\14\ For example, the EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
\15\ The EPA has used this authority to correct errors in past
actions on SIP submissions related to PSD programs. See ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). The EPA has
previously used its authority under CAA section 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
\16\ See, e.g., the EPA's disapproval of a SIP submission from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21,
2010) (proposed disapproval of director's discretion provisions); 76
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
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IV. Analysis of the Alaska Submissions
The July 9, 2012, submission summarizes ADEC's statutory and
regulatory authority to act on behalf of the State of Alaska in any
matter pertaining to the state air quality control plan. The submission
lists specific provisions of the Alaska Statute (AS) Title 46 Water,
Air Energy and Environmental Conservation, Chapter 03 Environmental
Conservation and Chapter 14 Air Quality Control; Alaska Administrative
Code (AAC) Title 18 Environmental Conservation (18 AAC 50); and the
Alaska SIP. The specific sections are listed below, with a discussion
of how the Alaska SIP meets the requirements. We note that on May 5,
2014, we proposed to approve a number of revisions to the Alaska SIP,
including revisions to update the SIP to reflect changes to the NAAQS
and Federal prevention of significant deterioration (PSD) permitting
requirements associated with the NAAQS (79 FR 25533). Final action on
this infrastructure SIP is contingent upon the EPA first taking final
action on the May 5, 2014, proposed approval of those separately
submitted revisions to the Alaska SIP to implement the NAAQS and
Federal PSD permitting requirements. Final action on those SIP
revisions will be addressed in a separate action.
110(a)(2)(A): Emission Limits and Other Control Measures
CAA section 110(a)(2)(A) requires SIPs to include enforceable
emission limits and other control measures, means or techniques
(including economic incentives such as fees, marketable permits, and
auctions of emissions rights), as well as schedules and timetables for
compliance, as may be necessary or appropriate to meet the applicable
requirements of the CAA.
State submission: The July 9, 2012, submission cites Alaska
environmental and air quality laws set forth at AS 46.03 and AS 46.14
and State regulations set forth at 18 AAC 50. AS 46.03.020 ``Powers of
the department'' provides authority for ADEC to adopt regulations
providing for control, prevention, and abatement of air, water, land or
subsurface land pollution. AS 46.03.860 ``Inspection warrant'' provides
authority for ADEC to investigate actual or suspected sources of
pollution or contamination, or to ascertain compliance or
noncompliance. AS 46.14.010 ``Emission control regulations'' provides
authority for ADEC to adopt regulations establishing ambient air
quality standards, emission standards, or exemptions to implement a
state air quality control program. AS 46.14.240 ``Permit administration
fees'' and AS 46.14.250 ``Emission fees'' provide authority to assess
permit administration fees and emission fees to sources. AS 46.14.515
``Inspection'' provides authority to inspect regulated sources,
including records, emissions units, monitoring equipment or methods,
and to sample any emissions the source is required to sample.
The regulations cited by ADEC include statewide ambient air quality
standards, major and minor permits, emission limits for specific
sources, transportation conformity and fees. The relevant regulations
are listed below:
18 AAC 50.005: Purpose and Applicability of Chapter.
18 AAC 50.010: Ambient Air Quality Standards.
18 AAC 50.035: Documents, Procedures, and Methods Adopted
by Reference.
18 AAC 50.040: Federal Standards Adopted by Reference.
18 AAC 50.045: Prohibitions.
18 AAC 50.050: Incinerator Emission Standards.
18 AAC 50.055: Industrial Processes and Fuel Burning
Equipment.
18 AAC 50.060: Pulp Mills.
18 AAC 50.065: Open Burning.
18 AAC 50.070: Marine Vessel Visible Emission Standards.
18 AAC 50.075: Wood Fired Heating Devices Visible Emission
Standards.
18 AAC 50.201: Ambient Air Quality Investigation.
18 AAC 50.302: Construction Permits.
18 AAC 50.306: Prevention of Significant Deterioration
Permits.
18 AAC 50.345: Construction and Operating Permits:
Standard Permit Conditions.
18 AAC 50.400-18 AAC 50.499: User Fees.
18 AAC 50.502: Minor Permits for Air Quality Protection.
18 AAC 50.540: Minor Permit Application.
18 AAC 50.542: Minor Permit Review and Issuance.
18 AAC 50.544: Minor Permits: Content.
18 AAC 50.700-18 AAC 50.735: Conformity.
[[Page 41502]]
18 AAC 50.990: Definitions.
EPA analysis: Alaska generally regulates emissions of
PM2.5 and its precursors, and ozone precursors through its
SIP-approved major and minor new source review (NSR) permitting
programs, in addition to other rules described below. We note that the
EPA does not consider SIP requirements triggered by the nonattainment
area mandates in part D, title I of the CAA to be governed by the
submission deadline of CAA section 110(a)(1). Regulations and other
control measures for purposes of attainment planning under part D,
title I of the CAA are due on a different schedule than infrastructure
SIPs.
Alaska's major NSR program generally incorporates the Federal PSD
and nonattainment NSR programs by reference into the Alaska SIP. The
EPA most recently proposed approval of revisions to Alaska's major and
minor NSR permitting programs on May 5, 2014 (79 FR 25533). After
finalizing the May 5, 2014, proposed action, the Alaska SIP will
incorporate by reference Federal PSD requirements at 40 CFR 52.21 and
40 CFR 51.166 revised as of July 1, 2011.
With respect to Alaska's minor NSR permitting program, at 18 AAC
50.502-18 AAC 50.544, we have determined that the program regulates
minor sources for purposes of the 1997 and 2006 PM2.5 NAAQS
and the 2008 ozone NAAQS. In addition to Alaska's major and minor NSR
permitting programs, Alaska's SIP contains rules that establish various
controls on emissions of particulate matter and its precursors. These
controls include incinerator emission standards, emission limits for
specific industrial processes and fuel burning equipment, emission
limits for pulp mills, open burning controls, and visible emission
limits on marine vessel emissions and wood-fired heating devices.
Based on the foregoing, we are proposing to approve the Alaska SIP
as meeting the requirements of CAA section 110(a)(2)(A) for the 1997
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS. Final
action is contingent upon the EPA first taking final action on the May
5, 2014, proposed approval of revisions to the Alaska SIP to reflect
changes to the NAAQS and Federal PSD permitting requirements.
In this action, we are not proposing to approve or disapprove any
existing state provisions with regard to excess emissions during
startup, shutdown, or malfunction (SSM) of operations at a facility.
The EPA believes that a number of states may have SSM provisions that
are contrary to the CAA and existing EPA guidance \17\ and the EPA
plans to address such state regulations in the future. In the meantime,
we encourage any state having a deficient SSM provision to take steps
to correct it as soon as possible.
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\17\ For further description of the EPA's SSM Policy, see, e.g.,
a memorandum dated September 20, 1999, titled, ``State
Implementation Plans: Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown,'' from Steven A. Herman,
Assistant Administrator for Enforcement and Compliance Assurance,
and Robert Perciasepe, Assistant Administrator for Air and
Radiation. Also, the EPA issued a proposed action on February 12,
2013, titled ``State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls to
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown and Malfunction.'' This rulemaking responds to a
petition for rulemaking filed by the Sierra Club that concerns SSM
provisions in 39 states' SIPs (February 22, 2013, 78 FR 12460).
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In addition, we are not proposing to approve or disapprove any
existing State rules with respect to director's discretion or variance
provisions. The EPA believes that a number of states may have such
provisions that are contrary to the CAA and existing EPA guidance
(November 24, 1987, 52 FR 45109), and the EPA plans to take action in
the future to address such state regulations. In the meantime, we
encourage any state having a director's discretion or variance
provision that is contrary to the CAA and EPA guidance to take steps to
correct the deficiency as soon as possible.
110(a)(2)(B): Ambient Air Quality Monitoring/Data System
CAA section 110(a)(2)(B) requires SIPs to include provisions to
provide for establishment and operation of ambient air quality
monitors, collecting and analyzing ambient air quality data, and making
these data available to the EPA upon request.
State submission: The July 9, 2012, submission references Alaska
statutory and regulatory authority to conduct ambient air monitoring
investigations. AS 46.03.020 ``Powers of the department'' paragraph (5)
provides authority to undertake studies, inquiries, surveys, or
analyses essential to the accomplishment of the purposes of ADEC. AS
46.14.180 ``Monitoring'' provides authority to require sources to
monitor emissions and ambient air quality to demonstrate compliance
with applicable permit program requirements. 18 AAC 50.201 ``Ambient
Air Quality Investigation'' provides authority to require a source to
do emissions testing, reduce emissions, and apply controls to sources.
The submission also describes Memoranda of Understanding between
ADEC and the Municipality of Anchorage (MOA) and Fairbanks North Star
Borough (FNSB) to operate air quality control programs in their
respective jurisdictions. ADEC's Air Non-Point Mobile Source Program
and Air Monitoring & Quality Assurance Program work with MOA and FNSB
to prepare Alaska's annual ambient air monitoring network plan, the
most recent of which is the 2012 Alaska Air Monitoring Network Plan.
Alaska collects and validates State and Local Air Monitoring Stations
and Special Purpose Monitoring ambient air quality monitoring data and
electronically reports these data to the EPA through the Air Quality
System (AQS) on a quarterly basis. ADEC's revised ``Quality Assurance
Project Plan for the State of Alaska Air Monitoring and Quality
Assurance Program'' was adopted by reference into the State Air Quality
Control Plan on October 29, 2010.
EPA analysis: A comprehensive air quality monitoring plan, intended
to meet requirements of 40 CFR part 58 was submitted by Alaska to the
EPA on January 18, 1980 (40 CFR 52.70) and approved by the EPA on April
15, 1981. This air quality monitoring plan has been subsequently
updated and approved by the EPA on March 10, 2014. This plan includes,
among other things, the locations for ozone and particulate matter
monitoring. Alaska makes this plan available for public review at
http://www.dec.state.ak.us/air/am/index.htm. Based on the foregoing, we
are proposing to approve the Alaska SIP as meeting the requirements of
CAA section 110(a)(2)(B) for the 1997 PM2.5, 2006
PM2.5, and 2008 ozone NAAQS.
110(a)(2)(C): Program for Enforcement of Control Measures
CAA section 110(a)(2)(C) requires states to include a program
providing for enforcement of all SIP measures and the regulation of
construction of new or modified stationary sources, including a program
to meet PSD and nonattainment NSR requirements.
State submission: The July 9, 2012, submission refers to ADEC's
statutory authority to regulate stationary sources via an air
permitting program established in AS 46.14 ``Air Quality Control,''
Article 01 ``General Regulations and Classifications'' and Article 02
``Emission Control Permit Program.'' The submission states that ADEC's
PSD/NSR programs were approved by the EPA on August 14, 2007 (72 FR
45378). The submission references the following regulations:
18 AAC 50.045: Prohibitions.
[[Page 41503]]
18 AAC 50.302: Construction Permits.
18 AAC 50.306: Prevention of Significant Deterioration
Permits.
18 AAC 50.345: Construction and Operating Permits:
Standard Permit Conditions.
18 AAC 50.508: Minor Permits Requested by the Owner or
Operator.
18 AAC 50.540: Minor Permit: Application.
18 AAC 50.542: Minor Permit Review and Issuance.
18 AAC 50.542(c): Screening Ambient Air Quality Analysis.
The submission states that a violation of the prohibitions in the
regulations above, or any permit condition, can result in civil actions
(AS 46.03.760 ``Civil action for pollution; damages''), administrative
penalties (AS 46.03.761 ``Administrative penalties''), or criminal
penalties (AS 46.03.790 ``Criminal penalties''). In addition, Alaska
refers to regulations pertaining to compliance orders and enforcement
proceedings found at 18 AAC Chapter 95 ``Administrative Enforcement.''
Finally, AS 46.03.820 ``Emergency Powers'' provides ADEC with emergency
order authority where there is an imminent and present danger to health
or welfare.
EPA analysis: With respect to the requirement to have a program
providing for enforcement of all SIP measures, we are proposing to find
that Alaska statute provides ADEC with authority to enforce air quality
regulations, permits, and orders promulgated pursuant to AS 46.03 and
AS 46.14. ADEC staffs and maintains an enforcement program to ensure
compliance with SIP requirements. ADEC has emergency order authority
when there is an imminent or present danger to health or welfare or
potential for irreversible or irreparable damage to natural resources
or the environment. Enforcement cases may be referred to the State
Department of Law. Therefore, we are proposing to approve the Alaska
SIP as meeting the requirements of CAA section 110(a)(2)(C) related to
enforcement for the 1997 PM2.5, 2006 PM2.5, and
2008 ozone NAAQS.
To generally meet the requirements of CAA section 110(a)(2)(C) with
respect to the regulation of construction of new or modified stationary
sources, the State is required to have PSD, nonattainment NSR, and
minor NSR permitting programs adequate to implement the 1997
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS. As
explained above, we are not evaluating nonattainment related
provisions, such as the nonattainment NSR program required by part D,
title I of the CAA.
The EPA originally approved Alaska's PSD/NSR program on February
16, 1995 (60 FR 8943), and we most recently proposed revisions on May
5, 2014 (79 FR 25533). These revisions, among other things, update the
Alaska PSD program for fine particulate matter implementation in
attainment and unclassifiable areas. Previously on February 9, 2011, we
approved a revision to the Alaska SIP to provide authority to implement
the PSD permitting program with respect to greenhouse gas emissions (76
FR 7116). Alaska's PSD program generally incorporates by reference the
Federal PSD program requirements at 40 CFR 52.21. In some cases, ADEC
adopted provisions of 40 CFR 51.166 rather than the comparable
provisions of 40 CFR 52.21 because 40 CFR 51.166 was a better fit for a
SIP-approved PSD program.
Upon finalization of the May 5, 2014, proposed approval of
revisions to the Alaska PSD program, the State's Federally-approved SIP
will incorporate by reference PSD requirements at 40 CFR 52.21 and 40
CFR 51.166 revised as of July 1, 2011. Therefore, we are proposing to
approve the Alaska SIP as meeting the requirements of CAA section
110(a)(2)(C) with respect to PSD for the 1997 PM2.5, 2006
PM2.5, and 2008 ozone NAAQS. Final action is contingent upon
the EPA first taking final action on the May 5, 2014, proposed approval
of revisions to the Alaska SIP to reflect changes to the NAAQS and
Federal PSD permitting requirements.
We note that on January 4, 2013, the U.S. Court of Appeals in the
District of Columbia, in Natural Resources Defense Council v. EPA, 706
F.3d 428 (D.C. Cir.), issued a judgment that remanded two of the EPA's
rules implementing the 1997 PM2.5 NAAQS, including the
``Implementation of New Source Review (NSR) Program for Particulate
Matter Less Than 2.5 Micrometers (PM2.5),'' (73 FR 28321,
May 16, 2008) (2008 PM2.5 NSR Implementation Rule). The
court ordered the EPA to ``repromulgate these rules pursuant to Subpart
4 consistent with this opinion.'' Id. at 437. Subpart 4 of part D,
title I of the CAA establishes additional provisions for particulate
matter nonattainment areas. The 2008 PM2.5 NSR
Implementation Rule addressed by the court's decision promulgated NSR
requirements for implementation of PM2.5 in both
nonattainment areas (nonattainment NSR) and attainment/unclassifiable
areas (PSD). As the requirements of subpart 4 only pertain to
nonattainment areas, the EPA does not consider the portions of the 2008
PM2.5 NSR Implementation Rule that address requirements for
PM2.5 attainment and unclassifiable areas to be affected by
the court's opinion. Moreover, the EPA does not anticipate the need to
revise any PSD requirements promulgated in the 2008 PM2.5
NSR Implementation Rule in order to comply with the court's decision.
Accordingly, the EPA's proposed approval of elements 110(a)(2)(C),
(D)(i)(II), and (J), with respect to the PSD requirements, does not
conflict with the court's opinion. The EPA interprets the CAA section
110(a)(1) and (2) infrastructure submissions due three years after
adoption or revision of a NAAQS to exclude nonattainment area
requirements, including requirements associated with a nonattainment
NSR program. Instead, these elements are typically referred to as
nonattainment SIP or attainment plan elements, which are due by the
dates statutorily prescribed under subparts 2 through 5 under part D,
extending as far as ten years following designations for some elements.
In addition, on January 22, 2013, the U.S. Court of Appeals for the
District of Columbia, in Sierra Club v. EPA, 703 F.3d 458 (D.C. Cir.
2013), issued a judgment that, inter alia, vacated the provisions
adding the PM2.5 Significant Monitoring Concentration (SMC)
to the Federal regulations, at 40 CFR 51.166(i)(5)(i)(c) and
52.21(i)(5)(i)(c), that were promulgated as part of the ``Prevention of
Significant Deterioration (PSD) for Particulate Matter Less than 2.5
Micrometers (PM2.5)--Increments, Significant Impact Levels
(SILs) and Significant Monitoring Concentration (SMC); Final Rule,''
(75 FR 64864, October 10, 2010) (2010 PSD PM2.5
Implementation Rule). In its decision, the court held that the EPA did
not have the authority to use SMCs to exempt permit applicants from the
statutory requirement in section 165(e)(2) of the CAA that ambient
monitoring data for PM2.5 be included in all PSD permit
applications. Thus, although the PM2.5 SMC was not a
required element of a state's PSD program, were a state PSD program
that contains such a provision to use that provision to issue new
permits without requiring ambient PM2.5 monitoring data,
such application of the vacated SMC would be inconsistent with the
court's opinion and the requirements of section 165(e)(2) of the CAA.
This decision also, at the EPA's request, vacated and remanded to
the EPA for further consideration the portions of the 2010 PSD
PM2.5 Implementation Rule that revised 40 CFR 51.166 and 40
CFR 52.21 related to
[[Page 41504]]
Significant Impact Levels (SILs) for PM2.5. The EPA
requested this vacatur and remand of two of the three provisions in the
EPA regulations that contain SILs for PM2.5, because the
wording of these two SIL provisions (40 CFR 51.166(k)(2) and 40 CFR
52.21(k)(2)) is inconsistent with the explanation of when and how SILs
should be used by permitting authorities that we provided in the
preamble to the Federal Register publication when we promulgated these
provisions. The third SIL provision (40 CFR 51.165(b)(2)) was not
vacated and remains in effect. The court's decision does not affect the
PSD increments for PM2.5 promulgated as part of the 2010 PSD
PM2.5 Implementation Rule.
We note that the EPA recently amended its regulations to remove the
vacated PM2.5 SILs and SMC provisions from PSD regulations
on December 9, 2013 (78 FR 73698). In addition, the EPA will initiate a
separate rulemaking in the future regarding the PM2.5 SILs
that will address the court's remand. In the meantime, we are advising
states to begin preparations to remove the vacated provisions from
state PSD regulations.
Because of the vacatur of the EPA regulations as they relate to the
PM2.5 SILs and SMC, and the EPA's December 9, 2013,
rulemaking action, Alaska withdrew the rule revisions that would have
implemented these vacated provisions. Please see our proposed action on
May 5, 2014 (79 FR 25533). Therefore, in this action we are proposing
to approve the Alaska SIP as meeting the requirements of CAA section
110(a)(2)(C), (D)(i)(II) and (J) as those elements relate to a
comprehensive PSD program.
Turning to the minor NSR requirement, we have determined that the
Alaska minor NSR program regulates minor sources for purposes of the
1997 PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
Based on the foregoing, we are proposing to approve the Alaska SIP as
meeting the requirements of CAA section 110(a)(2)(C) for the 1997
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS. Final
action is contingent upon the EPA first taking final action on the May
5, 2014, proposed approval of revisions to the Alaska SIP to reflect
changes to the NAAQS and Federal PSD permitting requirements.
110(a)(2)(D): Interstate Transport
CAA section 110(a)(2)(D)(i) requires state SIPs to include
provisions prohibiting any source or other type of emissions activity
in one state from contributing significantly to nonattainment, or
interfering with maintenance of the NAAQS in another state (CAA section
110(a)(2)(D)(i)(I)). Further, this section requires state SIPs to
include provisions prohibiting any source or other type of emissions
activity in one state from interfering with measures required to
prevent significant deterioration (PSD) of air quality, or from
interfering with measures required to protect visibility (i.e. measures
to address regional haze) in any state (CAA section
110(a)(2)(D)(i)(II)). As noted above, this action also does not address
the requirements of CAA section 110(a)(2)(D)(i) for the 1997
PM2.5 NAAQS which we previously approved on October 15, 2008
(73 FR 60955). In addition, this action does not address the
requirements of 110(a)(2)(D)(i)(I) for the 2006 PM2.5 and
2008 ozone NAAQS, which we are addressing in a separate action
(proposed April 28, 2014, 79 FR 23303). In this action, we are
proposing to approve the Alaska SIP as meeting the requirements of CAA
section 110(a)(2)(D)(i)(II) for the 2006 PM2.5 and 2008
ozone NAAQS, and CAA section 110(a)(2)(D)(ii) for the 1997
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
State submission: On March 29, 2011, Alaska submitted the ``Alaska
Interstate Transport of Pollution SIP'' to address interstate transport
requirements for multiple NAAQS, including the 2006 PM2.5
and 2008 ozone NAAQS. For purposes of CAA section 110(a)(2)(D)(i)(II),
the submission referenced the State's SIP-approved PSD program and the
State's Regional Haze Plan. As a result of the State's analysis and
consultation, Alaska concluded that emissions of fine particulate
matter and its precursors and ozone precursors from sources in Alaska
do not interfere with other states' efforts to prevent significant air
quality degradation and protect visibility.
EPA analysis: As noted above, this action also does not address the
requirements of CAA section 110(a)(2)(D)(i) for the 1997
PM2.5 NAAQS which we previously approved on October 15, 2008
(73 FR 60955). In addition, this action does not address the
requirements of 110(a)(2)(D)(i)(I) for the 2006 PM2.5 and
2008 ozone NAAQS, which we are addressing in a separate action
(proposed April 28, 2014, 79 FR 23303). In this action, we are
proposing to approve the Alaska SIP as meeting the requirements of CAA
section 110(a)(2)(D)(i)(II) for the 2006 PM2.5 and 2008
ozone NAAQS, and CAA section 110(a)(2)(D)(ii) for the 1997
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
CAA section 110(a)(2)(D)(i)(II) requires state SIPs to contain
adequate provisions prohibiting emissions which will interfere with any
other state's required measures to prevent significant deterioration
(PSD) of its air quality (prong 3), and adequate provisions prohibiting
emissions which will interfere with any other state's required measures
to protect visibility (prong 4).
To address whether emissions from sources in Alaska interfere with
any other state's required measures to prevent significant
deterioration of air quality, the March 29, 2011, and July 9, 2012,
submissions referenced the State's Federally-approved PSD program. The
EPA originally approved Alaska's PSD program on February 16, 1995 (60
FR 8943), and most recently proposed approval of revisions on May 5,
2014 (79 FR 25533). Upon finalization of our May 5, 2014, proposed
approval of revisions to the Alaska PSD program, the Alaska SIP will
incorporate by reference Federal PSD requirements as of July 1, 2011.
We believe that our proposed approval of element 110(a)(2)(D)(i)(II) is
not affected by recent court vacaturs of EPA PSD implementing
regulations. Please see our discussion at section 110(a)(2)(C).
Therefore, we are proposing to approve the Alaska SIP as meeting the
requirements of CAA section 110(a)(2)(D)(i)(II) with respect to PSD
(prong 3) for the 2006 PM2.5 and 2008 ozone NAAQS. Final
action is contingent upon the EPA first taking final action on the May
5, 2014, proposed approval of revisions to the Alaska SIP to reflect
changes to the NAAQS and Federal PSD permitting requirements.
To address whether emissions from sources in Alaska interfere with
any other state's required measures to protect visibility, Alaska's
submissions reference the Alaska Regional Haze SIP, which was submitted
to the EPA on March 29, 2011. The Alaska Regional Haze SIP addresses
visibility impacts across states within the region. On February 14,
2013, the EPA approved the Alaska Regional Haze SIP, including the
requirements for best available retrofit technology (78 FR 10546).
The EPA believes, as noted in the September 13, 2013,
infrastructure guidance, that with respect to the CAA section
110(a)(2)(D)(i)(II) visibility sub-element, where a state's regional
haze SIP has been approved as meeting all current obligations, a state
may rely upon those provisions in support of its demonstration that it
satisfies the requirements of CAA section 110(a)(2)(D)(i)(II) as it
relates to visibility. Because the Alaska Regional Haze SIP was found
to meet Federal requirements, we are proposing to approve the Alaska
SIP as meeting the
[[Page 41505]]
requirements of CAA section 110(a)(2)(D)(i)(II) as it applies to
visibility for the 2006 PM2.5 and 2008 ozone NAAQS (prong
4).
Interstate and International Transport Provisions
CAA section 110(a)(2)(D)(ii) requires SIPs to include provisions
insuring compliance with the applicable requirements of CAA sections
126 and 115 (relating to interstate and international pollution
abatement). Specifically, CAA section 126(a) requires new or modified
major sources to notify neighboring states of potential impacts from
the source.
State submission: The July 9, 2012, submission references the
State's Federally-approved PSD program. The submission also references
SIP revisions submitted by ADEC for purposes of implementing
PM2.5 requirements in the Alaska PSD program.
EPA analysis: The EPA originally approved Alaska's PSD program on
February 16, 1995 (60 FR 8943), and most recently proposed approval of
revisions on May 5, 2014 (79 FR 25533). In general, ADEC incorporates
by reference the Federal PSD rules at 40 CFR 52.21. In some cases, ADEC
adopted provisions of 40 CFR 51.166, rather than the comparable
provisions of 40 CFR 52.21, because 40 CFR 51.166 was a better fit for
a SIP-approved PSD program.
At 18 AAC 50.306(b), Alaska's Federally-approved SIP incorporates
by reference the general provisions of 40 CFR 51.166(q)(2) to describe
the public participation procedures for PSD permits, including
requiring notice to states whose lands may be affected by the emissions
of sources subject to PSD. As a result, Alaska's PSD regulations
provide for notice consistent with the requirements of the EPA PSD
program. Alaska also has no pending obligations under section 115 or
126(b) of the CAA. Therefore, we are proposing to approve the Alaska
SIP as meeting the requirements of CAA section 110(a)(2)(D)(ii) for the
1997 PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
Final action is contingent upon the EPA first taking final action on
the May 5, 2014, proposed approval of revisions to the Alaska SIP to
reflect changes to the NAAQS and Federal PSD permitting requirements.
110(a)(2)(E): Adequate Resources
CAA section 110(a)(2)(E) requires each state to provide (i)
necessary assurances that the state will have adequate personnel,
funding, and authority under state law to carry out the SIP (and is not
prohibited by any provision of Federal or state law from carrying out
the SIP or portion thereof), (ii) requirements that the state comply
with the requirements respecting state boards under CAA section 128 and
(iii) necessary assurances that, where the state has relied on a local
or regional government, agency, or instrumentality for the
implementation of any SIP provision, the state has responsibility for
ensuring adequate implementation of such SIP provision.
State submission: The July 9, 2012, submission states that ADEC
maintains adequate personnel, funding, and authority to implement the
SIP. The submission refers to AS 46.14.030 ``State Air Quality Control
Plan'' which provides ADEC statutory authority to act for the state and
adopt regulations necessary to implement the State air plan. The
submission also references 18 AAC 50.030 ``State Air Quality Control
Plan'' which provides regulatory authority to implement and enforce the
SIP.
With respect to CAA section 110(a)(2)(E)(ii), the submission states
that Alaska's regulations on ``conflict of interest'' are found in
Title 2-Administration, Chapter 50 Alaska Public Offices Commission:
Conflict of Interest, Campaign Disclosure, Legislative Financial
Disclosure, and Regulations of Lobbying (2 AAC 50.010--2 AAC 50.920).
Regulations concerning financial disclosure are found in Title 2,
Chapter 50, Article 1--Public Official Financial Disclosure. There are
no state air quality boards in Alaska, however, the ADEC commissioner,
as an appointed official and the head of an executive agency, is
required to file a financial disclosure statement annually by March
15th of each year with the Alaska Public Offices Commission (APOC).
These disclosures are publicly available through APOC's Anchorage
office. Alaska's Public Officials Financial Disclosure Forms and links
to Alaska's financial disclosure regulations can be found at the APOC
Web site: http://doe.alaska.gov/apoc/home.html. Additional links to
Alaska's ethics statutes and regulations are found at http://law.alaska.gov/doclibrary/ethics.html.
With respect to CAA section 110(a)(2)(E)(iii) and assurances that
the state has responsibility for ensuring adequate implementation of
the plan where the state has relied on local or regional government
agencies, the submission states that ADEC insures local programs have
adequate resources and documents this in the appropriate SIP section.
Statutory authority for establishing local air pollution control
programs is found at AS 46.14.400 ``Local air quality control
programs.''
The submission also states that ADEC provides technical assistance
and regulatory oversight to the Municipality of Anchorage (MOA),
Fairbanks North Star Borough (FNSB) and other local jurisdictions to
ensure that the State Air Quality Control Plan and SIP objectives are
satisfactorily carried out. ADEC has a Memorandum of Understanding with
the MOA and FNSB that allows them to operate air quality control
programs in their respective jurisdictions. The South Central Clean Air
Authority has been established to aid the MOA and the Matanuska-Susitna
Borough in pursuing joint efforts to control emissions and improve air
quality in the air-shed common to the two jurisdictions. In addition,
ADEC indicates the department works closely with locals on
nonattainment plans.
EPA analysis: We are proposing to find that the Alaska SIP meets
the adequate personnel, funding and authority requirements of CAA
section 110(a)(2)(E)(i). Alaska receives sections 103 and 105 grant
funds from the EPA and provides state matching funds necessary to carry
out SIP requirements. For purposes of CAA section 110(a)(2)(E)(ii), we
previously approved Alaska's conflict of interest disclosure and ethics
regulations as meeting the requirements of CAA section 128 on October
22, 2012 (77 FR 64427). In addition, we are proposing to find that the
State has provided necessary assurances that, where the State has
relied on a local or regional government, agency, or instrumentality
for the implementation of any SIP provision, the State has
responsibility for ensuring adequate implementation of the SIP with
respect to the 1997 PM2.5, 2006 PM2.5, and 2008
ozone NAAQS as required by CAA section 110(a)(2)(E)(iii). Therefore we
are proposing to approve the Alaska SIP as meeting the requirements of
CAA section 110(a)(2)(E) for the 1997 PM2.5, 2006
PM2.5, and 2008 ozone NAAQS.
110(a)(2)(F): Stationary Source Monitoring System
CAA section 110(a)(2)(F) requires (i) the installation,
maintenance, and replacement of equipment, and the implementation of
other necessary steps, by owners or operators of stationary sources to
monitor emissions from such sources, (ii) periodic reports on the
nature and amounts of emissions and emissions-related data from such
sources, and (iii) correlation of such reports by the state agency with
any emission limitations or standards established pursuant to the CAA,
which
[[Page 41506]]
reports shall be available at reasonable times for public inspection.
State submission: The July 9, 2012, submission states that ADEC has
general statutory authority to regulate stationary sources via an air
permitting program which includes permit reporting requirements,
completeness determinations, administrative actions, and stack source
monitoring requirements. The submission states ADEC has regulatory
authority to determine compliance with these statutes via information
requests and ambient air quality investigations. Monitoring protocols
and test methods for stationary sources have been adopted by reference
including the Federal reference and interpretation methods for
particulate matter.
The submission references the State's Federally-approved PSD
program originally approved on February 16, 1995 (60 FR 8943) and more
recently approved on August 14, 2007 (72 FR 45378). Ambient air quality
and meteorological data that are collected for PSD purposes by
stationary sources are reported to ADEC on a quarterly and annual
basis.
The submission refers to the following statutory and regulatory
provisions which provide authority and requirements for source
emissions monitoring, reporting, and correlation with emission limits
or standards:
AS 46.14.140: Emission control permit program regulations.
AS 46.14.180: Monitoring.
18 AAC 50.035: Documents, Procedures, and Methods Adopted
by Reference.
18 AAC 50.040: Federal Standards Adopted by Reference.
18 AAC 50.200: Information Requests.
18 AAC 50.201: Ambient Air Quality Investigation.
18 AAC 50.220: Enforceable test methods.
18 AAC 50.306: Prevention of Significant Deterioration
Permits.
18 AAC 50.345: Construction and Operating Permits:
Standard Permit Conditions.
EPA analysis: The Alaska SIP establishes compliance requirements
for sources subject to major and minor source permitting to monitor
emissions, keep and report records, and collect ambient air monitoring
data. 18 AAC 50.200 ``Information Requests'' provides ADEC authority to
issue information requests to an owner, operator, or permittee for
purposes of ascertaining compliance. 18 AAC 50.201 ``Ambient Air
Quality Investigations'' provides authority to require an owner,
operator, or permittee to evaluate the effect emissions from the source
have on ambient air quality. In addition, 18 AAC 50.306 ``Prevention of
Significant Deterioration Permits'' and 18 AAC 50.544 ``Minor Permits:
Content'' provide for establishing permit conditions to require the
permittee to install, use and maintain monitoring equipment, sample
emissions, provide source test reports, monitoring data, emissions
data, and information from analysis, keep records and make periodic
reports on process operations and emissions. This information is made
available to the public through public processes outlined in these SIP-
approved rules.
Additionally, the State is required to submit emissions data to the
EPA for purposes of the National Emissions Inventory (NEI). The NEI is
the EPA's central repository for air emissions data. The EPA published
the Air Emissions Reporting Rule (AERR) on December 5, 2008, which
modified the requirements for collecting and reporting air emissions
data (73 FR 76539). The AERR shortened the time states had to report
emissions data from 17 to 12 months, giving states one calendar year to
submit emissions data. All states are required to submit a
comprehensive emissions inventory every three years and report
emissions for certain larger sources annually through the EPA's online
Emissions Inventory System. States report emissions data for the six
criteria pollutants and their associated precursors--nitrogen oxides,
sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter, and
volatile organic compounds. Many states also voluntarily report
emissions of hazardous air pollutants. The EPA compiles the emissions
data, supplementing it where necessary, and releases it to the general
public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html.
Based on the above analysis, we are proposing to approve the Alaska
SIP as meeting the requirements of CAA section 110(a)(2)(F) for the
1997 PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
110(a)(2)(G): Emergency Episodes
CAA section 110(a)(2)(G) requires states to provide for authority
to address activities causing imminent and substantial endangerment to
public health, including contingency plans to implement the emergency
episode provisions in their SIPs.
State submission: The July 9, 2012, submission cites AS 46.03.820
``Emergency powers'' which provides ADEC with emergency order authority
where there is an imminent or present danger to the health or welfare
of the people of the state or would result in or be likely to result in
irreversible or irreparable damage to the natural resources or
environment. The submission also refers to18 AAC 50.245 ``Air Episodes
and Advisories'' which authorizes ADEC to declare an air alert, air
warning, or air advisory to notify the public and prescribe and
publicize curtailment action. The submission states that ADEC is
working to update this rule for purposes of PM2.5.
The three major municipalities in Alaska (Anchorage, Fairbanks, and
Juneau) also have ordinances, codes, or regulations that enable them to
declare emergencies in the case of poor air quality due to forest
fires, volcanoes, wood smoke or other air quality problem. ADEC is
working with the FNSB to develop an Emergency Episode Contingency Plan
for PM2.5 for the FNSB nonattainment area as outlined in 40
CFR subpart H--Prevention of Air Pollution Emergency Episodes, and in
Appendix L to subpart 51 ``Example Regulations for Prevention of Air
Pollution Emergency Episodes.'' ADEC personnel remain in close contact
with each municipality when an air emergency is declared, assisting
with air monitoring and analysis, and implementing safety and control
measures, as needed.
EPA analysis: Section 303 of the CAA provides authority to the EPA
Administrator to restrain any source from causing or contributing to
emissions which present an ``imminent and substantial endangerment to
public health or welfare, or the environment.'' The EPA finds that AS
46.03.820 ``Emergency Powers'' provides emergency order authority
comparable to CAA Section 303. We also find that Alaska's emergency
episode rule at 18 AAC 50.245 ``Air Episodes and Advisories,'' most
recently approved by the EPA on August 14, 2007 (72 FR 45378), is
consistent with the requirements of 40 CFR part 51 subpart H
(prevention of air pollution emergency episodes, sections 51.150
through 51.153) for purposes of the 2008 ozone NAAQS. Because Alaska's
SIP revision for PM2.5 emergency episode planning is in
development and has not yet been submitted to the EPA, we are deferring
action on this element for purposes of the 1997 and 2006
PM2.5 NAAQS. We will address the requirements in a separate
action.
Based on the foregoing, we are proposing to approve the Alaska SIP
as meeting the requirements of CAA section 110(a)(2)(G) for the 2008
ozone NAAQS.
[[Page 41507]]
110(a)(2)(H): Future SIP Revisions
CAA section 110(a)(2)(H) requires that SIPs provide for revision of
such plan (i) from time to time as may be necessary to take account of
revisions of such national primary or secondary ambient air quality
standard or the availability of improved or more expeditious methods of
attaining such standard, and (ii), except as provided in paragraph
110(a)(3)(C), whenever the Administrator finds on the basis of
information available to the Administrator that the SIP is
substantially inadequate to attain the NAAQS which it implements or to
otherwise comply with any additional requirements under the CAA.
State submission: The July 9, 2012, submission refers to statutory
authority to adopt regulations in order to implement the CAA and the
state air quality control program at AS 46.03.020(10)(A) ``Powers of
the Department'' and AS 46.14.010(a) ``Emission Control Regulations.''
The submission also refers to regulatory authority to implement
provisions of the CAA at 18 AAC 50.010 ``Ambient Air Quality
Standards.'' The submission affirms that ADEC regularly update the
Alaska SIP as new NAAQS are promulgated by the EPA.
EPA analysis: As cited above, the Alaska SIP provides for
revisions, and in practice, Alaska regularly submits SIP revisions to
the EPA to take into account revisions to the NAAQS and other Federal
regulatory changes. On May 5, 2014, the EPA proposed to approve
numerous revisions to the Alaska SIP, including updates to Alaska's
rules to reflect recent Federal changes to the NAAQS and permitting
requirements (79 FR 25533). We previously approved revisions to the
Alaska SIP on August 9, 2013 (78 FR 48611), May 9, 2013 (78 FR 27071)
and January 7, 2013 (78 FR 900). We are proposing to approve the Alaska
SIP as meeting the requirements of section 110(a)(2)(H) for the 1997
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
110(a)(2)(I): Nonattainment Area Plan Revision Under Part D
EPA analysis: There are two elements identified in CAA section
110(a)(2) not governed by the three-year submission deadline of CAA
section 110(a)(1), because SIPs incorporating necessary local
nonattainment area controls are not due within three years after
promulgation of a new or revised NAAQS, but are rather due at the time
of the nonattainment area plan requirements pursuant to section 172 and
the various pollutant specific subparts 2[n x dash]5 of
part D. These requirements are: (i) Submissions required by CAA section
110(a)(2)(C) to the extent that subsection refers to a permit program
as required in part D, title I of the CAA, and (ii) submissions
required by CAA section 110(a)(2)(I) which pertain to the nonattainment
planning requirements of part D, title I of the CAA. As a result, this
action does not address infrastructure elements related to CAA section
110(a)(2)(C) with respect to nonattainment NSR or CAA section
110(a)(2)(I).
110(a)(2)(J): Consultation With Government Officials
CAA section 110(a)(2)(J) requires states to provide a process for
consultation with local governments and Federal Land Managers carrying
out NAAQS implementation requirements pursuant to Section 121. CAA
section 110(a)(2)(J) further requires states to notify the public if
NAAQS are exceeded in an area and to enhance public awareness of
measures that can be taken to prevent exceedances. Lastly, CAA section
110(a)(2)(J) requires states to meet applicable requirements of part C,
title I of the CAA related to prevention of significant deterioration
and visibility protection.
State submission: The July 9, 2012, submission refers to statutory
authority to consult and cooperate with officials of local governments,
state and Federal agencies, and non-profit groups found at AS
46.030.020 ``Powers of the department'' paragraphs (3) and (8). The
submission states that municipalities and local air quality districts
seeking approval for a local air quality control program shall enter
into a cooperative agreement with ADEC according to AS 46.14.400
``Local air quality control programs'' paragraph (d). ADEC can adopt
new CAA regulations only after a public hearing as per AS 46.14.010
``Emission control regulations'' paragraph (a). In addition, the
submission states that public notice and public hearing regulations for
SIP submission and air quality discharge permits are found at 18 AAC
15.050 and 18 AAC 15.060. Finally, the submission also references the
Federally-approved Alaska PSD program originally approved on February
16, 1995 (60 FR 8943), and Alaska's Regional Haze SIP submitted to the
EPA on March 29, 2011.
EPA analysis: The EPA finds that the Alaska SIP contains provisions
for consulting with government officials as specified in CAA section
121, including the Alaska rules for major source permitting. Alaska's
PSD program provides opportunity and procedures for public comment and
notice to appropriate Federal, state and local agencies. We most
recently proposed approval of revisions to the Alaska PSD program on
May 5, 2014 (79 FR 25533). In addition, the EPA approved the Alaska
rules that define transportation conformity consultation on December
29, 1999 (64 FR 72940). Finally, on February 14, 2013, we approved the
Alaska Regional Haze SIP (78 FR 10546).
ADEC routinely coordinates with local governments, states, Federal
land managers and other stakeholders on air quality issues including
transportation conformity and regional haze, and provides notice to
appropriate agencies related to permitting actions. Alaska regularly
participates in regional planning processes including the Western
Regional Air Partnership which is a voluntary partnership of states,
tribes, Federal land managers, local air agencies and the EPA whose
purpose is to understand current and evolving regional air quality
issues in the West. Therefore, we are proposing to approve the Alaska
SIP as meeting the requirements of CAA section 110(a)(2)(J) for
consultation with government officials for the 1997 PM2.5,
2006 PM2.5, and 2008 ozone NAAQS.
Section 110(a)(2)(J) also requires the public be notified if NAAQS
are exceeded in an area and to enhance public awareness of measures
that can be taken to prevent exceedances. ADEC is a partner in the
EPA's AIRNOW and Enviroflash Air Quality Alert programs, which provide
air quality information to the public for five major air pollutants
regulated by the CAA: ground-level ozone, particulate matter, carbon
monoxide, sulfur dioxide, and nitrogen dioxide. Alaska also provides
real-time air monitoring information to the public on the ADEC air
quality Web site at http://dec.alaska.gov/applications/air/envistaweb/,
in addition to air advisory information. During the summer months, the
Fairbanks North Star Borough prepares a weekly Air Quality forecast for
the Fairbanks area. The forecast is on their Web site (http://co.fairbanks.ak.us/airquality/).
We are therefore proposing to approve the Alaska SIP as meeting the
requirements of CAA section 110(a)(2)(J) for public notification for
the 1997 PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
Turning to the requirement in CAA section 110(a)(2)(J) that the SIP
meet the applicable requirements of part C of title I of the CAA, we
have evaluated this requirement in the context of CAA section
110(a)(2)(C) with respect to permitting. The EPA originally approved
Alaska's PSD program on
[[Page 41508]]
February 16, 1995 (60 FR 8943), and most recently proposed to approve
revisions on May 5, 2014 (79 FR 25533). Alaska's PSD program generally
incorporates by reference the Federal PSD program requirements at 40
CFR 52.21. In some cases, ADEC adopted provisions of 40 CFR 51.166,
rather than the comparable provisions of 40 CFR 52.21, because 40 CFR
51.166 was a better fit for a SIP-approved PSD program. Upon
finalization of our May 5, 2014 proposed approval, the State's
Federally-approved SIP will incorporate by reference PSD requirements
at 40 CFR 52.21 and 40 CFR 51.166 revised as of July 1, 2011. We are
therefore proposing to approve the Alaska SIP as meeting the
requirements of CAA section 110(a)(2)(J) for PSD for the 1997
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS. Final
action is contingent upon the EPA first taking final action on the May
5, 2014, proposed approval of revisions to the Alaska SIP to reflect
changes to the NAAQS and Federal PSD permitting requirements. We note
that we believe that our proposed approval of element 110(a)(2)(J) with
respect to PSD is not affected by recent court vacaturs of the EPA's
PSD implementing regulations. Please see our discussion above regarding
section 110(a)(2)(C).
With respect to the applicable requirements for visibility
protection, the EPA recognizes that states are subject to visibility
and regional haze program requirements under part C of the CAA. In the
event of the establishment of a new NAAQS, however, the visibility and
regional haze program requirements under part C do not change. Thus we
find that there is no new applicable requirement related to visibility
triggered under CAA section 110(a)(2)(J) when a new NAAQS becomes
effective.
Based on the analysis above, we are proposing to approve the Alaska
SIP as meeting the requirements of CAA section 110(a)(2)(J) for the
1997 PM2.5, 2006 p.m.2.5, and 2008 ozone NAAQS.
Final action is contingent upon the EPA first taking final action on
the May 5, 2014, proposed approval of revisions to the Alaska SIP to
reflect changes to the NAAQS and Federal PSD permitting requirements.
110(a)(2)(K): Air Quality and Modeling/Data
CAA section 110(a)(2)(K) requires that SIPs provide for (i) the
performance of such air quality modeling as the Administrator may
prescribe for the purpose of predicting the effect on ambient air
quality of any emissions of any air pollutant for which the
Administrator has established a national ambient air quality standard,
and (ii) the submission, upon request, of data related to such air
quality modeling to the Administrator.
State submission: The July 9, 2012, submission states that air
quality modeling is regulated under 18 AAC 50.215(b) ``Ambient Air
Quality Analysis Methods.'' Estimates of ambient concentrations and
visibility impairment must be based on applicable air quality models,
databases, and other requirements specified in the ``EPA's Guideline on
Air Quality Models'' which is adopted by reference in 18 AAC 50.040
``Federal Standards Adopted by Reference.'' Baseline dates and maximum
allowable increases are found in Table 2 and Table 3, respectively, at
18 AAC 50.020 ``Baseline Dates and Maximum Allowable Increases.''
EPA analysis: On May 5, 2014, we proposed to approve revisions to
18 AAC 50.215 ``Ambient Air Quality Analysis Methods'' and 18 AAC
50.040(f) ``Federal Standards Adopted by Reference'' (79 FR 25533).
After finalizing our May 5, 2014, action, 18 AAC 50.040(f) ``Federal
Standards Adopted by Reference'' will incorporate by reference the EPA
regulations at 40 CFR Part 51, Appendix W (Guidelines on Air Quality
Models) revised as of July 1, 2011. In addition, as an example of
Alaska's modeling capacity, the State submitted the Fairbanks Carbon
Monoxide Maintenance Plan to the EPA on June 21, 2004, supported by air
quality modeling. The maintenance plan and supporting modeling was
approved by the EPA as a SIP revision on July 27, 2004 (69 FR 44605).
Therefore, we are proposing to approve the Alaska SIP as meeting the
requirements of CAA Section 110(a)(2)(K) for the 1997 PM2.5,
2006 PM2.5, and 2008 ozone NAAQS.
110(a)(2)(L): Permitting Fees
CAA section 110(a)(2)(L) requires SIPs to require each major
stationary source to pay permitting fees to cover the cost of
reviewing, approving, implementing and enforcing a permit.
State submission: The July 9, 2012, submission states that ADEC's
statutory authority to assess and collect permit fees is established in
AS 46.14.240 ``Permit Administration Fees'' and AS 46.14.250 ``Emission
Fees.'' The permit fees for title V stationary sources are assessed and
collected by the Air Permits Program according to 18 AAC 50, Article 4.
ADEC is required to evaluate emission fee rates at least every four
years and provide a written evaluation of the findings (AS
46.14.250(g); 18 AAC 50.410). The submission states that ADEC's most
recent emission fee evaluation report was completed in October 2010 and
that the next emission fee review is scheduled for 2014.
EPA analysis: The EPA fully approved Alaska's title V program on
July 26, 2001 (66 FR 38940) with an effective data of September 24,
2001. While Alaska's operating permit program is not formally approved
into the SIP, it is a legal mechanism the State can use to ensure that
ADEC has sufficient resources to support the air program, consistent
with the requirements of the SIP. Before the EPA can grant full
approval, a state must demonstrate the ability to collect adequate
fees. The Alaska title V program included a demonstration the state
will collect a fee from title V sources above the presumptive minimum
in accordance with 40 CFR 70.9(b)(2)(i). In addition, Alaska
regulations at 18 AAC 50.306(d)(2) and 18 AAC 50.311(d)(2) require fees
for purposes of major NSR permitting as specified in 18 AAC 50.400
through 18 AAC 50.499. Therefore, we are proposing to conclude that
Alaska has satisfied the requirements of CAA section 110(a)(2)(L) for
the 1997 PM2.5, 2006 PM2.5, and 2008 ozone NAAQS.
110(a)(2)(M): Consultation/Participation by Affected Local Entities
CAA section 110(a)(2)(M) requires states to provide for
consultation and participation in SIP development by local political
subdivisions affected by the SIP.
State submission: The July 9, 2012, submission states that ADEC has
authority to consult and cooperate with officials and representatives
of any organization in the state; and persons, organization, and
groups, public and private using, served by, interested in, or
concerned with the environment of the state. Alaska refers to AS
46.030.020 ``Powers of the department'' paragraphs (3) and (8) which
provides authority to ADEC to consult and cooperate with affected state
and local entities. In addition, AS 46.14.400 ``Local air quality
control programs'' paragraph (d) provides authority for local air
quality control programs and requires cooperative agreements between
ADEC and local air quality control programs that specify the respective
duties, funding, enforcement responsibilities, and procedures.
EPA analysis: The EPA finds that the Alaska provisions cited above
provide for local and regional authorities to participate and consult
in the SIP development process. Therefore we are proposing to approve
the Alaska SIP as meeting the requirements of CAA
[[Page 41509]]
section 110(a)(2)(M) for the 1997 PM2.5, 2006
PM2.5, and 2008 ozone NAAQS.
V. Proposed Action
We are proposing to approve the Alaska SIP as meeting the following
CAA section 110(a)(2) infrastructure elements for the 1997
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS: (A),
(B), (C), (D)(ii), (E), (F), (H), (J), (K), (L), and (M). We are also
proposing to approve the Alaska SIP as meeting the requirements of CAA
section 110(a)(2)(D)(i)(II) as it applies to prevention of significant
deterioration and visibility for the 2006 PM2.5 and 2008
ozone NAAQS. In addition, we are proposing to approve the Alaska SIP as
meeting the requirements of CAA section 110(a)(2)(G) for the 2008 ozone
NAAQS. As discussed above, final action is contingent upon the EPA
first taking final action on the May 5, 2014, proposed approval of
revisions to the Alaska SIP to reflect changes to the NAAQS and Federal
PSD permitting requirements (79 FR 25533).
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves the state's law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by the state's law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because it does not involve technical standards; and
Does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
Alaska, and the EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 3, 2014.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.
[FR Doc. 2014-16729 Filed 7-15-14; 8:45 am]
BILLING CODE 6560-50-P