[Federal Register Volume 79, Number 213 (Tuesday, November 4, 2014)]
[Proposed Rules]
[Pages 65366-65369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26181]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2014-0753, FRL-9918-86-Region 10]


Approval and Promulgation of Implementation Plans; Alaska: 
Nonattainment New Source Review

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve revisions to the Alaska State Implementation Plan (SIP) 
submitted by the Commissioner of the Alaska Department of Conservation 
(ADEC) on December 11, 2009, November 29, 2010, December 10, 2012, 
January 28, 2013, July 1, 2014, and October 24, 2014. These revisions 
update the State of Alaska's adoption by reference of the Federal 
preconstruction permitting regulations for large industrial (major 
source) facilities located in designated nonattainment areas, referred 
to as the Nonattainment New Source Review (major NNSR) program. The 
major NNSR program is designed to ensure that major stationary sources 
of air pollution are constructed or modified in a manner that is 
consistent with attainment and maintenance of the National Ambient Air 
Quality Standards (NAAQS).

DATES: Comments must be received on or before December 4, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2014-0753, by any of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Mail: Donna Deneen, EPA Region 10, Office of Air, Waste 
and Toxics (AWT-150), 1200 Sixth Avenue, Suite 900, Seattle, WA 98101
     Email: [email protected].
     Hand Delivery: EPA Region 10 Mailroom, 9th Floor, 1200 
Sixth Avenue, Suite 900, Seattle, WA 98101. Attention: Donna Deneen, 
Office of Air, Waste and Toxics, AWT-150. 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-
2014-0753. 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

[[Page 65367]]

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 electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., 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 form. 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: Donna Deneen at telephone number: 
(206) 553-6706, email address: [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.

Table of Contents

I. Purpose of Proposed Major NNSR Action
II. Background for the Proposed Major NNSR Action
III. Effect of the January 4, 2013 D.C. Circuit Decision Regarding 
PM2.5 Implementation Under Subpart 4
IV. Alaska's Revisions to Major NNSR
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Purpose of Proposed Major NNSR Action

    The EPA is proposing to approve revisions to the Alaska SIP related 
to major NNSR submitted by ADEC on December 11, 2009, November 29, 
2010, December 10, 2012, January 28, 2013, July 1, 2014, and October 
24, 2014.\1\ Alaska's major NNSR program essentially adopts by 
reference the Federal preconstruction permitting regulations for major 
sources in nonattainment areas at 40 CFR 51.165 (Permit Requirements). 
The key changes in Alaska's SIP revisions are the update of the 
adoption by reference citation dates in 18 AAC 50.040(i) to the Federal 
rules in 40 CFR 51.165, and the updated definition of ``regulated NSR 
pollutant'' in 18 AAC 50.040(i)(1)(B) to reflect the current Federal 
definition of ``regulated NSR pollutant'' for nonattainment areas at 40 
CFR 51.165(a)(1)(xxxvii). These and other related revisions addressed 
in this action are discussed below.
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    \1\ This submittal also withdrew a September 24, 2014, submittal 
determined to contain an error.
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    In a previous action relating to the revisions submitted on 
December 11, 2009, November 29, 2010, December 10, 2012, and January 
28, 2013, the EPA deferred action on the portions of those submittals 
relating to major NNSR. (September 19, 2014; 79 FR 56268). In this 
proposal we are taking action on the deferred portions of those 
submittals. In this action we are also addressing the major NNSR 
portion of revisions submitted on July 1, 2014 and October 24, 2014. 
Where there are multiple amendments to the same provision, we have 
limited our review to only the most recently submitted amendment to any 
particular provision. We intend to address the remaining portions of 
the SIP submittals that are not related to major NNSR, and that we have 
not yet acted on, in one or more separate actions.

II. Background for the Proposed Major NNSR Action

    On July 18, 1997, the EPA revised the NAAQS for particulate matter 
to add new standards for fine particles, using PM2.5 as the 
indicator. Previously, the EPA used PM10 (inhalable 
particles smaller than or equal to 10 micrometers in diameter) as the 
indicator for the particulate matter NAAQS. The EPA established health-
based (primary) annual and 24-hour standards for PM2.5, 
setting an annual standard at a level of 15 micrograms per cubic meter 
([micro]g/m\3\) and a 24-hour standard at a level of 65 [micro]g/m\3\ 
(62 FR 38652). At the time the 1997 primary standards were established, 
the EPA also established welfare-based (secondary) standards identical 
to the primary standards. The secondary standards are designed to 
protect against major environmental effects of PM2.5, such 
as visibility impairment and materials damage. The State of Alaska had 
no areas violating the annual or 24-hour 1997 PM2.5 NAAQS at 
the time the standards were promulgated.
    On October 17, 2006, the EPA revised the primary and secondary 
PM2.5 NAAQS (71 FR 61236). In that rulemaking, the EPA 
lowered the 24-hour PM2.5 NAAQS to 35 [micro]g/m\3\ and 
retained the existing annual PM2.5 NAAQS of 15 [micro]g/
m\3\. In 2009, as a result of the change in the 24-hour 
PM2.5 NAAQS from 65 [micro]g/m\3\ to 35 [micro]g/m\3\, the 
EPA designated Fairbanks, Alaska as nonattainment based on 2006-2008 
monitoring data (74 FR 58688, November 13, 2009). The Fairbanks 
PM2.5 nonattainment area covers the expanded part of 
Fairbanks North Star Borough (FNSB) and is currently the only 
nonattainment area in the State of Alaska.
    On May 16, 2008, the EPA finalized a rule to implement the 
PM2.5 NAAQS, including changes to the New Source Review 
(NSR) program (2008 NSR PM2.5 Rule, 73 FR 28321). The 2008 
NSR PM2.5 Rule revised the NSR program requirements to 
establish a framework for implementing preconstruction permit review 
for the PM2.5 NAAQS in both attainment and nonattainment 
areas. The 2008 NSR PM2.5 Rule also established the 
following NSR requirements to implement the PM2.5 NAAQS: (1) 
Required NSR permits to address directly emitted PM2.5 and 
precursor pollutants; (2) established significant emission rates for 
direct PM2.5 and precursor pollutants, including sulfur 
dioxide (SO2) and oxides of nitrogen (NOX); (3) 
established PM2.5 emission offsets for nonattainment areas; 
and (4) required states to account for gases that condense to form 
particles in PM2.5 emission limits. Alaska's regulations, 
submitted to the EPA on December 11, 2009, November 29, 2010, December 
10, 2012, January 28, 2013, July 1, 2014, and October 24, 2014, were 
revised to address the requirements of the 2008 NSR PM2.5 
rule, as well as to provide general updates that apply to all the 
NAAQS.

III. Effect of the January 4, 2013 D.C. Circuit Decision Regarding 
PM2.5 Implementation Under Subpart 4

    On January 4, 2013, the U.S. Court of Appeals for the District of 
Columbia Circuit, in Natural Resources Defense Council v. EPA \2\ 
issued a decision that remanded the EPA's 2007 and 2008 rules 
implementing the 1997 PM2.5 NAAQS. Relevant here, the 2008 
NSR PM2.5 Rule promulgated NSR requirements for 
implementation of PM2.5 in both nonattainment areas and 
attainment/unclassifiable areas. The Court found that the EPA erred in 
implementing the PM2.5 NAAQS in these rules solely pursuant 
to the general implementation provisions of subpart 1, part D, title I 
of the CAA, rather than pursuant to the additional implementation 
provisions specific to particulate matter nonattainment areas in 
subpart 4. The Court ordered the EPA to ``repromulgate these rules 
pursuant to

[[Page 65368]]

Subpart 4 consistent with this opinion.'' Id. at 437.
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    \2\ 706 F.3d 428 (D.C. Cir. 2013).
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    On June 2, 2014, the EPA published a final rulemaking, 
Identification of Nonattainment Classification and Deadlines for 
Submission of State Implementation Plan (SIP) Provisions for the 1997 
Fine Particle (PM2.5) National Ambient Air Quality Standard 
(NAAQS) and 2006 PM2.5 NAAQS, that begins to address the 
remand (79 FR 31566). The final rule classified all existing 
PM2.5 nonattainment areas as ``Moderate'' nonattainment 
areas and set a deadline of December 31, 2014, for states to submit any 
SIP submissions, including major NNSR SIPs, that may be necessary to 
satisfy the requirements of subpart 4, part D, title I of the CAA, with 
respect to PM2.5 nonattainment areas.
    In a separate rulemaking process, the EPA is evaluating the 
requirements of subpart 4 as they pertain to nonattainment NSR for 
PM2.5 emissions. In particular, subpart 4 includes section 
189(e) of the CAA, which requires the control of major stationary 
sources of PM10 precursors ``except where the Administrator 
determines that such sources do not contribute significantly to 
PM10 levels which exceed the standard in the area.'' Under 
the Court's decision in NRDC, section 189(e) of the CAA also applies to 
PM2.5.
    Alaska submitted SIP revisions to two definitions in Alaska's major 
NNSR program. In 18 AAC 50.040(i)(1), Alaska revised the definition of 
``regulated NSR pollutant'' by adopting by reference the Federal 
definition of ``regulated NSR pollutant'' at 40 CFR 
51.165(a)(1)(xxxvii), which includes precursors to both ozone and 
PM2.5 in nonattainment areas. With respect to 
PM2.5, the adopted by reference definition of ``regulated 
NSR pollutant'' identifies sulfur dioxide and nitrogen oxides as 
regulated PM2.5 precursors while volatile organic compounds 
(VOCs) and ammonia are not regulated PM2.5 precursors in 
PM2.5 nonattainment areas in the State. In addition, in 18 
AAC 50.040(i)(1), Alaska adopted by reference the Federal definition of 
``significant'' at 40 CFR 51.165(a)(1)(x), which includes significant 
emission rates for direct PM2.5 and for sulfur dioxide and 
nitrogen oxides as PM2.5 precursors. These revisions, 
although consistent with the 2008 NSR PM2.5 Rule developed 
in accordance with subpart 1 of the CAA, may not contain the elements 
necessary to satisfy the CAA requirements when evaluated under the 
subpart 4 statutory requirements. In particular, Alaska's submission 
does not include regulation of VOCs and ammonia as PM2.5 
precursors, nor does it include a demonstration consistent with section 
189(e) showing that major sources of those precursor pollutants would 
not contribute significantly to PM2.5 levels exceeding the 
standard in the area. For these reasons, the EPA cannot conclude at 
this time that this part of Alaska's major NNSR submission satisfies 
all of the requirements of subpart 4 as they pertain to 
PM2.5 major NNSR permitting.
    Although the revisions to Alaska's major NNSR rule may not contain 
all of the necessary elements to satisfy the CAA requirements when 
evaluated under the subpart 4 provisions, the revisions themselves 
represent a strengthening of Alaska's currently-approved major NNSR SIP 
which does not address PM2.5 at all. As a result of the June 
2, 2014, final rule, the State will have until December 31, 2014, to 
make any additional submission necessary to address the requirements of 
subpart 4, including addressing the PM2.5 precursors VOCs 
and ammonia. For these reasons, the EPA is proposing to approve the 
major NNSR revisions at 18 AAC 50.040(i), without listing as a 
deficiency at this time the absence of either the regulation or 
evaluation of VOCs and ammonia as PM2.5 precursors.

IV. Alaska's Revisions to Major NNSR

    Table 1 below summarizes the revisions submitted by the State 
related to major NNSR and addressed in this action, including the 
submittal date, the State effective date, and the title and section of 
18 AAC 50 related to the major NNSR program. Where there are multiple 
amendments to the same provision, the EPA limited its review to the 
most recently submitted amendment to that particular provision.

                                          Table 1--Alaska SIP Revisions to Major NNSR Addressed in This Action
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                                     State         Major NNSR-related provisions of 18 AAC 50.040       Major NNSR-related provisions of 18 AAC 50.990
       Date of submittal        effective date                   revised or amended                                   revised or amended
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12/11/2009....................       7/25/2008  (i), (i)(7), (i)(8), (i)(9), (i)(10)...............
11/29/2010....................       12/9/2010  (i)................................................
12/10/2012....................       9/14/2012  (i), (i)(1)(B).....................................
1/28/2013.....................        1/4/2013  (i)(1)(A), (i)(1)(B), (i)(1)(B)(ii)................
7/1/2014......................       10/6/2013  (i), (i)(1)(B), (i)(2), (i)(4), (i)(5), (i)(6).....  (40).
10/24/2014....................       11/9/2014  (i), (i)(1)(B), (i)(2), (i)(4), (i)(5), (i)(6).....  (92).
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    Alaska's major NNSR program is comprised of 18 AAC 50.311 
(Nonattainment Area Major Stationary Source Permits), which was 
previously approved on August 14, 2007 (72 FR 45378) and has not been 
revised since, and 18 AAC 50.040 (Federal Standards Adopted by 
Reference), paragraph (i), relating to 40 CFR 51.165 (Permit 
Requirements). Definitions for specific terms referenced by these 
provisions are found in 18 AAC 50.990 (Definitions). To ensure that its 
regulations are consistent with the EPA requirements, Alaska generally 
updates annually its adoption by reference citations to the Federal 
major NNSR regulations at 40 CFR 51.165 (Permit Requirements) in 18 AAC 
50.040(i).\3\ Because of this practice, the revisions submitted by the 
State and listed in Table 1 are primarily updates to make the State's 
regulations consistent with updates to the Federal regulations. Other 
revisions are discussed below.
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    \3\ In some instances 18 AAC 50.040(i) does not directly adopt 
by reference the Federal provisions, but instead references 
provisions in AS 46.14.990 or 18 AAC 50.990, which, in turn, 
reference the Federal provisions in 40 CFR 51.165.
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    In the State's December 11, 2009, submittal, exceptions were added 
to the major NNSR regulations at 18 AAC 50.040(i)(10), relating to the 
adoption by reference of ``Actuals PALs,'' in 40 CFR 51.165(f). Under 
18 AAC 50.040(i)(10)(A), mass balance calculations, as authorized under 
40 CFR 52.165(f)(12)(ii)(A), are also acceptable for activities 
emitting sulfur dioxide from the combustion of fuel to the extent 
otherwise available for activities using coatings or solvents. This 
includes the requirement that the emission unit is assumed to emit all 
of the sulfur in the fuel as sulfur dioxide. Under 18 AAC 
50.040(i)(10)(B), the monitoring requirements of 40 CFR 
52.21(f)(12)(iii) are applied to owners or operators using mass balance 
calculations to monitor plantwide

[[Page 65369]]

applicability limitation (PAL) pollutant emissions from activities 
emitting sulfur dioxide from the combustion of fuel. These provisions 
are approvable because they are an appropriate method of determining 
compliance with a PAL for the narrow activity added by ADEC's 
regulations.
    In the State's July 1, 2014 submittal, Alaska repealed provisions 
in 18 AAC 50.040(i), paragraphs (7), (8) and (9), that related to clean 
units and pollution control projects. The comparable Federal provisions 
were initially vacated by a court and then repealed by the EPA. Repeal 
of these provisions as a matter of state law does not affect the SIP 
because the EPA had not previously approved these provisions into the 
SIP and because they are no longer elements of the Federal major NNSR 
program.
    Alaska submitted revisions to two definitions in 18 AAC 50.990 
related to major NNSR. On October 24, 2014, the State revised 18 AAC 
50.040(i)(1) to adopt by reference the Federal definition of 
``regulated NSR pollutant'' at 40 CFR 51.165(a)(1)(xxxvii) and also 
repealed the definition ``regulated NSR pollutant'' in 18 AAC 
50.990(92) because the State has now adopted the Federal definition in 
18 AAC 50.040(i). With these revisions, the State's definition of 
``regulated NSR pollutant'' at 18 AAC 50.040(i)(1) is consistent with 
the current Federal definition of ``regulated NSR pollutant'' for major 
NNSR and is approvable.
    On July 1, 2014, Alaska revised its major NNSR regulations at 18 
AAC 50.040(i)(1)(B)(2) to reference the definition of ``fugitive 
emissions'' in 18 AAC 50.990(40). In turn, 18 AAC 50.990(40) was 
revised to adopt by reference the Federal definition of ``fugitive 
emissions'' at 40 CFR 51.166(b)(20).\4\ The definition of ``fugitive 
emissions'' referenced in 18 AAC 50.990(40) is consistent with the 
Federal definition of ``fugitive emissions'' for major NNSR and is 
approvable.
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    \4\ The definition of ``fugitive emissions'' in 40 CFR 
51.166(b)(20) is identical to the definition of ``fugitive 
emissions'' in 51.165(a)(1)(ix).
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    We note that in the State's October 24, 2014 submittal, technical 
corrections were made to the revisions in 18 AAC 50.040(i)(2), (4), (5) 
and (6) that were submitted on July 1, 2014. The effect of these 
corrections is that the State has submitted its repeal of 18 AAC 
50.040(i)(4) and no changes were made to the adoption by reference of 
Federal provisions at 18 AAC 50.040(i)(2), (5) and (6). The repealed 
provision at 18 AAC 50.040(i)(4) adopted by reference an exemption for 
fugitive emissions in 40 CFR 51.165(a)(4) that duplicates an exemption 
contained in the State's definition of ``major stationary source'' and 
its repeal is therefore approvable.
    In summary, revisions to Alaska's major NNSR regulations in 18 AAC 
50.040(i) are approvable because the submitted revisions bring the 
State's major NNSR program up to date with current Federal requirements 
and, as explained above, represent a strengthening of Alaska's 
currently-approved major NNSR program.

V. Proposed Action

    Pursuant to section 110 of the CAA and consistent with the 
discussion above, the EPA proposes to approve the Alaska SIP revisions 
submitted on December 11, 2009, November 29, 2010, December 10, 2012, 
January 28, 2013, July 1, 2014, and October 24, 2014 that update the 
adoption by reference of the Federal major NNSR program and revise the 
definition of ``regulated NSR pollutant.'' The EPA has made the 
preliminary determination that these SIP revisions are approvable 
because they are consistent with the CAA and the current EPA 
requirements regarding major NNSR. The EPA intends to address the 
remaining portions of the SIP submittals that are not related to major 
NNSR, and have not yet been addressed, in one or more separate actions.

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).
The SIP is not approved to apply on any Indian reservation land or in 
any other area where the EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it 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, Particulate matter, Reporting 
and recordkeeping requirements.

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

    Dated: October 27, 2014.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2014-26181 Filed 11-3-14; 8:45 am]
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