[Federal Register Volume 79, Number 217 (Monday, November 10, 2014)]
[Rules and Regulations]
[Pages 66651-66654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26523]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2014-0140, FRL-9918-97-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: Final rule.

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SUMMARY: The EPA is approving 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.

DATES: This final rule is effective on December 10, 2014.

ADDRESSES: The EPA has established a docket for this action under 
Docket Identification No. EPA-R10-OAR-2014-0140. All documents in the 
docket are listed on the http://www.regulations.gov Web site. Although 
listed in the index, some information may not be publicly available, 
i.e., Confidential Business Information 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 through http://www.regulations.gov or in hard copy at EPA Region 10, Office of Air, 
Waste, and Toxics, AWT-150, 1200 Sixth Avenue, Seattle, Washington 
98101. The EPA requests that you contact the person listed in the FOR 
FURTHER INFORMATION CONTACT section to schedule your inspection. The 
Regional Office's official hours of business are Monday through Friday, 
8:30 to 4:30, excluding federal holidays.

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. Response to Comment
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    Section 110 of the CAA specifies the general requirements for 
states to submit SIPs to implement, maintain and enforce the NAAQS and 
the EPA's actions regarding approval of those SIPs. On July 9, 2012 and 
March 29, 2011, Alaska made SIP submissions to the EPA demonstrating 
that the Alaska SIP meets the infrastructure requirements of the CAA 
for the 1997 PM2.5, 2006 PM2.5, and 2008 ozone 
NAAQS. On July 16, 2014, we proposed approval of 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) (79 FR 
41496). We also proposed approval of 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 proposed 
approval of the Alaska SIP as meeting the requirements of CAA section 
110(a)(2)(G) for the 2008 ozone NAAQS.
    An explanation of the CAA requirements and implementing regulations 
that are met by these SIP submissions, a detailed explanation of the 
submissions, and the EPA's reasons for the proposed action were 
provided in the notice of proposed rulemaking on July 16, 2014, and 
will not be restated here (79 FR 41496). Below we address a recent 
court decision related to the application of PSD permitting 
requirements to greenhouse gases (GHGs) and why we believe the decision 
does not impact this action.
    With respect to CAA section 110(a)(2)(C) and (J), the EPA 
interprets the CAA to require each state to make an infrastructure SIP 
submission for a new or revised NAAQS that demonstrates that the state 
has a complete PSD permitting program meeting the current requirements 
for all regulated NSR pollutants. The requirements of CAA section 
110(a)(2)(D)(i)(II) may also be satisfied by demonstrating the state 
has a complete PSD permitting program correctly addressing all 
regulated NSR pollutants. Alaska has shown that it currently has a PSD 
program in place that covers all regulated NSR pollutants, including 
GHGs.
    On June 23, 2014, the United States Supreme Court issued a decision 
addressing the application of PSD permitting requirements to GHG 
emissions. Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not 
treat GHGs as an air pollutant for purposes of determining whether a 
source is a major source required to obtain a PSD permit. The Court 
also said that the EPA could continue to require that PSD permits, 
otherwise required based on emissions of pollutants other than GHGs, 
contain limitations on GHG emissions based on the application of Best 
Available Control Technology (BACT). In order to act consistently with 
its understanding of the Court's decision pending further judicial 
action to effectuate the decision, the EPA is not continuing to apply 
the EPA regulations that would require that SIPs include permitting 
requirements that the Supreme Court found impermissible. Specifically, 
the EPA is not applying the requirement that a state's SIP-approved PSD 
program require that sources obtain PSD permits when GHGs are the only 
pollutant (i) that the source emits or has the potential to emit above 
the major source thresholds, or (ii) for which there is a significant 
emissions increase and a significant net emissions increase from a 
modification (e.g. 40 CFR 51.166(b)(48)(v)).
    The EPA anticipates a need to revise federal PSD rules in light of 
the

[[Page 66652]]

Supreme Court opinion. In addition, the EPA anticipates that many 
states will revise their existing SIP-approved PSD programs in light of 
the Supreme Court's decision. The timing and content of subsequent EPA 
actions with respect to EPA regulations and state PSD program approvals 
are expected to be informed by additional legal process before the 
United States District Court for the District of Columbia Circuit. At 
this juncture, the EPA is not expecting states to have revised their 
PSD programs for purposes of infrastructure SIP submissions and is only 
evaluating such submissions to assure that the state's program 
correctly addresses GHGs consistent with the Supreme Court's decision.
    At present, the EPA has determined the Alaska SIP is sufficient to 
satisfy CAA sections 110(a)(2)(C), (D)(i)(II), and (J) with respect to 
GHGs because the PSD permitting program previously-approved by the EPA 
into the SIP continues to require that PSD permits (otherwise required 
based on emissions of pollutants other than GHGs) contain limitations 
on GHG emissions based on the application of BACT. Although the 
approved Alaska PSD permitting program may currently contain provisions 
that are no longer necessary in light of the Supreme Court decision, 
this does not render the infrastructure SIP submission inadequate to 
satisfy CAA sections 110(a)(2)(C), (D)(i)(II), and (J) for purposes of 
the 1997 PM2.5, 2006 PM2.5 and 2008 ozone NAAQS. 
The SIP contains the necessary PSD requirements at this time, and the 
application of those requirements is not impeded by the presence of 
other previously-approved provisions regarding the permitting of 
sources of GHGs that the EPA does not consider necessary at this time 
in light of the Supreme Court decision. Accordingly, the Supreme Court 
decision does not affect the EPA's approval of Alaska's infrastructure 
SIP as to the requirements of CAA sections 110(a)(2)(C), (D)(i)(II), 
and (J) for purposes of the 1997 PM2.5, 2006 
PM2.5 and 2008 ozone NAAQS.

II. Response to Comment

    The public comment period for our proposed action ended on August 
15, 2014, and we received one comment via email from Robert Ukeiley of 
the Law Office of Robert Ukeiley.
    Comment: ``EPA must disapprove all of the PSD related elements of 
all three of these proposed Infrastructure SIPs because Alaska does not 
have PM2.5 increments in its SIP approved PSD program. EPA 
can approve these PSD related elements if the PM2.5 
increments are approved into the Alaska SIP prior to final action on 
these infrastructure SIPs. Also, the Alaska minor source permitting 
program does not prohibit minor sources from causing or contributing to 
PM2.5 and ozone NAAQS violations. Therefore, all SIP 
elements related to the minor source permitting program must be 
disapproved.''
    Response: With respect to the first part of the comment on Alaska's 
PSD program, we agree with the commenter. In our proposal we stated 
that final action on the Alaska infrastructure SIP requirements would 
be contingent upon our first taking final action on revisions to the 
Alaska SIP to reflect changes to the NAAQS and federal PSD regulations 
that we proposed to approve on May 5, 2014 (79 FR 25533). On September 
19, 2014, we finalized approval of the revisions, including updates to 
the PSD program for purposes of PM2.5 (79 FR 56268). Because 
we approved the NAAQS and PSD revisions to the Alaska SIP on September 
19, 2014, including the PM2.5 PSD increments, we are now 
finalizing our infrastructure approval.
    With respect to the second part of the comment on Alaska's minor 
NSR program, we disagree with the commenter. Alaska's minor NSR program 
was originally approved into the SIP by the EPA on July 5, 1983 (48 FR 
30623). We recently approved revisions to Alaska's minor NSR rules on 
September 19, 2014 (79 FR 56268). In that action, we determined that 
the revisions to Alaska's minor NSR program met the federal minor NSR 
regulatory requirements at 40 CFR 51.160-164 ``Review of New Sources 
and Modifications'' which include the requirement at 40 CFR 51.160(a) 
that all SIPs contain legally enforceable procedures to ensure that 
construction or modification of a stationary source will not cause a 
violation of a NAAQS or any applicable portions of the control 
strategy. Alaska's federally-approved minor NSR rules are located at 18 
AAC 50, Article 5 ``Minor Permits.'' 18 AAC 50.542(f)(1)(B) (approval 
criteria) and 18 AAC 50.544(c)(1) (screening ambient air quality 
analysis) specifically address the requirement at 40 CFR 51.160(a).
    In our September 19, 2014, action we determined that the Alaska 
minor NSR program meets federal requirements. We are now finalizing our 
approval of the Alaska SIP as meeting the requirements of CAA section 
110(a)(2)(C) with respect to minor NSR for the 1997 PM2.5, 
2006 PM2.5, and 2008 ozone NAAQS.

III. Final Action

    The EPA is approving 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 
approving 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 approving the Alaska SIP as meeting 
the requirements of CAA section 110(a)(2)(G) for the 2008 ozone NAAQS. 
This action is being taken under section 110 of the CAA.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 
action merely approves state law as meeting federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this 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 this action does not involve technical standards; and
     Does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human

[[Page 66653]]

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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by January 9, 2015. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: October 27, 2014.
Michelle Pirzadeh,
Acting Regional Administrator, Region 10.

    For the reasons stated in the preamble, 40 CFR part 52 is amended 
as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart C--Alaska

0
2. In Sec.  52.70, the table in paragraph (e) is amended by adding 
three entries at the end of the table for: ``110(a)(2) Infrastructure 
Requirements--1997 PM2.5 NAAQS.''; ``110(a)(2) 
Infrastructure Requirements--2006 PM2.5 NAAQS.''; and 
``110(a)(2) Infrastructure Requirements--2008 Ozone NAAQS.''
    The additions read as follows:


Sec.  52.70  Identification of plan.

* * * * *
    (e) * * *

                   EPA-Approved Alaska Nonregulatory Provisions and Quasi-Regulatory Measures
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                                     Applicable
     Name of SIP provision       geographic or non-       State       EPA Approval date          Comments
                                   attainment area   submittal date
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                                                  * * * * * * *
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                            Section 110(a)(2) Infrastructure and Interstate Transport
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                                                  * * * * * * *
110(a)(2) Infrastructure         Statewide.........          7/9/12  11/10/14 [Insert    Approves SIP for
 Requirements--1997 PM2.5 NAAQS.                                      Federal Register    purposes of CAA
                                                                      citation].          sections 110(a)(2)(A),
                                                                                          (B), (C), (D)(ii),
                                                                                          (E), (F), (H), (J),
                                                                                          (K), (L), and (M) for
                                                                                          the 1997 PM2.5 NAAQS.
110(a)(2) Infrastructure         Statewide.........   7/9/12, 3/29/  11/10/14 [Insert    Approves SIP for
 Requirements--2006 PM2.5 NAAQS.                                 11   Federal Register    purposes of CAA
                                                                      citation].          sections 110(a)(2)(A),
                                                                                          (B), (C), (D)(i)(II),
                                                                                          (D)(ii), (E), (F),
                                                                                          (H), (J), (K), (L),
                                                                                          and (M) for the 2006
                                                                                          PM2.5 NAAQS.
110(a)(2) Infrastructure         Statewide.........   7/9/12, 3/29/  11/10/14..........  Approves SIP for
 Requirements--2008 Ozone NAAQS.                                 11  [Insert Federal      purposes of CAA
                                                                      Register            sections 110(a)(2)(A),
                                                                      citation].          (B), (C), (D)(i)(II),
                                                                                          (D)(ii), (E), (F),
                                                                                          (G), (H), (J), (K),
                                                                                          (L), and (M) for the
                                                                                          2008 Ozone NAAQS
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[FR Doc. 2014-26523 Filed 11-7-14; 8:45 am]
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