[Federal Register Volume 86, Number 219 (Wednesday, November 17, 2021)]
[Proposed Rules]
[Pages 64105-64108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24965]



40 CFR Part 52

[EPA-R10-OAR-2021-0216, FRL-9168-01-R10]

Air Plan Approval; AK; Incorporation by Reference Updates and 
Permit Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.


SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve revisions to the Alaska State Implementation Plan (SIP) 
submitted on November 10, 2020. The revisions update the adoption by 
reference of certain Federal air regulations and add a pre-approved 
emission limit option that may be used to permit diesel engine 
facilities, among other changes. The EPA is proposing to approve the 
submitted revisions as consistent with Clean Air Act requirements.

DATES: Comments must be received on or before December 17, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2021-0216, at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from https://www.regulations.gov. The EPA may 
publish any comment received to its public docket. Do not 
electronically submit any information you consider to be Confidential 
Business Information (CBI) or other information the disclosure of which 
is restricted by statute. Multimedia submissions (audio, video, etc.) 
must be accompanied by a written comment. The written comment is 
considered the official comment and should include discussion of all 
points you wish to make. The EPA will generally not consider comments 
or comment contents located outside of the primary submission (i.e. on 
the web, cloud, or other file sharing system). For additional 
submission methods, the full EPA public comment policy, information 
about CBI or multimedia submissions, and general guidance on

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making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

Sixth Avenue, Suite 155, Seattle, WA 98101, at (206) 553-6357 or 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we'' and ``our'' 
mean ``the EPA''.

Table of Contents

I. Background
II. Evaluation of Submission
    A. Updates to Adoption by Reference
    B. Pre-Approved Emission Limit Option
    C. Electronic Notification and Reporting
    D. Standard Permit Conditions
    E. Contingency Measures
    F. Editorial Changes
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background

    Each state has a SIP containing the control measures and strategies 
used to attain and maintain the national ambient air quality standards 
(NAAQS) established by the EPA for the criteria pollutants (carbon 
monoxide, lead, nitrogen dioxide, ozone, particulate matter, sulfur 
dioxide). The SIP is governed by section 110 of the Clean Air Act 
(CAA), and contains such elements as air pollution control regulations, 
emission inventories, monitoring network, attainment demonstrations, 
and enforcement mechanisms. The SIP is a living compilation of these 
elements and is revised and updated by the state over time--to remain 
consistent with Federal requirements and to address changing air 
quality conditions in the state.
    Alaska establishes state air quality requirements in Alaska 
Administrative Code Title 18 Environmental Conservation, Chapter 50 Air 
Quality Control (18 AAC 50). The State then submits these provisions 
for EPA approval and incorporation by reference into the Alaska SIP in 
the Code of Federal Regulations (CFR) at 40 CFR part 52, subpart C, 
making the provisions federally enforceable. The Alaska SIP includes a 
variety of air pollution control measures, including permitting 
programs designed to limit emissions from new and modified major and 
minor stationary sources. To ensure the permitting programs remain 
consistent with Federal requirements, the State adopts certain 
provisions of the Federal air regulations by reference as of a certain 
date and submits updates to the EPA for approval. Alaska also makes 
periodic changes to State permitting programs to improve implementation 
and to address changing air quality conditions in the State.

II. Evaluation of Submission

A. Updates to Adoption by Reference

    On November 10, 2020, Alaska submitted revisions to the SIP that, 
among other things, update the adoption by reference of certain Federal 
regulations as of July 1, 2019.\1\ These regulations include Federal 
test procedures and methods, major source pre-construction permitting 
requirements, public notice requirements for stationary source permits, 
guidelines on air quality models, and specific air quality definitions 
used in the Alaska SIP and adopted by reference in 18 AAC 50.035, 040, 
250, 311, 502, and 990.

    \1\ The November 10, 2020, SIP revision also requests EPA 
approval of the Mendenhall Valley and Eagle River Limited 
Maintenance Plans. We are addressing these submitted plans in 
separate actions. Please see our proposed rulemakings published 
August 11, 2021 (86 FR 43984), and September 2, 2011 (86 FR 49278).

    Alaska also submitted a revision to 18 AAC 50.077 to correct the 
date by which the State has adopted the National Fireplace Institute 
Policy Handbook. This change corrects the date of adoption from 
November 19, 2019, to November 22, 2019, the date on which the Hearth, 
Patio and Barbeque Board of Governors formally adopted the National 
Fireplace Institute Policy Handbook in its current form. In addition, 
the submitted revisions update references in 18 AAC 50.015 to area 
designations and classifications codified in 40 CFR part 81, revised as 
of July 1, 2019.
    We have evaluated the submitted adoption updates and propose to 
approve them because these routine updates are designed keep state 
requirements current with requirements for SIPs. Additional details on 
the adoption updates may be found in the submission which is placed in 
the docket for this action.

B. Pre-Approved Emission Limit Option

    Alaska submitted a revision to the SIP to add a pre-approved 
emission limit option to the existing minor stationary source 
permitting program. This new option, added to 18 AAC 50.230, is 
available to certain diesel engine facilities comprised entirely of 
newer, cleaner ``EPA-tiered'' diesel engines. EPA-tiered diesel engines 
are designed and manufactured to be cleaner-burning than older, pre-
tiered engines.
    Under this option, Alaska establishes standard fuel limits based on 
engine type, capacity, and certification tier under the EPA New Source 
Performance Standards for Stationary Compression Ignition Internal 
Combustion Engines.\2\ The standard fuel limits are designed to 
effectively limit nitrogen oxide emissions to below the nitrogen oxide 
minor source permitting threshold, and by adhering to the fuel limit, 
sources may be able to avoid more complex permitting requirements in 18 
AAC 50.

    \2\ Codified at 40 CFR part 60, subpart IIII, most recently 
revised on November 13, 2019, at 84 FR 61563.

    The EPA has recognized that for certain classes of sources, such as 
fuel-burning equipment, it is possible for states to establish 
enforceable emission limits that serve to limit potential to emit 
through exclusionary rules that apply to certain source categories.\3\ 
To be approvable, an exclusionary rule must, among other things, be 
technically justified, require that the owner or operator specifically 
apply for coverage under the rule, require the applicant to comply with 
the limit in the rule, and provide that a violation of the rule is a 
violation of the SIP.\4\

    \3\ See Memorandum from JD Kent Berry, Acting Director, Air 
Quality Management Division, Office of Air Quality Planning and 
Standards (OAQPS), entitled ``Guidance for State Rules for Optional 
Federally-Enforceable Emissions Limits Based on Volatile Organic 
Compound Use,'' dated October 15, 1993; Memorandum from John Seitz, 
Director, OAQPS, entitled ``Approaches for Creating Federally-
Enforceable Emission Limits,'' dated November 3, 1993; Memorandum 
from Kathie A. Stein, Director, Air Enforcement Division, Office of 
Enforcement and Compliance Assurance, entitled ``Enforceability 
Requirements for Limiting Potential to Emit Through SIP Rules and 
General Permits,'' dated January 25, 1995 (``Enforceability 
Requirements for Limiting PTE''); Memorandum from John Seitz, 
Director, OAQPS, entitled ``Potential to Emit Guidance for Specific 
Source Categories,'' dated April 14, 1998.
    \4\ Enforceability Requirements for Limiting PTE, at 6.

    Alaska's new pre-approved limit option is an exclusionary rule that 
allows a subject source to limit nitrogen oxide emissions by limiting 
the amount of diesel fuel used during the year. Alaska used updated EPA 
emissions factors to calculate the maximum quantity of fuel that may be 
burned by a specific engine type and certification tier, while staying 
below the 40 tons per year minor source potential to emit threshold in 
the Alaska SIP for nitrogen oxide emissions (18 AAC 50.502(c)(1)(B)). 
The submission states that the new option establishes ``a diesel fuel 
limit corresponding to the lowest tiered engine at the facility; 
allowing 200,000; 300,000; 500,000; and 1,000,000 gallons of diesel 
fuel be consumed in any 12 consecutive months for engine tiers 1; 2; 3; 
and 4 respectively.'' Alaska compiled these

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fuel limits for the pre-approved emission limit option into a new 
table, Table 5a, added to 18 AAC 50.230.
    In addition, Alaska established specific procedures a source must 
follow to operate under a pre-approved limit. To qualify for coverage, 
a source must submit a request to the State to operate under a specific 
limit in Table 5a, and a source must provide information justifying 
they qualify for coverage under the limit. After submitting the 
request, a source must follow specific monitoring, recordkeeping, and 
reporting requirements to ensure compliance with the limit.
    The first pre-approved emission limit option for limiting nitrogen 
oxide emissions from certain stationary diesel engines was approved by 
the EPA as consistent with EPA exclusionary rules on August 14, 2007 
(72 FR 45378). We have reviewed the new pre-approved emission limit 
option submitted on November 10, 2021, and find it is consistent with 
EPA guidance for exclusionary rules. Therefore, we proposed to approve 
the revision to 18 AAC 50.230 and incorporate it by reference into the 
Alaska SIP.

C. Electronic Notification and Reporting

    Alaska submitted revisions to several rules to clarify permit 
notification to the EPA and modernize permit reporting processes (18 
AAC 50.205, 230, 502 and 542). Alaska revised minor source permit 
procedural requirements to make clear that upon receipt of a complete 
minor source permit application, the Alaska Department of Environmental 
Conservation (ADEC) will not only notify the public and interested 
parties via SIP-approved procedures, but will also notify the EPA, 
consistent with EPA regulations at 40 CFR 51.161. In addition, Alaska 
revised the minor source permit regulations to encourage stationary 
source owners and operators to submit reports and other documents 
electronically to ADEC. Finally, Alaska added a requirement that permit 
reports and other documents be signed using state-approved digital 
signature procedures.
    We propose to approve the electronic notification and reporting 
changes because they clarify SIP-approved requirements and are 
consistent with 40 CFR 51.161 public notice requirements for minor pre-
construction permits and EPA guidance on federally enforceable state 
operating permit programs (54 FR 27274, June 28, 1989).

D. Standard Permit Conditions

    The provision at 18 AAC 50.346 sets forth and incorporates by 
reference conditions that are required to be in certain air permits, 
unless ADEC determines that emissions unit-specific or stationary 
source-specific conditions more adequately meet the requirements of 
state air quality regulations in 18 AAC 50 or, in some cases, that no 
comparable condition is appropriate for the stationary source or 
emissions unit. This provision is not currently in the SIP. In the 
November 10, 2020, SIP submission, Alaska made changes to this 
regulation and the standard conditions it incorporates by reference.
    The EPA continues to believe that 18 AAC 50.346 is not appropriate 
for SIP approval. By its terms, the standard conditions referenced in 
this section are used in permits ``unless the department determines 
that emissions unit-specific or stationary source-specific conditions 
more adequately meet the requirements of this chapter.'' Therefore, the 
final decision on the extent to which such permit conditions, or 
modifications thereof, are included in a permit issued under the SIP is 
made in the context of issuing the permit. See generally 80 FR 33840, 
pp. 33917-33918 (June 12, 2015). After consultation with the EPA, ADEC 
requested to remove this rule and associated standard conditions from 
the submission.

E. Contingency Measures

    The submitted revisions to the SIP add new rule language to 
centralize contingency measure triggers for nonattainment and 
maintenance areas in the state. There is only one nonattainment area in 
Alaska, specifically the Fairbanks North Star Borough fine particulate 
matter (PM2.5) nonattainment area. There are also are a 
handful of areas that were formerly in nonattainment for carbon 
monoxide and coarse particulate matter (PM10), but that have 
since been redesignated to attainment based on an approved maintenance 
plans that include contingency measures.
    The revisions add paragraph (c) to 18 AAC 50.030 to specify that 
contingency measures are triggered upon (1) the effective date of an 
EPA finding that the area failed to attain the NAAQS by the applicable 
attainment date, failed to meet a quantitative milestone, failed to 
submit a required quantitative milestone report, or failed to meet a 
reasonable further progress requirement, or (2) an occurrence of a 
condition identified in the State Air Quality Control Plan as requiring 
implementation of a contingency measure. We have reviewed the 
centralized contingency measure provision and propose to approve it 
because it is consistent with title I, part D nonattainment and 
maintenance planning requirements and is also consistent with the EPA's 
implementing regulations for PM2.5 in 40 CFR part 51, 
subpart Z.

F. Editorial Changes

    The revisions to the SIP also include editorial changes to several 
rules to update the name of the Port of Alaska and to make consistent 
use of terms and fix cross-references. We propose to approve the 
editorial changes because they are administrative in nature and do not 
change the meaning of the regulations.

III. Proposed Action

    The EPA is proposing to approve, and incorporate by reference, the 
regulatory revisions to the Alaska SIP submitted on November 10, 2020, 
as being consistent with CAA section 110 and part C and D requirements. 
Upon final approval, the Alaska SIP will include the following 
regulations, State effective November 7, 2020:
     18 AAC 50.015 Air Quality Designations, Classifications, 
and Control Regions;
     18 AAC 50.030 State Air Quality Control Plan, except (a);
     18 AAC 50.035 Documents, Procedures and Methods Adopted by 
Reference, except (a)(6), (a)(9), and (b)(4);
     18 AAC 50.040 Federal Standards Adopted by Reference, 
except (a), (b), (c), (d), (e), (g), (j) and (k);
     18 AAC 50.077 Standards for Wood-Fired Heating Devices, 
except (h);
     18 AAC 50.205 Certification;
     18 AAC 50.230 Preapproved Emission Limits;
     18 AAC 50.250 Procedures and Criteria for Revising Air 
Quality Classifications;
     18 AAC 50.311 Nonattainment Area Major Stationary Source 
     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; and
     18 AAC 50.990 Definitions.

IV. Incorporation by Reference

    In this document, the EPA is proposing to include in a final rule, 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference the provisions described in Section III of this preamble. The 
EPA has made, and will continue to make, these documents generally 
available through https://www.regulations.gov and at the EPA

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Region 10 Office (please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section of this preamble for more 

V. Statutory and Executive Order Reviews

    Under the CAA, the EPA 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 
proposed 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 proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
     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 application of the requirements would be inconsistent 
with the CAA; 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 proposed rulemaking would not 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 proposed rulemaking does not have tribal 
implications as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000).

List of Subjects in 40 CFR Part 52

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

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

    Dated: November 8, 2021.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.
[FR Doc. 2021-24965 Filed 11-16-21; 8:45 am]