Approval and Promulgation of Implementation Plans; Alaska: Infrastructure Requirements for the 2010 Nitrogen Dioxide and 2010 Sulfur Dioxide Standards, 47103-47114 [2016-17056]
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Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules
the state, the Federal Government, other
states, interstate agencies, groups,
political subdivisions, and industries
affected by the provisions of this act,
rules, or policies of the department.’’
Furthermore, FDEP has demonstrated
consultation with, and participation by,
affected local entities through its work
with local political subdivisions during
the developing of its Transportation
Conformity SIP and Regional Haze
Implementation Plan. EPA has made the
preliminary determination that Florida’s
SIP and practices adequately
demonstrate consultation with affected
local entities related to the 2010 1-hour
NO2 NAAQS when necessary.
V. Proposed Action
With the exception of the elements
related to the ambient air quality
monitoring and data system of section
110(a)(2)(B), the PSD permitting
requirements for major sources of
sections 110(a)(2)(C), prong 3 of D(i),
and (J), and the interstate transport
provisions pertaining to the
contribution to nonattainment or
interference with maintenance in other
states of prongs 1 and 2 of section
110(a)(2)(D)(i), EPA is proposing to
approve Florida’s January 22, 2013, SIP
submission to incorporate provisions
into the Florida SIP to address
infrastructure requirements for the 2010
1-hour NO2 NAAQS. EPA is proposing
to approve portions of Florida’s
infrastructure submission for the 2010
1-hour NO2 NAAQS because this
submission is consistent with section
110 of the CAA.
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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.
See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
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, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
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• 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 those requirements would
be inconsistent with the CAA; and
• Does not provide 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 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,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 8, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016–17055 Filed 7–19–16; 8:45 am]
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47103
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R10–OAR–2016–0133, FRL–9949–33–
Region 10]
Approval and Promulgation of
Implementation Plans; Alaska:
Infrastructure Requirements for the
2010 Nitrogen Dioxide and 2010 Sulfur
Dioxide Standards
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
Whenever a new or revised
National Ambient Air Quality Standard
(NAAQS) is promulgated, states must
submit a plan for the implementation,
maintenance and enforcement of such
standard, commonly referred to as
infrastructure requirements. The
Environmental Protection Agency (EPA)
is proposing to approve the May 12,
2015 Alaska State Implementation Plan
(SIP) submission as meeting the
infrastructure requirements for the 2010
nitrogen dioxide (NO2) and 2010 sulfur
dioxide (SO2) NAAQS.
DATES: Comments must be received on
or before August 19, 2016.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R10–
OAR–2016–0133, 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 submit
electronically 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
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
Docket: All documents in the
electronic docket are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, i.e., CBI or other
SUMMARY:
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information that is restricted by statute
from disclosure. 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 at https://
www.regulations.gov or in hard copy
during normal business hours at the
Office of Air and Waste, EPA Region 10,
1200 Sixth Avenue, Seattle, Washington
98101.
FOR FURTHER INFORMATION CONTACT:
Kristin Hall at (206) 553–6357 or
hall.kristin@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, it is
intended to refer to the EPA.
Table of Contents
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I. Background
II. Infrastructure Elements
III. EPA Approach to Review of Infrastructure
SIP Submissions
IV. EPA Evaluation
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. Background
On January 22, 2010, the EPA
established a primary NO2 NAAQS at
100 parts per billion (ppb), averaged
over one hour, supplementing the
existing annual standard (75 FR 6474).
On June 2, 2010, the EPA promulgated
a revised primary SO2 NAAQS at 75
ppb, based on a three-year average of the
annual 99th percentile of one-hour daily
maximum concentrations (75 FR 35520).
The Clean Air Act (CAA) requires that
states submit SIPs meeting CAA
sections 110(a)(1) and (2) within three
years after promulgation of a new or
revised NAAQS. CAA sections 110(a)(1)
and (2) require states to address basic
SIP elements, including but not limited
to emissions inventories, monitoring,
and modeling to provide for the
implementation, maintenance and
enforcement of the NAAQS, the socalled infrastructure requirements. On
September 13, 2013, the EPA issued
guidance to address the infrastructure
requirements for multiple standards,
including the 2010 NO2 and SO2
NAAQS.1
On May 12, 2015, the Alaska
Department of Environmental
Conservation (ADEC) made a
submission for purposes of CAA
sections 110(a)(1) and (2) for the 2010
1 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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NO2 and 2010 SO2 NAAQS. We note
that the submission also included
revisions to Alaska’s transportation
conformity regulations, approved on
September 8, 2015 (80 FR 53735), and
updates to general air quality and
permitting regulations, approved on
May 19, 2016 (81 FR 31511).
II. Infrastructure Elements
CAA section 110(a)(1) provides the
procedural and timing requirements for
SIP submissions after a new or revised
standard 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 implement, maintain and
enforce 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 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 document
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, are
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
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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), nor does it address CAA section
110(a)(2)(I). Furthermore, the EPA
interprets the CAA section 110(a)(2)(J)
provision on visibility as not triggered
by a new or revised NAAQS, because
the visibility requirements in part C,
title I of the CAA are not changed by a
new or revised NAAQS.
III. EPA Approach to Review of
Infrastructure SIP Submissions
The EPA is acting upon the May 12,
2015, submission from Alaska that
addresses the infrastructure
requirements of CAA sections 110(a)(1)
and 110(a)(2) for the 2010 NO2 and 2010
SO2 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
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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.2 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
inclusion in an infrastructure SIP
submission.
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.3 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
2 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.
3 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)).
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promulgated.4 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.
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.5 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 subelements of the same infrastructure SIP
submission.6
4 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.
5 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 fine
particulate matter (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).
6 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
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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.7
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 elements of Tennessee’s December 14, 2007
submission.
7 For example, implementation of the 1997 fine
particulate matter 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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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.8 The EPA most
recently issued guidance for
infrastructure SIPs on September 13,
2013 (2013 Guidance).9 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.10 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
8 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.
9 ‘‘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.
10 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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statutory provisions of section 110(a)(2),
as appropriate.
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),
(a)(2)(D)(i)(II), and (a)(2)(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
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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 the 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’’); 11 (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 SIPapproved 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.12 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
11 Subsequent to issuing the 2013 Guidance, the
EPA’s interpretation of the CAA with respect to the
approvability of affirmative defense provisions in
SIPs has changed. See ‘‘State Implementation Plans:
Response to Petition for Rulemaking; Restatement
and Update of EPA’s SSM Policy Applicable to
SIPs; Findings of Substantial Inadequacy; and SIP
Calls To Amend Provisions Applying to Excess
Emissions During Periods of Startup, Shutdown and
Malfunction,’’ 80 FR 33839 (June 12, 2015). As a
result, EPA’s 2013 Guidance (p. 21 & n.30) no
longer represents the EPA’s view concerning the
validity of affirmative defense provisions, in light
of the requirements of section 113 and section 304.
12 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 or affirmative defense 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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re-approval of any existing potentially
deficient provisions that relate to the
three specific issues just described.
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
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
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mitigate interstate transport, or to
otherwise comply with the CAA.13
Section 110(k)(6) authorizes the EPA to
correct errors in past actions, such as
past approvals of SIP submissions.14
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.15
IV. EPA Evaluation
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 submission
cites Alaska environmental and air
quality laws set forth at Alaska Statutes
13 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).
14 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).
15 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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(AS) Chapters 46.03 Environmental
Conservation and 46.14 Air Quality
Control, and regulations set forth at 18
AAC 50 Alaska Administrative Code
Title 18 Environmental Conservation,
Chapter 50 Air Quality Control (18 AAC
50). The relevant regulations are listed
below:
• 18 AAC 50.010: Ambient Air
Quality Standards.
• 18 AAC 50.015: Air Quality
Designations, Classifications, and
Control Regions.
• 18 AAC 50.040: Federal Standards
Adopted by Reference.
• 18 AAC 50.055: Industrial Processes
and Fuel Burning Equipment.
• 18 AAC 50.060: Pulp Mills.
• 18 AAC 50.260: Guidelines for Best
Available Retrofit Technology Under the
Regional Haze Rule.
• 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 Chapter 53 Fuel
Requirements for Motor Vehicles.
EPA analysis: On September 19, 2014,
the EPA approved numerous revisions
to the Alaska SIP, including updates to
18 AAC 50.010 Ambient Air Quality
Standards to reflect revisions to the
NAAQS, including the 2010 NO2 and
the 2010 SO2 NAAQS (79 FR 56268). In
addition, the EPA recently approved
updates to a number of regulations in 18
AAC 50 on May 19, 2016 (81 FR 31511).
Alaska generally regulates emissions
of NO2, and SO2 through its SIPapproved major and minor new source
review (NSR) permitting programs, in
addition to other rules described below.
We note that there are no areas in
Alaska currently designated
nonattainment for the 2010 NO2
NAAQS or the 2010 SO2 NAAQS, and
that the EPA has not yet completed
designations for the 2010 SO2 NAAQS.
However, 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 for
attainment and unclassifiable areas
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generally incorporates certain Federal
PSD program regulations by reference
into the Alaska SIP. The EPA most
recently approved revisions to Alaska’s
PSD permitting program on May 19,
2016 (81 FR 31511). The current Alaska
SIP-approved PSD permitting program
incorporates by reference specific
regulations at 40 CFR 52.21 and 40 CFR
51.166 as of December 9, 2013.
With respect to Alaska’s minor NSR
permitting program, we have
determined that the program regulates
minor sources of NO2 and SO2. In
addition, Alaska’s SIP contains rules
that establish controls to limit
combustion-generated pollutants. These
controls include incinerator emission
standards, emission limits for specific
industrial processes and fuel burning
equipment, emission limits for pulp
mills, visible emission limits on marine
vessel emissions, and fuel requirements
for motor vehicles. 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 2010 NO2 and 2010
SO2 NAAQS.
In this action, we are not proposing to
approve or disapprove any existing
Alaska provisions with respect 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 and the EPA is
addressing such state regulations in a
separate action.16 In the meantime, we
encourage any state having a deficient
SSM provision to take steps to correct
it as soon as possible.
In addition, we are not proposing to
approve or disapprove any existing
Alaska 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 (e.g., November 24, 1987, 52
FR 45109), and the EPA plans to take
action in the future to address such state
regulations through appropriate
statutory mechanisms. 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
16 The EPA issued a final action titled ‘‘State
Implementation Plans: Response to Petition for
Rulemaking; Restatement and Update of EPA’s SSM
Policy Applicable to SIPs; Findings of Substantial
Inadequacy; and SIP Calls to Amend Provisions
Applying to Excess Emissions During Periods of
Startup, Shutdown and Malfunction: Final Rule.’’
This rulemaking responds to a petition for
rulemaking filed by the Sierra Club that concerns
SSM provisions in 39 states’ SIPs (June 12, 2015,
80 FR 33840).
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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
the 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 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 references ADEC’s
revised Quality Assurance Project Plan
for the State of Alaska Air Monitoring
and Quality Assurance Program as
amended through February 23, 2010.
This document is adopted by reference
into the State Air Quality Control Plan
at 18 AAC 50.030(4). Validated State &
Local Air Monitoring Stations, and
Special Purpose Monitoring ambient air
quality monitoring data are verified, and
then electronically reported to the EPA
through the Air Quality System on a
quarterly basis.
The submission also references 18
AAC 50.035 Documents, Procedures,
and Methods Adopted by Reference
which include the most current, Federal
reference and interpretation methods for
NO2 and SO2. These methods are used
by ADEC in its ambient air quality
monitoring program to determine
compliance with the standards. The
submission cites the regulatory
requirements related to monitoring
found at 18 AAC 50.201 Ambient Air
Quality Investigation, 18 AAC 50.215
Ambient Air Quality Analysis Methods,
and 18 AAC 50.220 Enforceable Test
Methods.
EPA analysis: A comprehensive air
quality monitoring plan, intended to
meet the 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
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approved by the EPA on October 28,
2015. The plan includes the
implementation of NO2 and SO2
monitoring as required in 40 CFR part
58. We are proposing to approve the
Alaska SIP as meeting the requirements
of CAA section 110(a)(2)(B) for the 2010
NO2 and 2010 SO2 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 submission
references 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 50.020: Baseline Dates and
Maximum Allowable Increases.
• 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 50.110: Air Pollution
Prohibited.
• 18 AAC 50.215: Ambient Air
Quality Analysis Methods.
• 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 50.502: Minor Permits for
Air Quality Protection.
• 18 AAC 50.508: Minor Permits
Requested by the Owner or Operator.
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, the submission
refers to regulations pertaining to
compliance orders and enforcement
proceedings found at 18 AAC Chapter
95 Administrative Enforcement.
EPA analysis: With respect to the
requirement to have a program
providing for enforcement of all SIP
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measures, we are proposing to find that
Alaska statute provides ADEC 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 2010 NO2 and 2010
SO2 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, states are
required to have PSD, nonattainment
NSR, and minor NSR permitting
programs adequate to implement the
2010 NO2 and 2010 SO2 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 most recently approved
revisions to Alaska’s PSD program on
May 19, 2016 (81 FR 31511). Alaska’s
SIP-approved PSD program incorporates
by reference certain 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. The Alaska PSD program
incorporates by reference Federal PSD
requirements at 40 CFR 52.21 and 40
CFR 51.166 revised as of December 9,
2013.
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 has
a PSD program in place that covers all
regulated NSR pollutants, including
greenhouse gas (GHG) emissions. As
discussed below, we are proposing to
approve the Alaska SIP as meeting the
requirements of CAA section
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110(a)(2)(C), (D)(i)(II) and (J) with
respect to PSD.
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, our 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 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.
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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 recently revised federal PSD
rules in light of the Supreme Court
decision (May 7, 2015, 80 FR 26183). In
addition, we anticipate that many states
will revise their existing SIP-approved
PSD programs in light of the Supreme
Court’s decision. We do not expect that
all states have revised their existing PSD
program regulations yet, however, we
are evaluating submitted PSD program
revision to ensure that the state’s
program correctly addresses GHGs,
consistent with the Court’s decision.
At present, the EPA has determined
the Alaska SIP is sufficient to satisfy
CAA section 110(a)(2)(C), (a)(2)(D)(i)(II)
and (a)(2)(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.
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 our proposed approval of the
Alaska SIP as meeting the requirements
of CAA section 110(a)(2)(C),
(a)(2)(D)(i)(II) and (a)(2)(J) as those
elements relate to a comprehensive PSD
program.
Turning to the minor NSR
requirement, we have determined that
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the Alaska Federally-approved minor
NSR rules regulate minor sources for
purposes of the 2010 NO2 and 2010 SO2
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 2010 NO2
and 2010 SO2 NAAQS.
110(a)(2)(D)(i): 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)).
We note that Alaska’s May 12, 2015,
submission does not address the
requirements of 110(a)(2)(D)(i)(I) for the
2010 NO2 and 2010 SO2 NAAQS. ADEC
has addressed these requirements in a
separate submission, and we intend to
evaluate them in a future action. In this
action, we are proposing to approve the
Alaska SIP as meeting the requirements
of CAA section 110(a)(2)(D)(i)(II) and
110(a)(2)(D)(ii) for the 2010 NO2 and
2010 SO2 NAAQS.
State submission: For purposes of
CAA section 110(a)(2)(D)(i)(II), the
submission references the Alaska SIPapproved PSD program and the Alaska
Regional Haze Plan.
EPA analysis: 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 submissions referenced the
Alaska Federally-approved PSD
program. As discussed above, Alaska’s
SIP-approved PSD program last revised
on May 19, 2016, currently incorporates
by reference Federal PSD requirements
as of December 9, 2013 (81 FR 31511).
We are therefore proposing to approve
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the Alaska SIP as meeting the
requirements of CAA section
110(a)(2)(D)(i)(II) with respect to PSD
(prong 3) for the 2010 NO2 and 2010
SO2 NAAQS.
To address whether emissions from
sources in Alaska interfere with any
other state’s required measures to
protect visibility, the submission
references 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
2013 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
requirements of CAA section
110(a)(2)(D)(i)(II) as it applies to
visibility for the 2010 NO2 and 2010 SO2
NAAQS (prong 4).
110(a)(2)(D)(ii): Interstate and
International Transport Provisions
CAA section 110(a)(2)(D)(ii) requires
SIPs to include provisions ensuring
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 submission
references Alaska’s Federally-approved
PSD program and revisions to the SIP
submitted by ADEC to update the
Alaska PSD program.
EPA analysis: At 18 AAC 50.306(b),
Alaska’s PSD program 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 Federal 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
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the requirements of CAA section
110(a)(2)(D)(ii) for the 2010 NO2 and
2010 SO2 NAAQS.
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 submission
asserts 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. The ADEC
commissioner, however, 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
publically 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: https://
doe.alaska.gov/apoc/home.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
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regional government agencies, the
submission references statutory
authority and requirements for
establishing local air pollution control
programs 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 local
agencies 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 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). Finally, we are proposing
to find that Alaska 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 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 2010 NO2
and 2010 SO2 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
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established pursuant to the CAA, which
reports shall be available at reasonable
times for public inspection.
State submission: The submission
states that ADEC has general statutory
authority in AS 46.14 Air Quality
Control 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
(18 AAC 50.200) and ambient air quality
investigations (18 AAC 50.201).
Monitoring protocols and test methods
for stationary sources are adopted by
reference, including the Federal
reference and interpretation methods for
NO2 and SO2. The submission also
references the SIP-approved Alaska PSD
program. 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 50.010: Ambient Air
Quality Standards.
• 18 AAC 50.030: State Air Quality
Control Plan.
• 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 50.544: Minor Permits:
Content.
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,
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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, states are 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 https://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 2010 NO2 and 2010
SO2 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 submission
cites statutory authority including 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
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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 to 18 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.
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 for NO2 and SO2
(prevention of air pollution emergency
episodes, §§ 51.150 through 51.153).
Specifically, 40 CFR 51.150 through
51.153 prescribes the requirements for
emergency episode plans based on
classification of regions in a state. As
listed in 40 CFR 52.71 Classification of
Regions, all regions in Alaska are
classified Priority III for both NO2 and
SO2. Areas classified Priority III do not
need to develop episode plans under 40
CFR 51.150 through 51.153.
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 2010 NO2
and 2010 SO2 NAAQS.
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 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)
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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 updates 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. We have
approved revisions to the Alaska SIP on
numerous occasions in the past, most
recently on May 19, 2016 (81 FR 31511),
March 18, 2015 (80 FR 14038),
September 19, 2014 (79 FR 56268),
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 2010 NO2 and 2010 SO2 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 2–5 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 with respect
to 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
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to meet applicable requirements of part
C, title I of the CAA related to
prevention of significant deterioration
and visibility protection.
State submission: The 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 SIP-approved Alaska PSD program.
EPA analysis: The EPA finds that the
Alaska SIP, including the Alaska rules
for major source permitting, contains
provisions for consulting with
government officials as specified in
CAA section 121. Alaska’s PSD program
provides opportunity and procedures
for public comment and notice to
appropriate Federal, state and local
agencies. We most recently approved
revisions to the Alaska PSD program on
May 19, 2016 (81 FR 31511). In
addition, the EPA most recently
approved the Alaska rules that define
transportation conformity consultation
on September 8, 2015 (80 FR 53735).
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 2010 NO2 and 2010 SO2
NAAQS.
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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, SO2, and NO2. Alaska also
provides real-time air monitoring
information to the public on the ADEC
air quality Web site at https://
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 at https://
co.fairbanks.ak.us/airquality/. We are
proposing to approve the Alaska SIP as
meeting the requirements of CAA
section 110(a)(2)(J) for public
notification for the 2010 NO2 and 2010
SO2 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 most recently
approved revisions to Alaska’s PSD
program on May 19, 2016 (81 FR 31511).
We are proposing to approve the Alaska
SIP as meeting the requirements of CAA
section 110(a)(2)(J) for PSD for the 2010
NO2 and 2010 SO2 NAAQS. We note
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 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 2010
NO2 and 2010 SO2 NAAQS.
110(a)(2)(K): Air Quality and Modeling/
Data
CAA section 110(a)(2)(K) requires that
SIPs provide for (i) the performance of
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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 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
are 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 19, 2016, we
approved revisions to 18 AAC 50.215
Ambient Air Quality Analysis Methods
and 18 AAC 50.040 Federal Standards
Adopted by Reference (81 FR 31511). 18
AAC 50.040, at paragraph (f),
incorporates by reference the EPA
regulations at 40 CFR part 51, Appendix
W Guidelines on Air Quality Models
revised as of July 1, 2013.
Based on the foregoing, we are
proposing to approve the Alaska SIP as
meeting the requirements of CAA
section 110(a)(2)(K) for the 2010 NO2
and 2010 SO2 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 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
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).
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
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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 new source 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 2010 NO2
and 2010 SO2 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 submission
states 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. The
submission refers to AS 46.030.020
Powers of the department paragraphs (3)
and (8) which provide 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
section 110(a)(2)(M) for the 2010 NO2
and 2010 SO2 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 2010 NO2 and 2010 SO2
NAAQS: (A), (B), (C), (D)(i)(II), (D)(ii),
(E), (F), (G), (H), (J), (K), (L), and (M).
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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
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, 2011);
• 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, 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,
VerDate Sep<11>2014
17:58 Jul 19, 2016
Jkt 238001
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,
Lead, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and
recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 21, 2016.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2016–17056 Filed 7–19–16; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R10–OAR–2015–0854; FRL–9948–99–
Region 10]
Approval of Medford, Oregon; Carbon
Monoxide Second 10-Year Limited
Maintenance Plan
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve a
second 10-year carbon monoxide (CO)
limited maintenance plan (LMP) for the
Medford area, submitted by the Oregon
Department of Environmental Quality
(ODEQ) on December 11, 2015, along
with a supplementary submittal on
December 30, 2015, as a revision to its
State Implementation Plan (SIP). In
accordance with the requirements of the
Clean Air Act (CAA), the EPA is
approving this SIP revision because it
demonstrates that the Medford area will
continue to meet the CO National
Ambient Air Quality Standards
(NAAQS) for a second 10-year period
beyond redesignation, through 2025.
DATES: Comments must be received on
or before August 19, 2016.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R10–
OAR–2015–0854 at https://
www.regulations.gov, or via email to
Chi.John@epa.gov. For comments
submitted at Regulations.gov, follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. For either manner of
submission, the EPA may publish any
comment received to its public docket.
Do not submit electronically any
SUMMARY:
PO 00000
Frm 00066
Fmt 4702
Sfmt 9990
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure 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, please
contact the person identified in the ‘‘For
Further Information Contact’’ section.
For the full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: John
Chi, Air Planning Unit, Office of Air and
Waste (OAW–150), Environmental
Protection Agency, 1200 6th Avenue,
Seattle, WA 98101; telephone number:
206–553–1185; email address:
Chi.John@epa.gov.
SUPPLEMENTARY INFORMATION: For
further information, please see the
direct final action, of the same title,
which is located in the Rules and
Regulations section of this Federal
Register. The EPA is approving the
State’s SIP revision as a direct final rule
without prior proposal because the EPA
views this as a noncontroversial SIP
revision and anticipates no adverse
comments. A detailed rationale for the
approval is set forth in the preamble to
the direct final rule. If the EPA receives
no adverse comments, the EPA will not
take further action on this proposed
rule.
If the EPA receives adverse
comments, the EPA will withdraw the
direct final rule and it will not take
effect. The EPA will address all public
comments in a subsequent final rule
based on this proposed rule. The EPA
will not institute a second comment
period on this action. Any parties
interested in commenting on this action
should do so at this time. Please note
that if we receive adverse comment on
an amendment, paragraph, or section of
the rule and if that provision may be
severed from the remainder of the rule,
the EPA may adopt as final those
provisions of the rule that are not the
subject of an adverse comment.
Dated: June 30, 2016.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.
[FR Doc. 2016–17058 Filed 7–19–16; 8:45 am]
BILLING CODE 6560–50–P
E:\FR\FM\20JYP1.SGM
20JYP1
]]>Agencies
[Federal Register Volume 81, Number 139 (Wednesday, July 20, 2016)]
[Proposed Rules]
[Pages 47103-47114]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17056]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2016-0133, FRL-9949-33-Region 10]
Approval and Promulgation of Implementation Plans; Alaska:
Infrastructure Requirements for the 2010 Nitrogen Dioxide and 2010
Sulfur Dioxide Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: Whenever a new or revised National Ambient Air Quality
Standard (NAAQS) is promulgated, states must submit a plan for the
implementation, maintenance and enforcement of such standard, commonly
referred to as infrastructure requirements. The Environmental
Protection Agency (EPA) is proposing to approve the May 12, 2015 Alaska
State Implementation Plan (SIP) submission as meeting the
infrastructure requirements for the 2010 nitrogen dioxide
(NO2) and 2010 sulfur dioxide (SO2) NAAQS.
DATES: Comments must be received on or before August 19, 2016.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2016-0133, 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 submit
electronically 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 making effective
comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
Docket: All documents in the electronic docket are listed in the
https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other
[[Page 47104]]
information that is restricted by statute from disclosure. 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
at https://www.regulations.gov or in hard copy during normal business
hours at the Office of Air and Waste, EPA Region 10, 1200 Sixth Avenue,
Seattle, Washington 98101.
FOR FURTHER INFORMATION CONTACT: Kristin Hall at (206) 553-6357 or
hall.kristin@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, it is intended to refer to the EPA.
Table of Contents
I. Background
II. Infrastructure Elements
III. EPA Approach to Review of Infrastructure SIP Submissions
IV. EPA Evaluation
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. Background
On January 22, 2010, the EPA established a primary NO2
NAAQS at 100 parts per billion (ppb), averaged over one hour,
supplementing the existing annual standard (75 FR 6474). On June 2,
2010, the EPA promulgated a revised primary SO2 NAAQS at 75
ppb, based on a three-year average of the annual 99th percentile of
one-hour daily maximum concentrations (75 FR 35520). The Clean Air Act
(CAA) requires that states submit SIPs meeting CAA sections 110(a)(1)
and (2) within three years after promulgation of a new or revised
NAAQS. CAA sections 110(a)(1) and (2) require states to address basic
SIP elements, including but not limited to emissions inventories,
monitoring, and modeling to provide for the implementation, maintenance
and enforcement of the NAAQS, the so-called infrastructure
requirements. On September 13, 2013, the EPA issued guidance to address
the infrastructure requirements for multiple standards, including the
2010 NO2 and SO2 NAAQS.\1\
---------------------------------------------------------------------------
\1\ 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 May 12, 2015, the Alaska Department of Environmental
Conservation (ADEC) made a submission for purposes of CAA sections
110(a)(1) and (2) for the 2010 NO2 and 2010 SO2
NAAQS. We note that the submission also included revisions to Alaska's
transportation conformity regulations, approved on September 8, 2015
(80 FR 53735), and updates to general air quality and permitting
regulations, approved on May 19, 2016 (81 FR 31511).
II. Infrastructure Elements
CAA section 110(a)(1) provides the procedural and timing
requirements for SIP submissions after a new or revised standard 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 implement, maintain and enforce 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
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 document 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, are 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), nor
does it address CAA section 110(a)(2)(I). Furthermore, the EPA
interprets the CAA section 110(a)(2)(J) provision on visibility as not
triggered by a new or revised NAAQS, because the visibility
requirements in part C, title I of the CAA are not changed by a new or
revised NAAQS.
III. EPA Approach to Review of Infrastructure SIP Submissions
The EPA is acting upon the May 12, 2015, submission from Alaska
that addresses the infrastructure requirements of CAA sections
110(a)(1) and 110(a)(2) for the 2010 NO2 and 2010
SO2 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
[[Page 47105]]
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.\2\ 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 inclusion in an
infrastructure SIP submission.
---------------------------------------------------------------------------
\2\ 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.\3\
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.\4\ 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.
---------------------------------------------------------------------------
\3\ 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)).
\4\ 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.
---------------------------------------------------------------------------
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.\5\ 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.\6\
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\5\ 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 fine
particulate matter (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).
\6\ 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.\7\
---------------------------------------------------------------------------
\7\ For example, implementation of the 1997 fine particulate
matter NAAQS required the deployment of a system of new monitors to
measure ambient levels of that new indicator species for the new
NAAQS.
---------------------------------------------------------------------------
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
[[Page 47106]]
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.\8\ The
EPA most recently issued guidance for infrastructure SIPs on September
13, 2013 (2013 Guidance).\9\ 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.\10\ 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.
---------------------------------------------------------------------------
\8\ 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.
\9\ ``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.
\10\ 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), (a)(2)(D)(i)(II), and (a)(2)(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 the 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''); \11\ (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.\12\ 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
[[Page 47107]]
re-approval of any existing potentially deficient provisions that
relate to the three specific issues just described.
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\11\ Subsequent to issuing the 2013 Guidance, the EPA's
interpretation of the CAA with respect to the approvability of
affirmative defense provisions in SIPs has changed. See ``State
Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs;
Findings of Substantial Inadequacy; and SIP Calls To Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown and Malfunction,'' 80 FR 33839 (June 12, 2015). As a
result, EPA's 2013 Guidance (p. 21 & n.30) no longer represents the
EPA's view concerning the validity of affirmative defense
provisions, in light of the requirements of section 113 and section
304.
\12\ 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 or affirmative defense 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 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.\13\ Section 110(k)(6)
authorizes the EPA to correct errors in past actions, such as past
approvals of SIP submissions.\14\ 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.\15\
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\13\ 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).
\14\ 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).
\15\ 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. EPA Evaluation
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 submission cites Alaska environmental and air
quality laws set forth at Alaska Statutes (AS) Chapters 46.03
Environmental Conservation and 46.14 Air Quality Control, and
regulations set forth at 18 AAC 50 Alaska Administrative Code Title 18
Environmental Conservation, Chapter 50 Air Quality Control (18 AAC 50).
The relevant regulations are listed below:
18 AAC 50.010: Ambient Air Quality Standards.
18 AAC 50.015: Air Quality Designations, Classifications,
and Control Regions.
18 AAC 50.040: Federal Standards Adopted by Reference.
18 AAC 50.055: Industrial Processes and Fuel Burning
Equipment.
18 AAC 50.060: Pulp Mills.
18 AAC 50.260: Guidelines for Best Available Retrofit
Technology Under the Regional Haze Rule.
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 Chapter 53 Fuel Requirements for Motor Vehicles.
EPA analysis: On September 19, 2014, the EPA approved numerous
revisions to the Alaska SIP, including updates to 18 AAC 50.010 Ambient
Air Quality Standards to reflect revisions to the NAAQS, including the
2010 NO2 and the 2010 SO2 NAAQS (79 FR 56268). In
addition, the EPA recently approved updates to a number of regulations
in 18 AAC 50 on May 19, 2016 (81 FR 31511).
Alaska generally regulates emissions of NO2, and
SO2 through its SIP-approved major and minor new source
review (NSR) permitting programs, in addition to other rules described
below. We note that there are no areas in Alaska currently designated
nonattainment for the 2010 NO2 NAAQS or the 2010
SO2 NAAQS, and that the EPA has not yet completed
designations for the 2010 SO2 NAAQS. However, 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 for attainment and unclassifiable areas
[[Page 47108]]
generally incorporates certain Federal PSD program regulations by
reference into the Alaska SIP. The EPA most recently approved revisions
to Alaska's PSD permitting program on May 19, 2016 (81 FR 31511). The
current Alaska SIP-approved PSD permitting program incorporates by
reference specific regulations at 40 CFR 52.21 and 40 CFR 51.166 as of
December 9, 2013.
With respect to Alaska's minor NSR permitting program, we have
determined that the program regulates minor sources of NO2
and SO2. In addition, Alaska's SIP contains rules that
establish controls to limit combustion-generated pollutants. These
controls include incinerator emission standards, emission limits for
specific industrial processes and fuel burning equipment, emission
limits for pulp mills, visible emission limits on marine vessel
emissions, and fuel requirements for motor vehicles. 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 2010 NO2
and 2010 SO2 NAAQS.
In this action, we are not proposing to approve or disapprove any
existing Alaska provisions with respect 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 and the EPA is
addressing such state regulations in a separate action.\16\ 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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\16\ The EPA issued a final action titled ``State Implementation
Plans: Response to Petition for Rulemaking; Restatement and Update
of EPA's SSM Policy Applicable to SIPs; Findings of Substantial
Inadequacy; and SIP Calls to Amend Provisions Applying to Excess
Emissions During Periods of Startup, Shutdown and Malfunction: Final
Rule.'' This rulemaking responds to a petition for rulemaking filed
by the Sierra Club that concerns SSM provisions in 39 states' SIPs
(June 12, 2015, 80 FR 33840).
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In addition, we are not proposing to approve or disapprove any
existing Alaska 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
(e.g., November 24, 1987, 52 FR 45109), and the EPA plans to take
action in the future to address such state regulations through
appropriate statutory mechanisms. 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 the 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 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 references ADEC's revised Quality Assurance Project
Plan for the State of Alaska Air Monitoring and Quality Assurance
Program as amended through February 23, 2010. This document is adopted
by reference into the State Air Quality Control Plan at 18 AAC
50.030(4). Validated State & Local Air Monitoring Stations, and Special
Purpose Monitoring ambient air quality monitoring data are verified,
and then electronically reported to the EPA through the Air Quality
System on a quarterly basis.
The submission also references 18 AAC 50.035 Documents, Procedures,
and Methods Adopted by Reference which include the most current,
Federal reference and interpretation methods for NO2 and
SO2. These methods are used by ADEC in its ambient air
quality monitoring program to determine compliance with the standards.
The submission cites the regulatory requirements related to monitoring
found at 18 AAC 50.201 Ambient Air Quality Investigation, 18 AAC 50.215
Ambient Air Quality Analysis Methods, and 18 AAC 50.220 Enforceable
Test Methods.
EPA analysis: A comprehensive air quality monitoring plan, intended
to meet the 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 October 28, 2015. The plan includes
the implementation of NO2 and SO2 monitoring as
required in 40 CFR part 58. We are proposing to approve the Alaska SIP
as meeting the requirements of CAA section 110(a)(2)(B) for the 2010
NO2 and 2010 SO2 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 submission references 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 50.020: Baseline Dates and Maximum Allowable
Increases.
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 50.110: Air Pollution Prohibited.
18 AAC 50.215: Ambient Air Quality Analysis Methods.
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 50.502: Minor Permits for Air Quality Protection.
18 AAC 50.508: Minor Permits Requested by the Owner or
Operator.
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, the
submission refers to regulations pertaining to compliance orders and
enforcement proceedings found at 18 AAC Chapter 95 Administrative
Enforcement.
EPA analysis: With respect to the requirement to have a program
providing for enforcement of all SIP
[[Page 47109]]
measures, we are proposing to find that Alaska statute provides ADEC
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 2010 NO2 and 2010 SO2 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, states are required to have PSD, nonattainment NSR, and minor
NSR permitting programs adequate to implement the 2010 NO2
and 2010 SO2 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 most recently approved revisions to Alaska's PSD program on
May 19, 2016 (81 FR 31511). Alaska's SIP-approved PSD program
incorporates by reference certain 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. The Alaska PSD
program incorporates by reference Federal PSD requirements at 40 CFR
52.21 and 40 CFR 51.166 revised as of December 9, 2013.
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 has a PSD program in
place that covers all regulated NSR pollutants, including greenhouse
gas (GHG) emissions. As discussed below, we are proposing to approve
the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(C),
(D)(i)(II) and (J) with respect to PSD.
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, our 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 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 recently revised federal PSD rules in light of the Supreme
Court decision (May 7, 2015, 80 FR 26183). In addition, we anticipate
that many states will revise their existing SIP-approved PSD programs
in light of the Supreme Court's decision. We do not expect that all
states have revised their existing PSD program regulations yet,
however, we are evaluating submitted PSD program revision to ensure
that the state's program correctly addresses GHGs, consistent with the
Court's decision.
At present, the EPA has determined the Alaska SIP is sufficient to
satisfy CAA section 110(a)(2)(C), (a)(2)(D)(i)(II) and (a)(2)(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.
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 our proposed approval of the Alaska SIP as
meeting the requirements of CAA section 110(a)(2)(C), (a)(2)(D)(i)(II)
and (a)(2)(J) as those elements relate to a comprehensive PSD program.
Turning to the minor NSR requirement, we have determined that
[[Page 47110]]
the Alaska Federally-approved minor NSR rules regulate minor sources
for purposes of the 2010 NO2 and 2010 SO2 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 2010
NO2 and 2010 SO2 NAAQS.
110(a)(2)(D)(i): 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)).
We note that Alaska's May 12, 2015, submission does not address the
requirements of 110(a)(2)(D)(i)(I) for the 2010 NO2 and 2010
SO2 NAAQS. ADEC has addressed these requirements in a
separate submission, and we intend to evaluate them in a future action.
In this action, we are proposing to approve the Alaska SIP as meeting
the requirements of CAA section 110(a)(2)(D)(i)(II) and
110(a)(2)(D)(ii) for the 2010 NO2 and 2010 SO2
NAAQS.
State submission: For purposes of CAA section 110(a)(2)(D)(i)(II),
the submission references the Alaska SIP-approved PSD program and the
Alaska Regional Haze Plan.
EPA analysis: 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 submissions referenced the Alaska
Federally-approved PSD program. As discussed above, Alaska's SIP-
approved PSD program last revised on May 19, 2016, currently
incorporates by reference Federal PSD requirements as of December 9,
2013 (81 FR 31511). We are therefore 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 2010 NO2 and 2010
SO2 NAAQS.
To address whether emissions from sources in Alaska interfere with
any other state's required measures to protect visibility, the
submission references 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 2013 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 requirements of CAA
section 110(a)(2)(D)(i)(II) as it applies to visibility for the 2010
NO2 and 2010 SO2 NAAQS (prong 4).
110(a)(2)(D)(ii): Interstate and International Transport Provisions
CAA section 110(a)(2)(D)(ii) requires SIPs to include provisions
ensuring 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 submission references Alaska's Federally-
approved PSD program and revisions to the SIP submitted by ADEC to
update the Alaska PSD program.
EPA analysis: At 18 AAC 50.306(b), Alaska's PSD program
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
Federal 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 2010 NO2 and 2010 SO2
NAAQS.
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 submission asserts 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. The ADEC commissioner, however, 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 publically 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: https://doe.alaska.gov/apoc/home.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
[[Page 47111]]
regional government agencies, the submission references statutory
authority and requirements for establishing local air pollution control
programs 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 local agencies 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 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). Finally, we are proposing to find that Alaska
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 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 2010
NO2 and 2010 SO2 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 reports shall be available at reasonable times for public
inspection.
State submission: The submission states that ADEC has general
statutory authority in AS 46.14 Air Quality Control 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 (18 AAC 50.200) and ambient air
quality investigations (18 AAC 50.201). Monitoring protocols and test
methods for stationary sources are adopted by reference, including the
Federal reference and interpretation methods for NO2 and
SO2. The submission also references the SIP-approved Alaska
PSD program. 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 50.010: Ambient Air Quality Standards.
18 AAC 50.030: State Air Quality Control Plan.
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 50.544: Minor Permits: Content.
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, states are 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 https://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 2010 NO2 and 2010 SO2 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 submission cites statutory authority
including 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
[[Page 47112]]
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 to 18 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.
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 for
NO2 and SO2 (prevention of air pollution
emergency episodes, Sec. Sec. 51.150 through 51.153). Specifically, 40
CFR 51.150 through 51.153 prescribes the requirements for emergency
episode plans based on classification of regions in a state. As listed
in 40 CFR 52.71 Classification of Regions, all regions in Alaska are
classified Priority III for both NO2 and SO2.
Areas classified Priority III do not need to develop episode plans
under 40 CFR 51.150 through 51.153.
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 2010
NO2 and 2010 SO2 NAAQS.
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 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 updates 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. We have approved revisions to the Alaska SIP on
numerous occasions in the past, most recently on May 19, 2016 (81 FR
31511), March 18, 2015 (80 FR 14038), September 19, 2014 (79 FR 56268),
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 2010 NO2
and 2010 SO2 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 2-5 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 with
respect to 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 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 SIP-approved Alaska PSD
program.
EPA analysis: The EPA finds that the Alaska SIP, including the
Alaska rules for major source permitting, contains provisions for
consulting with government officials as specified in CAA section 121.
Alaska's PSD program provides opportunity and procedures for public
comment and notice to appropriate Federal, state and local agencies. We
most recently approved revisions to the Alaska PSD program on May 19,
2016 (81 FR 31511). In addition, the EPA most recently approved the
Alaska rules that define transportation conformity consultation on
September 8, 2015 (80 FR 53735). 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 2010 NO2 and
2010 SO2 NAAQS.
[[Page 47113]]
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, SO2, and NO2. Alaska also provides
real-time air monitoring information to the public on the ADEC air
quality Web site at https://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 at https://co.fairbanks.ak.us/airquality/. We are
proposing to approve the Alaska SIP as meeting the requirements of CAA
section 110(a)(2)(J) for public notification for the 2010
NO2 and 2010 SO2 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 most recently approved
revisions to Alaska's PSD program on May 19, 2016 (81 FR 31511). We are
proposing to approve the Alaska SIP as meeting the requirements of CAA
section 110(a)(2)(J) for PSD for the 2010 NO2 and 2010
SO2 NAAQS. We note 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 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 2010 NO2 and 2010 SO2 NAAQS.
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 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 are
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 19, 2016, we approved revisions to 18 AAC
50.215 Ambient Air Quality Analysis Methods and 18 AAC 50.040 Federal
Standards Adopted by Reference (81 FR 31511). 18 AAC 50.040, at
paragraph (f), incorporates by reference the EPA regulations at 40 CFR
part 51, Appendix W Guidelines on Air Quality Models revised as of July
1, 2013.
Based on the foregoing, we are proposing to approve the Alaska SIP
as meeting the requirements of CAA section 110(a)(2)(K) for the 2010
NO2 and 2010 SO2 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 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 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).
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 new source 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 2010 NO2 and 2010
SO2 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 submission states 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. The submission refers to AS 46.030.020
Powers of the department paragraphs (3) and (8) which provide 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 section 110(a)(2)(M)
for the 2010 NO2 and 2010 SO2 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 2010
NO2 and 2010 SO2 NAAQS: (A), (B), (C),
(D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M).
[[Page 47114]]
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 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, 2011);
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, 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, Lead, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 21, 2016.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2016-17056 Filed 7-19-16; 8:45 am]
BILLING CODE 6560-50-P
