Air Plan Partial Approval and Partial Disapproval; AK, Fairbanks North Star Borough; 2006 24-Hour PM2.5 Serious Area and 189(d) Plan, 84626-84676 [2023-26521]
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Federal Register / Vol. 88, No. 232 / Tuesday, December 5, 2023 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R10–OAR–2022–0115; FRL–9755–02–
R10]
Air Plan Partial Approval and Partial
Disapproval; AK, Fairbanks North Star
Borough; 2006 24-Hour PM2.5 Serious
Area and 189(d) Plan
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving in part and
disapproving in part the State
implementation plan (SIP) submissions,
submitted by the State of Alaska (Alaska
or the State) to address Clean Air Act
(CAA or Act) requirements for the 2006
24-hour fine particulate matter (PM2.5)
national ambient air quality standard
(NAAQS) in the Fairbanks North Star
Borough PM2.5 nonattainment area
(Fairbanks PM2.5 Nonattainment Area).
Alaska made these submissions on
December 13, 2019, and December 15,
2020.
DATES: This final rule is effective on
January 4, 2024.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–R10–OAR–2022–0115. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available through https://
www.regulations.gov, or please contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section for
additional availability information.
FOR FURTHER INFORMATION CONTACT:
Matthew Jentgen, EPA Region 10, 1200
Sixth Avenue—Suite 155, Seattle, WA,
98101, (206) 553–0340,
jentgen.matthew@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, it is
intended to refer to EPA.
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SUMMARY:
Table of Contents
I. Background
II. Public Comments and EPA Responses
A. Timing of the EPA’s Rulemaking
B. Environmental Justice Considerations
C. Air Quality Monitoring in the Fairbanks
PM2.5 Nonattainment Area
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D. Clean Air Act Requirements for PM2.5
Serious Area Plans and Serious PM2.5
Areas that Fail to Attain
E. Review of the Fairbanks Serious Plan
and Fairbanks 189(d) Plan
1. Emission Inventories
2. Pollutants Addressed
3. Control Strategy
4. Attainment Demonstration and
Modeling
5. Reasonable Further Progress
6. Quantitative Milestones
7. Contingency Measures
8. Motor Vehicle Emissions Budgets for
Transportation Conformity
9. Nonattainment New Source Review
Requirements
10. Additional Comments
III. Final Action
A. Final Approval
B. Final Disapproval
IV. Consequences of a Disapproval
A. The Act’s Provisions for Mandatory
Sanctions
B. Federal Implementation Plan Provisions
That Apply if a State Fails to Submit an
Approvable Plan
C. Ramifications Regarding Transportation
Conformity
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132, Federalism
F. Executive Order 13175, Coordination
With Indian Tribal Governments
G. Executive Order 13045, Protection of
Children From Environmental Health
Risks and Safety Risks
H. Executive Order 13211, Actions That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act
J. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Population
K. Submission to Congress and the
Comptroller General
L. Petitions for Judicial Review
I. Background
For a complete regulatory history of
the Fairbanks PM2.5 Nonattainment
Area, see the EPA’s proposal, published
on January 10, 2023 (88 FR 1454)
(Proposal). This action finalizes the
EPA’s specific assessment of the State of
Alaska’s SIP submissions to meet
nonattainment plan requirements for the
Fairbanks PM2.5 Nonattainment Area, as
discussed in the Proposal.
In summary, Alaska submitted a plan
to address the Serious area plan
requirements on December 13, 2019
(Fairbanks Serious Plan). On September
2, 2020, the EPA determined that the
area failed to attain the NAAQS by the
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outermost statutory Serious area
attainment date of December 31, 2019,
and denied the State’s Serious area
attainment date extension request under
CAA section 188(e) (85 FR 54509). As a
result, Alaska was required to submit a
new SIP submission to meet both the
Serious area attainment plan
requirements and the additional CAA
requirements set forth in CAA section
189(d) by December 31, 2020.1
Prior to the EPA taking action to
approve or disapprove the Fairbanks
Serious Plan, Alaska withdrew and
replaced several chapters of the
Fairbanks Serious Plan with the
Fairbanks 189(d) Plan submission,
submitted on December 15, 2020
(Fairbanks 189(d) Plan).2 Thus, the State
intended to address the Serious area
plan requirements with a combination
of unwithdrawn portions of the
Fairbanks Serious Plan and revised
elements submitted as part of the
Fairbanks 189(d) Plan. In this final
action, the EPA is not acting on the
withdrawn elements of the prior
Fairbanks Serious Plan, but only acting
on those elements that remain as revised
by Alaska in the Fairbanks 189(d) Plan.
Additionally, on September 25, 2023,
Alaska withdrew the State’s sulfur
dioxide (SO2) best available control
technology (BACT) findings submitted
as part of the Fairbanks Serious Plan.3
In the Proposal, the EPA proposed to
approve the following components of
the Fairbanks Serious Plan and
Fairbanks 189(d) Plan: the base year
emissions inventory; the State’s PM2.5
precursor demonstrations for nitrogen
oxide (NOX) and volatile organic
compound (VOC) emissions; the control
strategy for the solid fuel-fired heating
device source category and ammonia
(NH3) BACM and BACT findings, as
applicable; specific regulations under 18
AAC 50.075 through 077 and the
Fairbanks Emergency Episode Plan 4
1 40
CFR 51.1003(c).
SIP submission cover letter, submitted by
Alaska Department of Environmental Conservation
(ADEC) Commissioner Jason Brune to EPA Regional
Administrator, Chris Hladick, on December 15,
2020.
3 ‘‘Fairbanks SIP submissions for the Serious area
and 189(d) plans’’ Letter from Emma Pokon, Acting
Commissioner, Alaska Department of
Environmental Conservation, to Casey Sixkiller,
Regional Administrator, EPA Region 10, September
25, 2023. Included in the docket for this action.
4 State Air Quality Control Plan, Vol. II, Chapter
III.D.7.12. This portion of Alaska’s SIP is distinct
from Alaska’s emergency powers under Alaska
Statutes 46.03.820 and 18 AAC 50.245–50.246 that
authorize ADEC to declare an air alert, air warning,
or air advisory to notify the public and prescribe
and publicize curtailment action. In prior actions,
the EPA has determined that these authorities are
consistent with CAA section 110(a)(2)(G) and 40
CFR 51.150 through 51.153. See 83 FR 60769,
November 27, 2018, at p. 60772.
2 See
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(except for the contingency measure
provision).
The EPA proposed disapproval of the
following elements of the Fairbanks
Serious Plan and the Fairbanks 189(d)
Plan as not meeting applicable
requirements for Serious area plan
requirements and CAA section 189(d)
plan requirements: attainment projected
emissions inventory; best available
control measure (BACM) requirements
for residential and commercial fuel
combustion, wood sellers; coal-fired
heating devices, coffee roasters,
charbroilers, used oil burners,
weatherization and energy efficiency
measures, and mobile source emissions.
The EPA proposed disapproval of most
of the control strategy BACT
requirements for certain large stationary
sources in the Fairbanks PM2.5
Nonattainment Area. Additionally, the
EPA proposed disapproval of the
Fairbanks Serious Plan and Fairbanks
189(d) Plan for not meeting the
remaining nonattainment planning
elements: the CAA section 189(d)
requirement to analyze additional
measures (beyond those already adopted
in previous nonattainment plan SIP
submissions for the area as reasonably
available control measure/technology
(RACM/RACT), BACM/BACT, and Most
Stringent Measures (MSM)); 5
attainment demonstration and
modeling; reasonable further progress;
motor vehicle emission budgets;
quantitative milestones; and
contingency measures.
Section II of this preamble
summarizes comments received during
the public comment period for the
Proposal and provides the EPA’s
responses. With respect to most
planning requirements, the EPA is
finalizing approval and disapproval of
the Fairbanks Serious Plan and
Fairbanks 189(d) Plan as proposed.
However, based on the comments
received, the EPA is finalizing approval
of certain portions of the Fairbanks
Serious Plan and Fairbanks 189(d) Plan
that it originally proposed to
disapprove. Specifically, the EPA is
finalizing approval of Alaska’s
economic infeasibility demonstrations
for a number of area sources identified
in Alaska’s 2019 base year emission
inventory. Alaska’s economic
infeasibility demonstration provided
updated cost information and additional
considerations for a number of control
5 MSM is applicable if the EPA has previously
granted an extension of the attainment date under
CAA section 188(e) for the nonattainment area and
NAAQS at issue. As mentioned above, the EPA
denied Alaska’s request to extend the Serious area
attainment date for the Fairbanks Serious
Nonattainment Area.
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measures. Based on these comments, we
are finalizing approval for residential
and commercial fuel oil combustion,
charbroilers, used oil burners, and most
of the measures for mobile sources. This
means the EPA is approving Alaska’s
evaluation that ULSD adoption for
residential and commercial fuel oil
combustion is not economically feasible
at this time and that Alaska will not
have to adopt additional controls for
these emission sources to satisfy the
control strategy requirements for
Serious areas and Serious areas that fail
to attain.6
The EPA will work with the State of
Alaska to address those portions of the
Fairbanks Serious Plan and Fairbanks
189(d) Plan that the EPA is
disapproving in this action. Alaska may
rectify each of these disapprovals with
a revised SIP submission. The EPA
understands that the State is developing
a revised SIP submission to address the
plan deficiencies that are identified in
section III of this preamble. Specifically,
with this new SIP submission, the EPA
anticipates Alaska will identify, adopt,
and implement all feasible control
measures and ensure that such control
measures are adopted and submitted in
a manner that is enforceable as a
practical matter and permanent.
The EPA also understands that the
State is nearing completion of an
updated air quality model that may
better characterize particulate emissions
in the Fairbanks PM2.5 Nonattainment
Area. Given this development, Alaska
may potentially address the EPA’s
disapproval of the Fairbanks Serious
Plan and Fairbanks 189(d) Plan for
failure to adopt and implement SO2
BACT requirements for major stationary
sources though either identifying,
adopting, and implementing BACT for
the control of SO2 emissions from these
sources or a major stationary source SO2
precursor demonstration that meets
statutory and regulatory requirements
and clearly demonstrates these sources
do not contribute significantly to PM2.5
levels that exceed the NAAQS in the
Fairbanks PM2.5 Nonattainment Area.
The State may also update its
modeled attainment demonstration,
reasonable further progress provisions,
quantitative milestones, and attainment
projected inventories. Finally, the State
will need to evaluate and adopt
adequate contingency measures.
6 We note that while we are approving most of
Alaska’s analysis for mobile sources, Alaska will
need to further evaluate, and adopt and implement
as necessary, light-duty vehicle anti-idling
measures to meet CAA requirements.
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II. Public Comments and EPA
Responses
The EPA provided a 72-day period for
the public to comment on the proposed
action that ended on March 23, 2023.
We received 164 public comments.7 The
public comments are included in the
docket for this action. On March 7,
2023, the EPA held a public hearing in
Fairbanks, Alaska, at the Wood Center,
University of Alaska Fairbanks.
Comments received at the public
hearing have been treated the same as
written comments submitted to the
docket and are summarized in this
section II of the preamble. The
transcript for the March 7, 2023, public
hearing is also included in the docket
for this action. Additionally, on April
17, 2023, EPA Region 10 Regional
Administrator Sixkiller engaged in
consultation with Doyon, Limited as an
Alaska Native Corporation under the
Alaska Native Claims Settlement Act
(ANCSA) on the Proposal.8 Separately,
Doyon, Limited provided comments
during the public hearing.
A. Timing of the EPA’s Rulemaking
The State of Alaska submitted the
Fairbanks Serious Plan on December 13,
2019. On January 10, 2020, the EPA
made a finding that this submission was
administratively complete.9 Alaska
subsequently submitted the Fairbanks
189(d) Plan on December 15, 2020. That
submission was deemed complete by
operation of law on June 15, 2021.
Therefore, in accordance with CAA
section 110(k)(2), the EPA’s statutory
deadlines to act on the Fairbanks
Serious Plan and Fairbanks 189(d) Plan
were January 10, 2021, and June 15,
2022, respectively. In order to satisfy its
mandatory duties under the CAA, the
EPA proposed action on both the
Fairbanks Serious Plan and Fairbanks
189(d) Plan on January 10, 2023. After
holding a public hearing on March 7,
2023, accepting written comments, and
considering said comments, the EPA is
finalizing action on these plans.
Comments: The EPA received several
comments requesting that it delay
finalizing action on the Fairbanks
Serious Plan and Fairbanks 189(d) Plan.
The primary basis for the request was to
allow Alaska to complete modeling
work necessary to support a future SO2
precursor demonstration for major
7 The EPA received 61 comments as part of oral
testimony provided during EPA’s March 7, 2023,
public hearing and 103 comments as part of written
testimony submitted to the docket.
8 Letter from Region 10 Regional Administrator
Casey Sixkiller to Aaron Schutt, President and CEO
of Doyon, Limited, March 30, 2023. Included in the
docket for this action.
9 85 FR 7760, February 11, 2020.
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stationary sources. Many of the
commenters presumed that the outcome
of the precursor demonstration would
show that SO2 emissions from major
stationary sources is not a significant
contributor to PM2.5 formation in the
Fairbanks 2006 PM2.5 Nonattainment
Area. Other commenters stated
generally that the EPA should avoid
hasty decisions.
In its comments submitted during the
public comment period, Alaska
represented that it would complete the
necessary modeling work and submit a
revised SIP submission to the EPA by
May 1, 2024. After the close of the
public comment period, Alaska
submitted additional comments via
letter requesting an additional year from
the date of the letter—until July 24,
2024—for Alaska to submit a revised
SIP submission. In the latter letter,
Alaska enclosed Regional Applied
Research Effort (RARE) 10 meeting notes
that include preliminary modeling
results for the Fairbanks PM2.5
Nonattainment Area based on
continuing analysis of sulfate formation
in the area. Alaska asserted that these
preliminary modeling results indicate
that major point sources of SO2
emissions do not significantly
contribute to particulate matter
pollution during winter-time episodic
conditions in the area. Alaska further
asserted that the EPA has the discretion
and authority to grant the State an
additional year from July 24, 2023, to
provide a revised SIP submission before
taking final action on the already
submitted Fairbanks Serious Plan and
Fairbanks 189(d) Plan.
Response: Consistent with its
obligations in CAA section 110(k)(2) to
act on SIP submissions, the EPA is
finalizing action on the Fairbanks
Serious Plan and Fairbanks 189(d) Plan
in this action. By statute, the EPA is
required to take final action within one
year of a SIP submission being complete
or complete by operation of law. The
EPA has already delayed action well
past the deadlines imposed by the CAA.
Thus, further delay would not be
consistent with these requirements.
Contrary to Alaska’s comments, the EPA
does not have generic authority to
modify the CAA deadlines that pertain
to when States must submit SIP
submissions, or to when the EPA must
take action on such SIP submissions.
Nor does the EPA have the authority to
postpone the statutory deadline for the
imposition of mandatory sanctions
10 EPA’s Regional Applied Research Effort (RARE)
is an Office of Research and Development (ORD)
program administered by the Office of Science
Policy (OSP) that responds to the high-priority
research needs of EPA Regions.
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under CAA section 179, or its obligation
to promulgate a Federal Implementation
Plan pursuant to CAA section 110(c).
The CAA establishes a process for
States to rectify SIP disapprovals via a
new SIP submission.11 The CAA does
not impose a mandatory deadline for
States to make a new SIP submission in
response to an EPA disapproval. Rather,
the CAA imposes mandatory sanctions
on the State at 18 and 24 months
following the effective date of the EPA’s
disapproval, and an obligation on the
EPA to promulgate a FIP within two
years of the effective date of such
disapproval. To avoid the potential for
mandatory sanctions and a FIP, Alaska
should follow this process to make a
timely corrective SIP submission to
address the portions of the Fairbanks
Serious Plan and Fairbanks 189(d) Plan
that the EPA is disapproving. Alaska
may include an optional SO2 precursor
demonstration in this SIP submission, if
it provides a valid basis to establish that
SO2 emissions from either all sources or
major stationary sources do not
significantly contribute to PM2.5
formation.
As discussed further in the following
sections of this preamble, the EPA will
review any future SO2 precursor
demonstration based on the statutory
and regulatory requirements and EPA
guidance. The EPA emphasizes that the
Agency will review the entire weight-ofevidence of any precursor
demonstration, not only the outputs of
any particular air quality model.
Moreover, delaying action on a SIP
submission based on an anticipated
future SIP submission that may or may
not address identified SIP deficiencies
would be arbitrary and inconsistent
with the CAA’s mandatory
requirements.
The commenters advocating further
delay of this final action, appeared to
suggest that if the EPA finds that any
portion of a SIP submission does not
meet CAA requirements, then the EPA
must delay fulfilling its statutory
obligation in order to allow a State to
revise the SIP submission, rather than
act on the SIP submission. The EPA
does not interpret the CAA as requiring
this approach. Rather, the CAA requires
the EPA to approve or disapprove a SIP
submission within 12 months of the
date on which it is complete.12 To the
extent that a State seeks to revise its
approach in a SIP submission following
a disapproval, it may do so consistent
with the process and schedule provided
for in CAA sections 179(a) and
11 CAA section 110(k)–(l) and 179. 40 CFR part
51, subpart F.
12 CAA section 110(k)(2), 42 U.S.C. 7410(k)(2).
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110(c)(1). Thus, the EPA is satisfying its
CAA obligation to take action on the
Fairbanks Serious Plan and Fairbanks
189(d) Plan.
B. Environmental Justice Considerations
Executive Order 12898 (59 FR 7629,
February 16, 1994) requires that Federal
agencies, to the greatest extent
practicable and permitted by law,
identify and address disproportionately
high and adverse human health or
environmental effects of their actions on
minority and low-income populations.
Additionally, Executive Order 13985 (86
FR 7009, January 25, 2021) directs
Federal government agencies to assess
whether, and to what extent, their
programs and policies perpetuate
systemic barriers to opportunities and
benefits for people of color and other
underserved groups, and Executive
Order 14008 (86 FR 7619, February 1,
2021) directs Federal agencies to
develop programs, policies, and
activities to address the
disproportionate health, environmental,
economic, and climate impacts on
disadvantaged communities.
In the Proposal, the EPA provided the
results of a screening-level analysis
using the EPA’s environmental justice
(EJ) screening and mapping tool
(‘‘EJSCREEN’’).13 The purpose of
conducting this analysis and sharing the
results was to provide information and
context. The EPA did not base the
proposed action nor this final action on
environmental justice considerations.
Rather, the EPA based the proposed
action and this final action on a
determination of whether the Fairbanks
Serious Plan and Fairbanks 189(d) Plan
meet applicable CAA requirements.
The EPA noted in the Proposal that
the Fairbanks PM2.5 Nonattainment Area
has some of the highest PM2.5
concentrations in the country and has
been designated nonattainment for the
2006 24-hour PM2.5 NAAQS since 2009.
Residents in Fairbanks and North Pole
have been subjected to a high pollution
burden for many years. Other health and
socioeconomic indices, identified in
EJSCREEN, that are impacted by
elevated ambient PM2.5 concentrations
include: low life expectancy (95–100
percentile) and asthma (90–95
percentile) in an area south of
downtown Fairbanks, and population
under age 5 (95–100 percentile) in
various areas within the Fairbanks PM2.5
Nonattainment Area. Most of Alaska,
13 88 FR 1454, January 10, 2023, at pp.1455–1456.
EJSCREEN provides a nationally consistent dataset
and approach for combining environmental and
demographic indicators. EJSCREEN is available at
https://www.epa.gov/ejscreen/what-ejscreen.
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including the Fairbanks area, is
considered ‘‘medically underserved.’’ 14
A review of other environmental
justice indices in EJSCREEN for the
cities of Fairbanks, Alaska and North
Pole, Alaska are below the 80th
percentile, with some areas around
downtown Fairbanks in the 80–90th
percentile for the following indices:
Superfund proximity, Hazardous waste
proximity, and Underground storage
tanks. No indices are above the 90th
percentile for the Fairbanks PM2.5
Nonattainment Area. EJSCREEN reports
for Fairbanks and North Pole are
included in the docket for this action.
The EPA noted in the Proposal that
Alaska’s expeditious submission of a
new SIP to correct the deficiencies
identified in this final action will ensure
the plan meets CAA requirements and
achieve attainment as expeditiously as
practicable, consistent with the
principles of environmental justice.
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1. Comments and Responses
The EPA received multiple comments
regarding environmental justice
considerations.
Comment: Alaska argued that the EPA
proposed to improperly shift the burden
of addressing environmental justice
from the EPA to the State of Alaska and
that the EPA’s proposed disapproval of
certain elements of the Fairbanks
Serious Plan and Fairbanks 189(d) Plan
is inconsistent with the principles of
environmental justice. As support,
Alaska quoted from the EPA’s statement
in the proposed action: ‘‘Alaska’s
expeditious submission of plan
revisions that correct the deficiencies
identified in this document will ensure
the plan meets CAA requirements, and
the measures in the plan when
implemented achieves attainment as
expeditiously as practicable. And in
doing so, the plan revisions address
harmful and disproportionate health
and environmental effects on
underserved and overburdened
populations, consistent with the
principles of environmental justice.’’
Alaska also stated that Fairbanks
residents already face severe economic
challenges including utility costs,
transportation, healthcare, internet
connectivity, and food and that
adopting and implementing additional
control measures will exacerbate these
challenges. The commenter stated that
the EPA ignored the economic
14 Medically Underserved Areas are defined by
the Health Resources and Services Administration
as geographic areas with a lack of access to primary
care services. For more information see: https://
bhw.hrsa.gov/workforce-shortage-areas/shortagedesignation#mups.
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challenges faced by Fairbanks residents
in its proposed rule.
Response: The EPA is finalizing
action on the Fairbanks Serious Plan
and Fairbanks 189(d) Plan based on a
determination of whether these plans
meet applicable CAA requirements. The
EPA did not propose to disapprove any
portion of the Fairbanks Serious Plan
and Fairbanks 189(d) Plan based on
environmental justice considerations.
The EPA clearly articulated that it was
proposing to disapprove certain
portions of the SIP submissions because
of specifically identified deficiencies
with respect to CAA requirements.
In the Proposal the EPA did, however,
provide factual information concerning
environmental justice concerns in the
Fairbanks PM2.5 Nonattainment Area as
part of its own evaluation.15 The EPA
provided the results of EJSCREEN and
evaluated the impacts of finalizing its
proposal for informational purposes
only. The EPA expressly stated that it
did so ‘‘to better understand the context
of our proposed action on the Fairbanks
Serious Plan and Fairbanks 189(d) Plan
on these communities.’’ 16 Thus, the
EPA disagrees with Alaska that it
proposed to transfer the EPA’s
obligations under Executive Order
12898 to the State. Executive Order
12898 does not impose any such
obligations on the State of Alaska.
Alaska does, however, have the
obligation to develop and submit
implementation plans for the Fairbanks
2006 24-hour PM2.5 Nonattainment Area
that meet CAA requirements. In the
Proposal, the EPA observed that the
State doing so will reduce air pollution
in the nonattainment area and thus
reduce the burden on Fairbanks
residents who experience some of the
worst air pollution in the country.
The EPA also disagrees with Alaska
that it ignored the economic challenges
faced by Fairbanks residents in its
proposed action. On the contrary, the
EPA’s proposed action and this final
action, particularly with regards to the
adequacy of the control strategy, was
based on a thorough review of the
technological and economic infeasibility
of specific measures. In many cases, the
EPA is finalizing approval of Alaska’s
rejection of certain control measures
based in part on Alaska’s
demonstrations that the measures are
infeasible due either to local
15 See, e.g., 88 FR 1454, January 10, 2023, at p.
1455 (‘‘Executive Order 12898 . . . requires that
Federal agencies, the greatest extent practicable and
permitted by law, identify and address
disproportionately high and adverse human health
or environmental effects of their actions.’’).
16 88 FR 1454, January 10, 2023, at pp. 1455–
1456.
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84629
circumstances or cost. Nevertheless, the
State also oversimplifies this issue by
claiming that the cost of imposing
controls as required by the CAA to
achieve actual attainment of the NAAQS
in the Fairbanks PM2.5 Nonattainment
Area necessarily outweighs any public
health benefits from such controls. The
ongoing nonattainment of the NAAQS
in the area likewise imposes costs, as
measured in adverse public health
impacts due to exposure to air
pollution.
Comment: The EPA also received
comments from environmental
organizations representing citizens in
the Fairbanks PM2.5 Nonattainment Area
concerning environmental justice
issues. The commenter advocated that
‘‘all possible measures should be taken
to reduce and eliminate exposures.’’ In
particular, the commenter asserted that
there should be additional Federal
Reference Method (FRM) monitors in
the area, as well as additional monitors
near schools, elder care facilities, and
hospitals to assess impacts on
vulnerable communities. The
commenter asked that regulators give
attention to cumulative impacts from
exposure in the area, such as from coal
ash and per-and polyfluoroalkyl
substances (PFAS) in drinking water.
Finally, the commenter expressed
concern that ‘‘without the intervention
of the EPA and Federal regulators, those
who already bear a disproportionate
burden will continue to experience the
worst outcomes due to Alaska’s inaction
on this issue.’’
Response: The EPA agrees with the
commenter that there are environmental
justice concerns in the Fairbanks PM2.5
Nonattainment Area, as evidenced by
facts indicated by the EJSCREEN
analysis, such as the prevalence of
asthma and life expectancy. The EPA
anticipates that compliance with CAA
requirements for nonattainment plans
should result in improvements for
purposes of environmental justice in
this area. As explained in the preceding
paragraphs of this preamble, however,
the EPA discussed environmental
justice impacts of this action in the
Proposal for informational purposes
only. The EPA’s final action, with
respect to both approvals and
disapprovals, is based on the Agency’s
evaluation of the Fairbanks Serious Plan
and Fairbanks 189(d) Plan with respect
to applicable CAA requirements. The
EPA will address the commenters
specific concerns with respect to
monitoring in the area in section II.C. of
this preamble.
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C. Air Quality Monitoring in the
Fairbanks PM2.5 Nonattainment Area
In the Proposal we described Alaska’s
air quality monitoring network for the
Fairbanks PM2.5 Nonattainment Area,
and noted that it includes four
regulatory monitor site locations. Table
1 of this preamble includes the site
names, identification numbers, monitor
data, and updated design values for the
PM2.5 monitor site locations in
Fairbanks. In the Proposal, we
explained that with EPA approval, the
State discontinued the monitor location
at the State Office Building and
established the A Street monitor as a
monitor location in 2019. Alaska
established the A Street monitor
location as a State or Local Air
Monitoring Station (SLAMS) PM2.5
monitoring station to characterize PM2.5
concentrations in the Fairbanks portion
of the nonattainment area. The EPA also
explained in the Proposal that the Hurst
Road monitor measures expected
maximum concentrations for the
nonattainment area.17 Following is a
table of air quality monitoring data in
the Fairbanks PM2.5 Nonattainment
Area. The EPA notes this table was
updated from the Proposal because
monitoring data from 2022 became
available since the Proposal was
published. Therefore, Table 1 of this
preamble includes the 2020–2022 24hour Design Values, while the Proposal
included the 2019–2021 24-hour Design
Values.
TABLE 1—FAIRBANKS PM2.5 MONITORING LOCATIONS AND RECENT SITE-LEVEL DESIGN VALUES
98th percentile
(μg/m3)
Local site name
Site location
AQS ID
2020
Hurst Road * ....................
A Street ...........................
NCore ..............................
3288 Hurst Road, North Pole ..................................
397 Hamilton Ave, Fairbanks ..................................
809 Pioneer Road, Fairbanks .................................
02–090–0035
02–090–0040
02–090–0034
State Office Building .......
675 7th Avenue, Fairbanks .....................................
02–090–0010
2021
71.4
36.1
26.6
65.5
*** 29.6
27.5
2022 **
2020–2022
24-hour
Design
Value **
72.5
*** 84.2
76.3
70
50
43
Site closed in 2019, monitor equipment relocated to A Street
location.
* Monitor location previously referred to as North Pole Fire Station.
** Data in this table includes monitor days in 2022 that the state flagged as influenced by wildfires.
*** Monitor data in 2021 and 2022 impacted by data completeness issues.
Source: EPA 2022 AQS Design Value Report.
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1. Comments and Responses
Comment: As noted in the prior
paragraphs of this preamble, in the
context of commenting on
environmental justice concerns in the
Fairbanks PM2.5 Nonattainment Area, a
commenter questioned the adequacy of
monitoring in the area. The commenter
stated that the environmental justice
concerns highlight the need for more
Federal Reference Monitors (FRM) in
the Fairbanks PM2.5 Nonattainment
Area. Specifically, the commenter states
that three monitors are insufficient for
the nonattainment area, that Alaska
should reestablish the State Office
Building monitoring site, and establish
additional sites, including in the
Bjerremark neighborhood.
Response: As stated in Section II.B of
this preamble, the EPA is finalizing
action on the Fairbanks Serious Plan
and Fairbanks 189(d) Plan based on a
determination of whether these plans
meet applicable CAA requirements.
Regarding the adequacy of the existing
monitoring network, the EPA’s review
and approval of Alaska’s PM2.5
monitoring network for the Fairbanks
2006 PM2.5 Nonattainment Area is
outside the scope of this action. The
EPA separately evaluates the adequacy
of the State’s monitoring network in the
context of the Annual Monitoring
Network Plans (ANP) developed and
submitted by the State to the EPA
pursuant to 40 CFR part 58, or in the
context of an Infrastructure SIP
submission for a new or revised
NAAQS.
The commenter specifically
questioned the State’s decision to shut
down the State Office Building monitor
location and to relocate the monitor to
the A Street monitor location. Alaska
documented the basis for this change
and requested the site relocation in a
letter to the EPA dated May 15, 2019,
per 40 CFR 58.14(b). The EPA approved
the relocation of the State Office
Building monitoring site to A Street and
the establishment of the A Street station
as a SLAMS station, including the site
relocation, as meeting the requirements
of 40 CFR part 58, Appendix D in a
letter dated June 26, 2019.18 This
network modification was also
documented in Alaska’s 2019 ANP
dated June 28, 2019,19 which the EPA
approved on November 21, 2019. Prior
to submitting its 2019 ANP, Alaska
offered a 32-day public comment period
starting on May 23, 2019, during which
members of the public could submit
comments on the adequacy of the ANP.
The EPA notes that 40 CFR part 58,
Appendix D sets the minimum
monitoring network design criteria State
ambient air networks must meet. Alaska
submitted their 2022 ANP on June 28,
2022.20 Prior to submitting the 2022
ANP, Alaska held a 30-day public
comment period. On September 21,
2022, the EPA approved Alaska’s 2022
ANP as meeting the requirements of 40
CFR part 58, Appendix D. The EPA is
not revisiting its prior ANP approvals as
part of this action. Most recently, Alaska
submitted its 2023 ANP on June 30,
2023. The 2023 ANP was available for
public comment from May 21–June 21,
2023. The EPA has 120 days to review
and approve Alaska’s 2023 ANP.
Neither the CAA nor 40 CFR part 58,
Appendix D preclude the State from
exceeding these minimum
requirements, including deploying
17 For further details of the air quality monitoring
network in the Fairbanks PM2.5 Nonattainment
Area, see the EPA’s approval letters of Alaska’s
Annual Monitoring Network Plans for each year
between 2019 to 2022, which are included in the
docket for this action.
18 Letter from Debra Suzuki, EPA Region 10 Air
Planning, State/Tribal Coordination Branch to
Barbara Trost, Alaska Department of Environmental
Conservation, Air Monitoring and Quality
Assurance Program, June 26, 2019, included in the
docket for this action.
19 2019 Annual Air Quality Monitoring Network
Plan, Alaska Department of Environmental
Conservation, June 28, 2019, at p 33, available at:
https://dec.alaska.gov/air/air-monitoring/
monitoring-plans.
20 2022 Annual Air Quality Monitoring Network
Plan, Alaska Department of Environmental
Conservation, Final Draft, June 28, 2022.
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additional monitors beyond the
minimum number required.
If the commenter has specific
concerns with the adequacy of the
monitoring network, then the
appropriate place to raise these issues is
with the State during the public
comment period for their next ANP.
State ANPs typically are posted for
public comment annually in late May to
allow for a 30-day comment period
before the ANP is due to the EPA on
July 1. States are required to include
and address all comments in their final
ANP submission per 40 CFR 58.10(a)(1).
Comment: Several commenters raised
concerns with the ambient air monitors.
Specifically, one commenter stated that
monitors were sited in the worst areas
and not representative of air quality in
the Fairbanks PM2.5 Nonattainment
Area. Other commenters asserted that
the monitors are outdated, inaccurate
below negative 20 degrees Fahrenheit,
and do not distinguish between
hydroxymethanesulfonate (HMS) from
inorganic sulfate and organic mass and
PM2.5. These commenters stated this is
creating problems with monitors in the
North Pole and Fairbanks portions of
the nonattainment area, respectively.
Response: As previously discussed, in
this action, the EPA is evaluating
whether the Fairbanks Serious Plan and
Fairbanks 189(d) Plan meet applicable
requirements for nonattainment plans.
These commenters raised concerns
about the adequacy of the monitor
network. The EPA’s review and
approval of Alaska’s PM2.5 monitoring
network for the Fairbanks PM2.5
Nonattainment Area is outside the scope
of this action. The EPA is finalizing
action on the Fairbanks Serious Plan
and Fairbanks 189(d) Plan. These SIP
submissions do not contain Alaska’s
84631
monitoring plans. Such monitoring
plans are contained in Alaska’s ANP
developed and submitted to the EPA
pursuant to 40 CFR part 58. The EPA
approved these monitoring network
plans as meeting the requirements of 40
CFR part 58,21 including that the
monitoring stations are representative of
area-wide air quality and that Alaska
sited at least one monitoring station at
neighborhood or larger scale in an area
of expected maximum concentration.22
Alaska also measures SO2 at the Hurst
Road site in North Pole, and speciated
PM2.5 at both Hurst Road and the
Fairbanks National Core multipollutant
(NCore) monitoring station.
Table 2 of this preamble contains
details on the make and model of air
samplers Alaska has deployed as part of
the ambient air monitoring network in
the Fairbanks PM2.5 Nonattainment
Area.
TABLE 2—AIR QUALITY SAMPLERS IN THE FAIRBANKS PM2.5 NONATTAINMENT AREA
Monitoring station
Air samplers
NCore/Fairbanks 02–090–0034 ...............................................
A Street/Fairbanks 02–090–0040 ............................................
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Hurst Road/North Pole 02–090–0035 ......................................
Although outside the scope of this
action, and not relevant to the action on
these SIP submissions, the EPA notes
that it has approved each of these
monitoring methods as meeting the
FRM or Federal Equivalent Method
(FEM) pursuant to 40 CFR part 53.23
Furthermore, Alaska performs the
required quality assurance and quality
control measures pursuant to 40 CFR
part 58, Appendix A.
Scientific studies being conducted as
part of the Alaskan Layered Pollution
and Chemical Analysis (ALPACA)
research project being led by the
University of Alaska Fairbanks are
expected to focus on state-of-the-science
measurements of Fairbanks air quality,
including measurements of HMS. The
EPA will consider the results of peerreviewed journal articles from ALPACA
studies that are relevant to Alaska’s
future annual network plans or a future
SIP submission for the Fairbanks PM2.5
Nonattainment Area.
21 2022 Annual Air Quality Monitoring Network
Plan, Alaska Department of Environmental
Conservation, Final Draft, June 28, 2022. Letter from
Debra Suzuki, Manager Air Planning, State/Tribal
Coordination Branch, EPA Region 10, to Barbara
Trost, Division of Air Quality, Alaska Department
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Thermo Scientific Sequential Partisol 2025i (VSCC)–FRM.
Thermo Scientific Partisol 2000i (VSCC)–FRM.
Thermo Scientific Sequential Partisol 2025i (VSCC)–FRM.
Met One BAM 1020 (SCC) non-FEM.
2 Thermo Scientific Sequential Partisol 2025i (VSCC)–FRM.
Met One BAM 1020 (SCC) non-FEM.
D. Clean Air Act Requirements for PM2.5
Serious Area Plans and Serious PM2.5
Areas That Fail To Attain
1. Summary of Proposal
The Proposal contains a summary of
the statutory and regulatory
requirements for Serious area plans for
PM2.5 nonattainment areas and
requirements for CAA section 189(d)
plans and will not be restated here. In
the Proposal, the EPA proposed
combined requirements for PM2.5
Serious areas and Serious areas that fail
to attain. Specifically, the EPA
explained in the Proposal that the CAA
does not contain provisions that address
precisely how a State should meet all of
the planning requirements for a Serious
nonattainment area, in the case where
the area has already failed to attain the
NAAQS by the Serious area attainment
date, but before the State has met all of
the planning requirements for Serious
nonattainment areas. By extension, the
CAA does not account for potential
conflicts between the required plan
of Environmental Conservation, September 21,
2022.
22 See Section 4.7.1(b) of Appendix D to 40 CFR
part 58.
23 U.S. Environmental Protection Agency, Center
for Environmental Measurements & Modeling, Air
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provisions for Serious area plans and
CAA section 189(d) plans, particularly
with respect to the attainment projected
inventory, attainment demonstration,
reasonable further progress (RFP), and
quantitative milestone (QM) plan
provisions. These elements are required
for all PM2.5 nonattainment plans and
are dependent on a single projected
attainment date that complies with the
statutory requirements governing the
area. Thus, in the event that a State is
obligated to submit both a Serious area
plan and a CAA section 189(d) plan, a
conflict arises between the applicable
attainment date by which States should
structure these plan provisions and
against which the EPA should evaluate
them.
Accordingly, the EPA proposed that it
should evaluate any previously unmet
Serious area plan requirements based on
the current, applicable attainment date
for nonattainment areas subject to CAA
section 189(d), and not the original
Serious area attainment date December
Methods & Characterization Division, List of
Designated Reference and Equivalent Methods, June
15, 2023, available at https://www.epa.gov/system/
files/documents/2023-06/List_of_FRM_FEM_
%20June%202023_Final.pdf.
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31, 2019.24 In this instance, in the
Fairbanks 189(d) Plan, the State
identified December 31, 2024, as the
target attainment date that would
represent attainment as expeditiously as
practicable. Thus, the EPA proposed to
evaluate the Fairbanks Serious Plan and
Fairbanks 189(d) Plan submissions
based on the combined requirements
included in Table 3 of this preamble
(Table 2 in the Proposal).
TABLE 3—COMBINED FAIRBANKS SERIOUS PLAN AND FAIRBANKS 189(d) PLAN REQUIREMENTS
Description
Legal/regulatory requirement
CAA planning requirements for PM2.5 Serious Areas and Areas That Fail To Attain
Base year emissions inventory for Serious areas subject to CAA section 189(b) * ............................
Base year emissions inventory for areas subject to CAA section 189(d) ...........................................
Attainment projected emissions inventory ...........................................................................................
Serious area nonattainment plan control strategy that ensures that best available control measures
(BACM), including best available control technologies (BACT), for the control of direct PM2.5 and
PM2.5 precursors are implemented in the area.
Additional measures (beyond those already adopted in previous nonattainment plan SIP submissions for the area as RACM/RACT, BACM/BACT, and MSM 28 (if applicable)) that provide for attainment of the NAAQS as expeditiously as practicable and, from the date of such submission
until attainment, demonstrate that the plan will at a minimum achieve an annual five percent reduction in emission of direct PM2.5 or any PM2.5 plan precursor. The State must reconsider and
reassess any measures previously rejected by the State during the development of any Moderate area or Serious area attainment plan control strategy for the area.
Attainment demonstration and modeling .............................................................................................
Reasonable further progress (RFP) provisions ...................................................................................
Quantitative milestones ........................................................................................................................
An adequate evaluation by the State of sources of all four PM2.5 precursors for regulation, and implementation of controls on all such precursors, unless the State provides a demonstration establishing that it is either not necessary to regulate a particular precursor in the nonattainment
area at issue in order to attain by the attainment date, or that emissions of the precursor do not
make a significant contribution to PM2.5 levels that exceed the standard **.
Contingency measures applicable to Serious areas subject to CAA section 189(b) ..........................
Contingency measures applicable to Serious areas subject to CAA section 189(d) ..........................
Nonattainment new source review provisions .....................................................................................
CAA
CAA
CAA
CAA
section
section
section
section
172(c)(3); 25 40 CFR 51.1008(b)(1).
172(c)(3); 40 CFR 51.1008(c)(1).
172(c)(1); 26 40 CFR 51.1008(c)(2).
189(b)(1)(B); 27 40 CFR 51.1010(a).
CAA section 189(d); 29 40 CFR 51.1010(c).
CAA sections 188(c)(2) and 189(b)(1)(A); 30 40 CFR 51.1003(c)
and 51.1011.
CAA section 172(c)(2); 31 40 CFR 51.1012.
CAA section 189(c); 32 40 CFR 51.1013.
CAA section 189(e); 33 40 CFR 51.1006.
CAA section 172(c)(9); 34 40 CFR 51.1014.
CAA section 172(c)(9); 40 CFR 51.1014.
CAA sections 172(c)(5), 189(b)(3), 189(d), and 189(e), and 40
CFR 51.165 40 CFR 51.1003(b)(1)(viii), and 40 CFR
51.1003(c)(1)(viii).35
* EPA finalized approval of this requirement on September 24, 2021 (86 FR 52997).
** EPA finalized approval of this requirement applicable to Serious areas subject to CAA section 189(b) on September 24, 2021 (86 FR 52997).
3. Comments and Responses
We received three comments
regarding the proposed requirements.
One commenter agreed with the EPA’s
interpretation of the CAA with respect
to the attainment date. The second
commenter opposed the EPA’s
interpretation of the control strategy
requirement for CAA section 189(d)
areas. The final commenter opposed the
EPA’s statutory and constitutional
authority to regulate air quality in the
State of Alaska.
Comment: In its comment, Alaska
stated that because CAA section 189(d)
does not itself supply a specific
attainment date for CAA section 189(d)
areas, the EPA interprets the CAA to
impose the attainment date
requirements of CAA sections 172 and
179, and as interpreted in 40 CFR
51.1004(a)(3), rather than the date
imposed in CAA section 188(c)(2),36 and
as interpreted in 40 CFR 51.1004(a)(2).
Alaska agrees with the EPA’s
interpretation of the CAA and that
51.1004(a)(3) applies, which provides
for 5 years past the finding of failure to
attain for the Serious area and may be
extended up to 10 years if deemed
appropriate by the Administrator.
Response: The EPA agrees with
Alaska that the attainment date for the
Fairbanks PM2.5 nonattainment area is
governed by CAA sections 172 and 179
and 40 CFR 51.1004(a)(3), which require
24 86 FR 53150, September 24, 2021, at p. 53155.
In accordance with CAA section 172(a)(2) and
179(d) and 40 CFR 51.1004(a)(3), ‘‘The projected
attainment date for a Serious PM2.5 nonattainment
area that failed to attain the PM2.5 NAAQS by the
applicable Serious area attainment date shall be as
expeditious as practicable, but no later than 5 years
following the effective date of the EPA’s finding
that the area failed to attain by the original Serious
area attainment date, except that the Administrator
may extend the attainment date to the extent the
Administrator deems appropriate, for a period no
greater than 10 years from the effective date of the
EPA’s determination that the area failed to attain,
considering the severity of nonattainment and the
availability and feasibility of pollution control
measures.’’
25 42 U.S.C. 7502(c)(3).
26 42 U.S.C. 7502(c)(1).
27 42 U.S.C. 7513a(b)(1)(B).
28 MSM is applicable if the EPA has previously
granted an extension of the attainment date under
CAA section 188(e) for the nonattainment area and
NAAQS at issue. The EPA denied Alaska’s request
to extend the Serious area attainment date for the
Fairbanks Serious Nonattainment Area.
29 42 U.S.C. 7513a(d).
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2. Final Rule
The EPA is finalizing the approach to
evaluating the Fairbanks Serious Plan
and Fairbanks 189(d) Plan submissions
as proposed.
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that the new attainment date must be as
expeditious as practicable, but no later
than five years from the date of
publication in the Federal Register of
the EPA’s determination that the area
failed to attain the relevant NAAQS. In
addition, the EPA may extend the
attainment date by up to five additional
years (thus up to 10 years from the date
of publication of the notice of finding of
failure to attain by the applicable
attainment date for the area) if the EPA
deems it appropriate ‘‘considering the
severity of nonattainment and the
availability and feasibility of pollution
control measures.’’
The EPA notes that any extension to
the attainment date pursuant to CAA
section 172(a)(2)(A) must be predicated
on a SIP submission that demonstrates
that attainment within five years from
30 42
U.S.C. 7513(c)(2) and 7513a(b)(1)(A).
U.S.C. 7502(c)(2).
32 42 U.S.C. 7513a(c).
33 42 U.S.C. 7513a(e).
34 42 U.S.C. 7502(c)(9).
35 42 U.S.C. 7502(c)(5), 7513a(b)(3), 7513a(d), and
7513a(e). In the Proposal, the EPA inadvertently
omitted reference to CAA sections 172(c)(5), 189(d),
and 189(e), 40 CFR 51.1003(b)(1)(viii), and 40 CFR
51.1003(c)(1)(viii).
36 The EPA understands the intended reference
here to be CAA section 172(c).
31 42
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the date of publication in the Federal
Register of the EPA’s determination that
the area failed to attain the relevant
NAAQS is infeasible and identifies the
most expeditious date by which
attainment is feasible considering the
severity of nonattainment and the
availability and feasibility of pollution
control measures. Absent such a SIP
submission, the EPA does not have a
basis to extend the attainment date nor
to identify the most expeditious
attainment date.
Comment: Another commenter
disagreed with the EPA’s determination
that Alaska did not need to identify,
adopt, and implement MSM as part of
the Fairbanks Serious Plan or Fairbanks
189(d) Plan. The commenter stated that
the EPA determined that MSM is not
applicable to the Serious Plan or the
189(d) plan because MSM ‘‘is applicable
if the EPA has previously granted an
extension of the attainment date under
CAA section 188(e)’’ and ‘‘EPA denied
Alaska’s [previous] request to extend the
Serious area attainment date.’’ However,
the commenter stated that CAA section
188(e) provides that Alaska must
demonstrate that its SIP includes MSM
before an extension may be granted, not
if an extension has been ‘‘previously
granted.’’ The commenter asserted that
an approval of the Fairbanks Serious
Plan under a 2024 attainment date
would amount to a de facto extension of
the attainment date, and that MSM
should be applicable to the parts of the
SIP submission being evaluated under
Serious SIP requirements.
Response: The EPA disagrees with the
commenter that the State is required to
identify, adopt, and implement MSM
under these circumstances. In
accordance with CAA section 188(e)
and 40 CFR 51.1005(b), upon
application by the State, the EPA may
extend the attainment date for a Serious
area beyond the date required by CAA
section 188(c)(2) and 40 CFR 51.1004 if,
inter alia, the State demonstrates that
the attainment plan for the area includes
MSMs that are included in the
attainment plan of any State or are
achieved in practice in any State, and
can feasibly be implemented in the area.
Thus, identifying, adopting, and
implementing MSM is a necessary
condition of the EPA granting an
extension to the Serious area attainment
date under CAA section 188(e). MSM is
not, however, an independent
requirement for all Serious area plans
under CAA section 189(b), nor for all
CAA section 189(d) plans.
The CAA provides for the scenario
whereby the State either never applies
for an attainment date extension under
CAA section 188(e), or the State
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requests an extension but the EPA
denies such request because the State
failed to meet the conditions in CAA
section 188(e). If either of these
scenarios occur and the State fails to
attain the 2006 24-hour PM2.5 NAAQS
by the Serious area attainment date,
then the statutory consequence is that
the State is subject to the planning
requirements of CAA section 189(d).37
A State would only have to comply with
the MSM requirements of CAA section
188(e) if the State had sought, and the
EPA had granted, an extension of the
Serious area attainment date and then
failed to attain by that extended
attainment date.
On September 2, 2020, the EPA
determined that the Fairbanks PM2.5
Nonattainment Area failed to attain by
the Serious area attainment date.38 As
part of that same action, the EPA denied
Alaska’s request to extend the Serious
area attainment date under CAA section
188(e). As a result of this action, the
State became subject to the
requirements of CAA section 189(d).
Neither CAA section 189(d) nor the
PM2.5 SIP Requirements Rule under
these circumstances require that the
State SIP include MSM, unless the EPA
previously approved the State’s request
to extend the Serious area attainment
date under CAA section 188(e). The
regulation at 40 CFR 51.1010(c)(2)(i)
provides that: ‘‘For the sources and
source categories represented in the
emission inventory for the
nonattainment area, the state shall
identify the most stringent measures for
reducing direct PM2.5 and PM2.5 plan
precursors adopted into any SIP or used
in practice to control emissions in any
state, as applicable.’’ (Emphasis added).
As made clear in the response to
comments to the PM2.5 SIP
Requirements Rule, the EPA included
the phrase ‘‘as applicable’’ in this
regulation to make clear that a State is
only required to identify and impose
MSM if the EPA has previously
extended the Serious area attainment
date.39 Thus, the requirement to
37 The PM
2.5 SIP Requirements Rule at 40 CFR
51.1005(c) implements this statutory prescription,
stating: ‘‘If a Serious area fails to attain a particular
PM2.5 NAAQS by the applicable Serious area
attainment date, the area is then subject to the
requirements of section 189(d) of the Act, and, for
this reason, the state is prohibited from requesting
an extension of the applicable Serious area
attainment date for such area.’’
38 Determination of Failure To Attain by the
Attainment Date and Denial of Serious Area
Attainment Date Extension Request; AK: Fairbanks
North Star Borough 2006 24-Hour Fine Particulate
Matter Serious Nonattainment Area, 85 FR 54509,
September 2, 2020.
39 ‘‘In the event the area previously had received
an extension of the Serious area attainment date
pursuant to section 188(e), the reevaluation of
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identify, adopt, and implement MSM as
part of the control strategy for this
NAAQS does not apply to the Fairbanks
PM2.5 Nonattainment Area.40
Comment: One commenter questioned
the Federal government’s authority
generally and the EPA’s authority and
jurisdiction specifically to regulate air
quality in the State of Alaska. The
commenter stated that the Bill of Rights
contains restrictions on the Federal
government’s power and that the Tenth
Amendment to the United States
Constitution states that the power not
delegated to the United States nor
prohibited to the States are reserved to
the States and the people. The
commenter further stated: ‘‘There’s
nowhere in the constitution that talks
about a multitude of alphabet agencies
the Federal government has created, and
you actually are the ones that are in
violation. You’re talking about how
we’re in violation of your air standards,
but you’re the agency that’s in violation
of our constitutional limitations against
you. You have no jurisdiction. You’re
violating due process in separat[ion] of
powers.’’
Response: The EPA disagrees with the
commenter that the Federal government
generally, and the EPA specifically, lack
the authority to regulate air quality in
Alaska as in all other States. In the CAA,
Congress authorized the EPA to exercise
numerous obligations related to air
quality, including establishing the
NAAQS, designating areas that fail to
attain the NAAQS, and reviewing and
approving or disapproving State SIP
submissions required to provide for
attainment and maintenance of the
NAAQS.41 Congress also granted the
EPA general rulemaking authority to
administer and implement the CAA.42
The United States Supreme Court has
acknowledged the Federal government’s
and the EPA’s authority to regulate
national air quality in the manner laid
control measures referenced in section 51.1010(c)(2)
should include a reevaluation of MSM. (For this
reason, section 51.1010(c)(2)(i) refers to the
reevaluation of MSM ‘‘as applicable.’’) If, however,
the area did not previously request and receive an
extension of the Serious area attainment date under
section 188(e), the MSM requirement does not
apply.’’ Response to Comments on the Fine
Particulate Matter National Ambient Air Quality
Standards: State Implementation Plan
Requirements, July 29, 2016, Docket No. EPA–HQ–
OAR–2013–0691–0145 at p. 155.
40 The EPA notes, however, that the state needs
to consider implementing MSMs as contingency
measures.
41 CAA sections 107, 109, 110, 171–192, 42 U.S.C.
7407, 7409, 7410, 7501–4514a; see also Sierra Club
v. EPA, 671 F.3d 955, 958–959 (9th Cir. 2012).
42 CAA section 301(a), 42 U.S.C. 7601(a) (‘‘The
Administrator is authorized to prescribe such
regulations as are necessary to carry out his
functions under this chapter.’’).
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out in the Clean Air Act.43 Thus, the
EPA has the statutory authority and
obligation to act on Alaska’s SIP
submissions for the Fairbanks PM2.5
Nonattainment Area. Furthermore, the
EPA’s exercise of such authority—either
in general or specific to these Plans—is
within the Federal government’s
constitutional authorities and does not
violate any individual constitutional or
civil rights.
E. Review of the Fairbanks Serious Plan
and Fairbanks 189(d) Plan
1. Emission Inventories
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i. Summary of Proposal
The EPA proposed to approve the
2019 base year emissions inventory on
the basis that it met the requirements of
CAA section 172(c)(3) and 40 CFR
51.1008. The EPA stated that calendar
year 2019 was an appropriate base year
for the Fairbanks 189(d) Plan because it
was one of the three years for which the
EPA used monitored data to determine
that the area failed to attain the PM2.5
NAAQS by the applicable Serious area
attainment date.44 The base year
emissions inventory was a seasonal
inventory, based on two historical
meteorological episodes judged by the
EPA to be representative of the range of
meteorological conditions that lead to
exceedances of the 24-hour NAAQS.
This was an appropriate temporal scope
for a base year emissions inventory.
Exceedances of the 24-hour NAAQS,
other than those exceedances
attributable to non-anthropogenic
emissions, occur primarily in the colder
months during fall, winter, and spring
when home heating sources are widely
used. The State provided a justification
that for purposes of the emissions
inventory, the baseline emissions
inventory season should be from
October 1 to March 31, and the EPA
agrees with this.
The EPA proposed to disapprove the
projected emissions inventory on the
basis that the Fairbanks 189(d) Plan did
not satisfy the requirement of 40 CFR
51.1008(c)(2) regarding an attainment
43 Train v. Nat’l Resources Def. Council, Inc., 421
U.S. 60, 64–65 (1975) (‘‘[The 1970 Clean Air Act]
Amendments sharply increased Federal authority
and responsibility in the continuing effort to
combat air pollution.’’); Union Elec. Co. v. EPA, 427
U.S. 246, 249–250 (1976) (‘‘[T]he Amendments
reflect congressional dissatisfaction with the
progress of existing air pollution programs and a
determination to ‘‘tak(e) a stick to the States,’’ in
order to guarantee the prompt attainment and
maintenance of specified air quality standards. The
heart of the Amendments is the requirement that
each State formulate, subject to EPA approval, an
implementation plan designed to achieve national
primary ambient air quality standards those
necessary to protect the public health.’’).
44 85 FR 54509, September 2, 2020.
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projected emission inventory for the
most expeditious attainment date. The
Fairbanks 189(d) Plan contained an
attainment projected emissions
inventory, and Alaska projected
attainment by December 31, 2024. The
EPA noted that the control strategy does
not contain all required control
measures. Therefore, the attainment
projected emissions inventory does not
necessarily take into consideration all
required emissions reductions. Because
the State did not properly evaluate and
adopt control measures for all relevant
source categories and pollutants, it was
neither possible nor appropriate to
determine that the projected emission
inventory was consistent with the level
of emissions needed to meet the
overarching requirement for attainment
of the NAAQS in the area as
expeditiously as practicable. We do note
that on September 25, 2023, Alaska
withdrew is SO2 BACT determinations
and analysis for major stationary
sources in the Fairbanks PM2.5
Nonattainment Area.45
In addition, the EPA observed that
Alaska’s proposed attainment date of
2024 is predicated on a modeling
platform that is in need of improvement,
including development of a quantitative
performance evaluation for the Hurst
Road monitor in North Pole that is
based on recent meteorological episodes
and PM2.5 speciation data.
ii. Final Rule
The EPA is finalizing approval of the
base year 2019 emission inventory. The
EPA is finalizing disapproval of the
projected attainment year emission
inventory.
iii. Comments and Responses
Comment: Alaska stated that the EPA
should avail itself of the opportunity to
incorporate new data with the modeling
updates described in Alaska’s Technical
Analysis Protocol which, until this year,
were unavailable. The State suggested
that the cumulative effect of new data
combined with the extensive modeling
updates will strengthen planning
documents, improve accuracy, and
expedite attainment.
Response: The EPA’s final action is
based on the SIP submissions before it.
As discussed in section II.A of this
preamble, the EPA has a mandatory
duty to approve, disapprove, or
conditionally approve the Fairbanks
Serious Plan and Fairbanks 189(d) Plan.
45 ‘‘Fairbanks SIP submissions for the Serious area
and 189(d) plans’’ Letter from Emma Pokon, Acting
Commissioner, Alaska Department of
Environmental Conservation, to Casey Sixkiller,
Regional Administrator, EPA Region 10, September
25, 2023. Included in the docket for this action.
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Alaska intended these submissions to
meet applicable CAA requirements for
Serious areas and Serious areas that fail
to attain by the Serious area attainment
date. Within these SIP submissions,
Alaska based the attainment projected
emissions inventories and modeled
attainment demonstrations on the 2008
episodes. Alaska thus represented that
these episodes met CAA requirements
for the attainment projected inventory.
The EPA is disapproving the
attainment projected emissions
inventory and modeled attainment
demonstration in the Fairbanks 189(d)
Plan for the reasons stated in the
Proposal and in this final action. To the
extent that the State elects to
incorporate new data and new modeling
updates in a subsequent SIP submission,
it may do so. The EPA anticipates that
the State will make a new SIP
submission to address the deficiencies
that required disapproval in this action.
The EPA notes that CAA sections 110
and 179 provide a process whereby
States may rectify disapprovals through
a subsequent SIP submission and
thereby avoid the potential for
mandatory sanctions and a FIP. To that
end, the EPA has been coordinating
with Alaska on the monitoring and
modeling analyses described by the
State. The EPA will review the modeled
attainment demonstration, and the
associated attainment projected
emission inventory, as updated by the
State in subsequent SIP submissions for
compliance with applicable
requirements.
Comment: GVEA stated that the
trends and changing nature of
residential wood combustion need
further attention. GVEA noted that both
the availability and projected demand
for dried wood need to be solidly
developed and included in the projected
emissions inventory. GVEA stated that
since residential wood combustion is
demonstrated to be an important
contributor to PM2.5 concentrations in
the Fairbanks PM2.5 Nonattainment
Area, that trend and associated
emissions reductions need to be
assessed and included in a robust
modeling analysis that demonstrates
compliance with the PM2.5 Ambient Air
Quality Standards.
Response: The EPA agrees with GVEA
that usage of residential wood
combustion and the availability of dry
wood are key factors that the State
needs to consider in an updated
assessment of control measures and
expeditious attainment. We do note that
Aurora Energy has established one dry
wood kiln in Fairbanks (using the waste
heat from the Chena Power Plant) with
plans to expand operations. Ultimately,
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we anticipate that as part of a
subsequent SIP submission, Alaska will
evaluate the contributions of emissions
from the solid fuel burning source
category and evaluate the various
emission reductions attributable to the
suite of control measures, including the
dry wood requirements.
Comment: A number of commenters
stated that much of the pollution in
Fairbanks comes from overseas from
countries such as Russia and China.
Response: International contributions
to air quality in the Fairbanks PM2.5
Nonattainment Area are part of the
boundary conditions input to the
photochemical model that is used to
evaluate relevant sources. Neither the
State nor the EPA have identified a
significant contribution from overseas
emissions to ambient PM2.5 levels in the
area. Absent further evidence, the EPA
will continue to assess the impacts of
sources of emissions in the area, and
control requirements for those sources,
as identified in Alaska’s analysis.
2. Pollutants Addressed
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i. Summary of Proposal
Alaska submitted as part of the
Fairbanks 189(d) Plan comprehensive
precursor demonstrations for existing
sources of NOX and VOC emissions.
Alaska did not submit a precursor
determination for existing sources of
SO2 and NH3 emissions.46 Moreover,
Alaska did not submit a nonattainment
new source review (NNSR) precursor
demonstration for any PM2.5 precursor.
Alaska regulates all PM2.5 precursors
under its NNSR program. The EPA
approved Alaska’s NNSR program on
August 29, 2019 (84 FR 45419). In the
Proposal, the EPA evaluated the State’s
precursor demonstration included in the
Fairbanks 189(d) Plan consistent with
the PM2.5 SIP Requirements Rule and
the recommendations in the May 30,
2019, PM2.5 Precursor Demonstration
Guidance.47
The EPA proposed to approve the
State’s demonstration that NOX and
VOC emissions do not contribute
significantly to ambient PM2.5 levels that
exceed the 2006 24-hour PM2.5 NAAQS
in the Fairbanks PM2.5 Nonattainment
Area for purposes other than
nonattainment new source review
46 According to Alaska, there is a negligible
amount of NH3 associated with coal-fired boilers,
fuel oil-fired turbines or diesel engine emissions
and this amount is not in the emissions inventory.
See State Air Quality Control Plan, Vol. II, Chapter
III.D.7.7.8.1.
47 Memorandum from Scott Mathias, Acting
Director, Air Quality Policy Division and Richard
Wayland, Director, Air Quality Assessment
Division, to Regional Air Division Directors,
Regions 1—10, Fine Particulate Matter (PM2.5)
Precursor Demonstration Guidance, May 30, 2019.
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(NNSR) program requirements. As a
result, Alaska would not be required to
identify and impose control measures
for NOX and VOC emission sources in
Fairbanks, other than for NNSR
purposes. Likewise, the State would not
be required to impose motor vehicle
emission budgets for NOX and VOC
emissions.
The EPA noted that the concentrationbased modeling analysis of VOC
emissions demonstrates that
anthropogenic VOCs have impacts on
PM2.5 concentrations in the Fairbanks
PM2.5 Nonattainment Area that are well
below the 1.5 microgram per cubic
meter (mg/m3) significance threshold.
The EPA also proposed that the weight
of evidence presented in the Fairbanks
Serious Plan and Fairbanks 189(d) Plan
suggested that NOX emitted from all
sources is an insignificant contributor to
local PM2.5 concentrations.
ii. Final Rule
The EPA is finalizing approval of
Alaska’s PM2.5 precursor
demonstrations for NOX and VOC
emissions included in the Fairbanks
Serious and 189(d) Plans. The EPA
reiterates that Alaska did not submit a
precursor determination for SO2 and
NH3 emissions, which remain subject to
control requirements under subparts 1
and 4 of part D, title I of the Act.
Similarly, Alaska did not submit NNSR
precursor demonstrations. Thus,
consistent with its approved SIP, the
State will continue to regulate NOX,
SO2, VOCs, and NH3 as precursors to
PM2.5 with respect to NNSR program
requirements.
iii. Comments and Responses
Comment: Citizens for Clean Air, a
project of Alaska Community Action on
Toxics, and the Sierra Club Alaska
Chapter commented that each day,
15.73 tons of NOX are emitted in
Fairbanks. These compounds are
‘‘precursors’’ that undergo chemical
reactions to form PM2.5. In September
2021, the EPA approved Alaska’s 2019
precursor demonstrations for VOCs and
NOX, finding that Alaska had
sufficiently demonstrated that VOCs
and NOX do not significantly contribute
to the PM2.5 problem in Fairbanks. To
meet its CAA section 189(d) obligations,
the State submitted an updated
precursor analysis in 2020. This
updated analysis included one new
NOX model run, and Earthjustice noted
that the EPA proposed to find that the
weight of evidence suggested that NOX
emitted from all sources is an
insignificant contributor to local PM2.5
concentrations.
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The commenters disagreed with the
EPA’s approval of Alaska’s new NOX
model run as satisfying precursor
demonstration requirements for the
purposes of CAA 189(d). The
commenters noted that this modeling
consisted of ‘‘a 50% knock-out
quantitative analysis’’ for NOX
emissions. Of note, when the State uses
the terminology ‘‘50% knock-out’’
analysis, they are referring to a
modeling evaluation where a model run
that includes all emission sources in the
nonattainment area (a baseline model
run) is compared to a model run where
50% of the NOX emissions from
anthropogenic sources in the
nonattainment area have been removed.
Based on this modeling, the State
demonstrated that ‘‘the maximum 24hour average PM2.5 concentrations due
to anthropogenic NOX emissions were ≤
1.22 mg/m3 in 2019 for all model grid
cells containing regulatory monitors,
and therefore were below the 1.5 mg/m3
threshold.’’ However, the commenter
noted that the EPA’s Precursor
Demonstration Guidance recommends
‘‘modeling reductions of 30–70 percent’’
for such sensitivity analyses.
Earthjustice questioned why, when a
50% knock-out analysis showed
concentration results up to 1.22 mg/m3—
approaching the 1.5 mg/m3 threshold—
it was not appropriate to require a 70%
knock-out analysis, or an emissions
control analysis to support the
demonstration. The commenters noted
that the State has previously run 75%
knock-out demonstrations, and there is
no adequate justification for its choice
not to run a 70–75% knock-out
demonstration as part of the Fairbanks
189(d) Plan. The commenters concluded
that the EPA should require Alaska to
better justify its rejection of the need to
regulate NOX.
Response: While the State only
completed one new model run (a run
with a 50% reduction of NOX emissions
from anthropogenic sources) for the
precursor demonstration in the
Fairbanks 189(d) Plan, the EPA also
considered the NOX precursor model
runs from the Fairbanks Serious Plan
when evaluating the NOX precursor
demonstration. The State decided it did
not need to re-run all of the Fairbanks
Serious Plan precursor demonstration
model runs because there were not
significant changes in emissions or air
quality in the Fairbanks PM2.5
Nonattainment Area or to the modeling
platform between the Fairbanks Serious
Plan and the Fairbanks 189(d) Plan.
When evaluating the NOX precursor
demonstration submitted by the State,
the EPA reviewed several model runs,
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focusing on both the average and
maximum modeled PM2.5
concentrations.
First, a major source precursor
analysis where a baseline model run
was compared to a control model run
with a 100% reduction of NOX
emissions from major stationary sources
(presented in the Fairbanks Serious
Plan).
Second, a comprehensive precursor
analysis where a baseline model run
was compared to a control model run
with a 100% reduction of NOX
emissions from anthropogenic sources
(presented in the Fairbanks Serious
Plan).
Third, a sensitivity precursor analysis
where a baseline model run was
compared to a control model run with
a 75% reduction of NOX emissions from
anthropogenic sources (presented in the
Fairbanks Serious Plan).
Fourth, a sensitivity precursor
analysis where a baseline model run
was compared to a control model run
with a 50% reduction of NOX emissions
from anthropogenic sources (presented
in the Fairbanks 189(d) Plan and
referenced by the commenter).
In addition, the EPA reviewed
supplementary information related to
the model runs (e.g., changes in
emissions inventories between 2013 and
2019, which were the two years used for
the precursor model runs). The EPA also
considered source apportionment
analyses that have been conducted for
the Fairbanks area (Kotchenruther,
2016; Ward, 2013).48
Based on all of these data sources, the
EPA agrees with the State that NOX is
not a significant contributor to PM2.5
measured in the nonattainment area.
3. Control Strategy
Alaska submitted as part of the
Fairbanks Serious Plan BACM and
BACT analyses intended to identify and
evaluate potential BACM and BACT
controls for the stationary area sources
and source categories, stationary point
sources, and mobile sources in the
baseline emissions inventory. Alaska
submitted an update to the analysis of
control measures for stationary area
sources and mobile sources in the
Fairbanks 189(d) Plan. Alaska did not
update the analysis for stationary point
sources, including major stationary
sources.
The EPA proposed to approve
Alaska’s determination that there are no
specific NH3 emission controls for the
major stationary or area sources or
source categories in the baseline
emissions inventory discussed in
section II.E.2 of this preamble and that
certain measures designed to reduce
direct PM2.5 emissions also reduce NH3
emissions. Thus, the EPA proposed to
determine that Alaska has satisfied the
requirement to identify, adopt and
implement BACM and BACT for the
sources and source categories of NH3
discussed in section II.E.2 of this
preamble. Thus, the EPA proposed to
determine that no additional controls of
NH3 are required to meet the BACM or
BACT requirements for these specific
source categories for the Fairbanks
Serious Plan or the Fairbanks 189(d)
Plan. The EPA also proposed to approve
the State’s SIP submissions with respect
to BACM and BACT requirements for
pot burners, fuel oil boilers,
incinerators, and portions of the solid
fuel heating device and mobile emission
source categories. The EPA proposed to
disapprove the State’s SIP submissions
with respect to BACM and BACT
requirements for wood seller
requirements, coal-fired heating devices,
coffee roasters, charbroilers, used oil
burners, weatherization and energy
efficiency, oil-fired heating devices, and
portions of the mobile emission source
category.
The EPA is finalizing partial approval
of portions of Alaska’s BACM and BACT
analyses and associated adopted and
submitted rules to impose the control
measures, as described in table 4 of this
preamble. The EPA is finalizing
approval of the BACM and BACT
analysis for which the EPA proposed
approval, including Alaska’s BACM
determinations for NH3 controls. Based
on comments, the EPA is also finalizing
approval of certain portions of Alaska’s
supplemental BACM and BACT analysis
for stationary areas sources and mobile
sources, as explained further in section
II.E.3 of this preamble. Alaska submitted
comments on the Proposal that provided
additional analysis to demonstrate that
that potential control measures for
certain source categories are either
technologically or economically
infeasible at this time. Measures that the
EPA agrees are infeasible in the area at
this time include: an ultra-low sulfur
diesel (ULSD) requirement for
residential and commercial fuel oil
combustion; controls on charbroilers
and used oil burners; and certain
transportation measures. The EPA is
finalizing disapproval of the remaining
portions of Alaska’s BACM analysis and
adopted rules as proposed. Table 4 of
this preamble provides an overview of
the final action.
TABLE 4—SUMMARY OF THE EPA’S FINAL EVALUATION OF ALASKA’S BACM AND BACT ANALYSIS FOR STATIONARY
AREAS SOURCES AND MOBILE SOURCES
Emissions source category
Solid fuel burning ...............
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Residential and commercial
fuel oil combustion.
Small commercial area
sources.
Energy efficiency measures
Emissions from mobile
sources.
State rules relevant to adopted BACM
Specific BACM measures, as identified
by Alaska
Approve: wood-fired heating device requirements
and resulting emissions.
18 AAC 50.075, except (d)(2); 18 AAC
50.077, except (g) and (q).
Disapprove: Wood seller/dry wood requirements;
coal-fired heating devices.
Approve: pot burners, waste oil; fuel oil boilers;
ULSD as heating oil (economically infeasible).
Approve: incinerators (no sources identified);
charbroilers (economically infeasible); used oil
burners (economically infeasible).
Disapprove: coffee roasters ......................................
Disapprove: weatherization and energy efficiency ....
Approve: CARB standards; school bus retrofits;
road paving; other transportation measures; vehicle idling- heavy-duty vehicles (economically infeasible).
18 AAC 50.076(k); 18 AAC 50.079(d),
(e), and (f).
18 AAC 50.078(b) .................................
BACM Measures: 1–30, 33–47, 63,
65–66, R1, R4–R7, R9–R12, R15,
R16–R17, R29.
BACM Measures: 31–32; 48–49.
BACM Measures: 51, 52–53, 61–62.
18 AAC 50.078(c) .................................
BACM Measures: 68–70.
18 AAC 50.078(d) .................................
...............................................................
...............................................................
BACM Measure: 67.
BACM Measure: 64.
BACM Measures: 54–59, 60 (in part),
R20.
EPA evaluation of specific BACM measures
48 Kotchenruther (2016). Source apportionment of
PM2.5 at multiple Northwest U.S. sites: Assessing
regional winter wood smoke impacts from
residential wood combustion. Atmospheric
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Environment, 142, 210–219. Available at: https://
doi.org/10.1016/j.atmosenv.2016.07.048. Ward
(2013). The Fairbanks, Alaska PM2.5 Source
Apportionment Research Study Winters 2005/
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2006–2012/2013, and Summer 2012. University of
Montana-Missoula Center for Environmental Health
Sciences. Available at: https://dec.alaska.gov/air/
anpms/communities/fbks-pm2-5-science/.
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84637
TABLE 4—SUMMARY OF THE EPA’S FINAL EVALUATION OF ALASKA’S BACM AND BACT ANALYSIS FOR STATIONARY
AREAS SOURCES AND MOBILE SOURCES—Continued
Emissions source category
EPA evaluation of specific BACM measures
Disapprove: light-duty vehicle idling at schools and
commercial establishments.
i. Solid Fuel Burning
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a. Summary of Proposal
The solid fuel burning source category
includes a number of measures that the
State adopted as part of the Fairbanks
Serious Plan and relied on in the
Fairbanks 189(d) Plan. These measures
address direct PM2.5, SO2, and NH3
emissions.
Alaska adopted a number of
regulations based on the BACM review
for this source category.49 We proposed
to find that Alaska’s analysis and
adoption of control measures for this
source category meet BACM and BACT
requirements for PM2.5 and SO2
emissions. We also proposed to approve
Alaska’s analysis that found no
available controls that specifically
reduce NH3.50 We noted that the EPA
has previously approved as federally
enforceable SIP-strengthening many of
the control measures submitted as part
of the Fairbanks Serious Plan and prior
SIP submissions in 2018 as part of a
separate action (86 FR 52997, September
24, 2021).
We noted that Alaska’s two-stage
woodstove curtailment program,
included in the Fairbanks Emergency
Episode Plan,51 is at least as stringent as
comparable curtailment programs in
Idaho, Utah, and California. Alaska
accounts for the differences in natural
gas availability, seasonal climate
conditions, and woodstove changeout
incentives in establishing the two-stage
thresholds at 20 mg/m3 (Stage 1) and 30
mg/m3 (Stage 2), respectively. Alaska
49 Alaska state regulations 18 AAC 50.075 (e)(3),
(f)(2); 18 AAC 50.076 (d)–(e), (g), (j)–(l); 18 AAC
50.077(a)–(m); 18 AAC 50.078(b); 18 AAC 50.079(f).
50 Note that the EPA inadvertently indicated that
it proposed to disapprove the Fairbanks Serious
Plan and Fairbanks 189(d) Plan as not meeting
BACT requirements for NH3 in Section V of the
Proposal. This was in error. The EPA made clear
in the preamble to the Proposal that it was
proposing to approve Alaska’s determinations that
no NH3 controls existed for each of the stationary
sources listed.
51 State Air Quality Control Plan, Vol. II, Chapter
III.D.7.12. This portion of Alaska’s SIP is distinct
from the Alaska’s emergency powers under Alaska
Statutes 46.03.820 and 18 AAC 50.245–50.246 that
authorize ADEC to declare an air alert, air warning,
or air advisory to notify the public and prescribe
and publicize curtailment action. In prior actions,
the EPA has determined that these authorities are
consistent with CAA section 110(a)(2)(G) and 40
CFR 51.150 through 51.153. See 83 FR 60769,
November 27, 2018, at p. 60772.
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State rules relevant to adopted BACM
Specific BACM measures, as identified
by Alaska
...............................................................
BACM Measure: 60 (in part).
also has an advisory level set at 15 mg/
m3 as part of the curtailment program.
Alaska has placed further limitations on
the No Other Adequate Source of Heat
(NOASH) exemption waivers that limit
applicability to those who have
economic needs based on objective
criteria and limited the number of years
NOASH waivers are available.
Therefore, we proposed to approve the
wood stove curtailment program and
associated updates to the NOASH
waivers/temporary exemption as
meeting the BACM requirement for the
solid fuel burning source category (i.e.,
Alaska State regulations 18 AAC 50.075
(e)(3), (f)(2)) for the control of PM2.5 and
SO2 emissions.
Alaska identified and evaluated as
BACM the heating device performance
standards adopted previously by
Missoula County, Montana.52 Alaska
adopted a regulation modeled after the
rule in Missoula County. Under 18 AAC
50.077(c), Alaska’s regulations require
that woodstoves meet emissions
standards that are more stringent than
the EPA’s New Source Performance
Standards (NSPS) requirement and also
include 1-hour testing requirements to
ensure only the lowest-emitting
woodstoves are allowed to be sold and
installed in the nonattainment area. We
proposed to find that Alaska adopted
measures sufficient to meet the BACM
requirement for the solid fuel burning
source category (i.e., 18 AAC 50.077 (a–
j) for PM2.5 and SO2 emissions.
Alaska’s regulation 18 AAC 50.075(f),
applicable to the Fairbanks PM2.5
Nonattainment Area, prohibits the
operation of a solid fuel-fired heating
device emissions when visible
emissions exceed 20 percent opacity for
more than six minutes in any one hour,
except during the first 15 minutes after
initial firing of the device, when the
opacity limit must be less than 50
percent. The rule also prohibits
operation of the device such that visible
emissions cross property lines. These
opacity limits provide a visual indicator
for the proper operation of a solid fuel
heating device (for a discussion of the
52 Missoula City-County Air Pollution Control
Program, Rule 9.203(1)(a), available at: https://
www.missoulacounty.us/government/health/healthdepartment/administration/regulations-ordinances/
air-pollution-control-program.
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EPA’s SSM policy, see the Proposal).
The EPA proposed to approve this
measure as BACM for this source
category.53
The EPA proposed to approve and
incorporate by reference Alaska’s rule
18 AAC 50.075(f) as BACM because it is
a permanent and enforceable measure
that contributes to attainment of the
2006 PM2.5 24-hour NAAQS. This
provision includes limits on emissions
that apply during all modes of source
operation and impose continuous
emission controls on solid fuel heating
devices consistent with the
requirements of the CAA applicable to
SIP provisions. In addition, the
provision supports progress toward
attainment of the 2006 PM2.5 NAAQS in
the Fairbanks PM2.5 Nonattainment
Area.
The EPA also proposed to find that
the State’s additional removal or render
inoperable restrictions placed on noncertified EPA woodstoves, non-pellet
outdoor hydronic heaters, coal-fired
heating devices, and EPA-certified
woodstoves greater than 25 years old
meet BACM requirements for PM2.5 and
SO2 emissions. Owners of these devices
will need to remove or render them
inoperable by December 31, 2024, or if
a building or residence with such a
device is sold prior to that date (or if a
woodfired heating device is 25 years old
prior to that date).54 The EPA proposed
to find that the other solid fuel burning
regulations adopted by Alaska,
53 The regulation at 18 AAC 50.075(f)(2) specifies
40 CFR part 60, Appendix A, Method 22 as the
monitoring method for determining compliance
with the visible emissions standard in 18 AAC
50.075(f)(1). One of the purposes of Method 22 is
to determine through visual observation the
presence of smoke from a combustion source. 40
CFR part 60, Appendix A–7 Method 22 at Section
1.0. Thus, Method 22 is the appropriate monitoring
method to ensure compliance with this standard.
The regulation does not prescribe mandatory
recordkeeping and reporting obligations. However,
the EPA has determined that this standard is
enforceable as a practicable matter without
mandatory recordkeeping and reporting. The
standard applies to a multitude of area and point
sources, most of which are owned by individuals.
Importantly, Method 22 observations can be made
without special training—thus enabling the owner
and operator of the source, Alaska, the EPA, and
members of the public to readily determine and
enforce compliance without the need for
recordkeeping and reporting. See 40 CFR part 60,
Appendix A–7 Method 22 at Section 2.3.
54 State Air Quality Control Plan, 18 AAC 50.077
(l)–(m).
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including device registration under 18
AAC 50.077(h) and dry wood
requirements for wood sellers 18 AAC
50.076 represent BACM for PM2.5 and
SO2 emissions for the solid fuel burning
source category. These include Alaska
State regulations 18 AAC 50.076 (d–e),
(g), (j–l).
The EPA proposed to disapprove
revisions to 18 AAC 50.076(k) as lacking
sufficient monitoring to be enforceable
as a practical matter and thus meet
BACM and BACT requirements.
Likewise, the EPA proposed to
disapprove the regulations at 18 AAC
50.079(d), (e), and (f) that impose a
removal requirement on owners of coalfired heating devices. The EPA
proposed to disapprove these
regulations because 18 AAC 50.079(d)
allows the owners to test out of the
mandatory removal requirements, 18
AAC 50.079(e) includes an unbounded
waiver provision, and 18 AAC 50.079(f)
does not specify a process to confirm
the device was rendered inoperable.55
The regulations at 18 AAC 50.076(d)–
(e) are registration requirements for
wood sellers, and thus are part of
Alaska’s overall strategy with
monitoring and recording compliance
with the dry wood requirements of 18
AAC 50.076. Alaska ensures compliance
with 18 AAC 50.076(g) through
moisture testing and documentation
requirements. The regulation at 18 AAC
50.076(l) prohibits non-commercial
wood sellers from selling wet wood in
the Fairbanks PM2.5 Nonattainment
Area. Compliance with this prohibition
is monitored and enforced through the
registration requirements in 18 AAC
50.076(d)–(e).
Collectively, the EPA proposed to find
that Alaska met the BACM and BACT
requirements for the solid fuel burning
source category for PM2.5 and SO2
emissions. However, the proposed
approval excluded the dry wood
requirements for wood sellers in 18
AAC 50.076(k) and coal-fired heating
devices in 18 AAC 50.079(d), (e), and
(f), due to the lack of practical
enforceability of the dry wood
requirement and the unbounded
exemptions for the coal-fired heating
devices noted in section II.E.3.i.a of this
preamble. The EPA also proposed to
approve Alaska’s analysis that found no
NH3-specific emission controls for this
source category.
55 Alaska ensures compliance with the
installation and conveyance restrictions and
removal requirements via the registration
requirements in 18 AAC 50.077(h). The regulations
mandate certain recordkeeping and reporting
obligations to ensure the practical enforceability of
the requirements and restrictions in 18 AAC 50.077.
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b. Final Rule
The EPA is finalizing partial approval
of the solid fuel device heating
requirements as BACM. The EPA is
finalizing partial disapproval of Alaska’s
measures regarding dry wood seller
requirements and coal-fired heating
devices. The EPA recommends Alaska
revise 18 AAC 50.076(k)(3) to require a
specific frequency wood sellers are
required to measure the moisture
content of the seller’s wood stock.
Likewise, the EPA also recommends
Alaska revise the regulations at 18 AAC
50.079(d), (e) and (f) to remove (or
revise to BACM and BACT-level
stringency) the testing exemption in (d),
remove or properly bound the waiver
provision in (e), and add requirements
to verify compliance with the
requirement for the owner and operator
to render the device inoperative. Once
Alaska submits a SIP revision resolving
the identified deficiencies, the EPA will
evaluate whether the updated rules
meet BACM requirements.
c. Comments and Responses
Comment: Several commenters
opposed the EPA’s approval of the
State’s control measures on solid fuel
burning devices, specifically wood-fired
heating devices as meeting BACM
requirements for this source category.
Specifically, several commenters
expressed general concern over
restrictions on the sale and use of wood
stoves. Other commenters stated that the
measures should include exemptions for
the elderly, people with financial
difficulty, and people who only live in
the nonattainment area in the summer.
Response: Alaska adopted several
restrictions and requirements for the
sale, distribution, and operation of solid
fuel burning devices in the Fairbanks
Serious Plan and Fairbanks 189(d) Plan.
Specifically, the State has determined
that it is appropriate to include
restrictions on the installation,
reinstallation, sale, leasing, distribution,
and conveyance of solid fuel burning
devices.56 Among other requirements
for this source category, the State has
specified that only stoves that meet
certain emission standards may be sold,
conveyed, or installed in the
nonattainment area.57
In addition, Alaska adopted a
regulation that requires a person who
owns a woodstove or pellet stove that
does not have a valid certification from
the EPA under 40 CFR 60.533 or a nonpellet fueled wood-fired outdoor
hydronic heater shall render the device
inoperable before December 31, 2024; or
56 18
AAC 50.077(a)–(f).
57 Id.
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before the device is sold, leased, or
conveyed as part of an existing
structure, whichever is earlier.58
The EPA’s position is that these, as
well as other, measures are necessary to
control direct PM2.5 emissions and SO2
emissions from the solid fuel heating
device source category. Alaska adopted
these controls after determining that
they are technologically and
economically feasible. As explained in
the Proposal and of this preamble, the
EPA agrees with the State’s
determination that these restrictions are
appropriate and meet BACM
requirements for this source category.
These measures are a critical
component of Alaska’s overall strategy
to phase out older, more polluting wood
stoves for liquid or gas fired heating
devices, or newer, cleaner-burning
stoves. Adoption of these controls was
necessary to satisfy the BACM and
BACT requirements of the CAA and the
overall requirement to achieve
attainment as expeditiously as
practicable.
Comment: One commenter opposed
the dry wood requirements as being too
costly.
Response: The EPA disagrees with the
commenter that the dry wood
requirement is too costly or otherwise
economically infeasible. Alaska adopted
a measure to mandate that users of
wood-fired heating devices only burn
dry wood.59 Alaska also imposed
requirements on commercial wood
sellers to ensure that they sell dry wood
in the Fairbanks PM2.5 Nonattainment
Area.60 Alaska determined that these
measures were technologically and
economically feasible. The EPA concurs
with this assessment. Absent a
determination and supporting
documentation that these measures are
infeasible, neither Alaska nor the EPA
have a basis to not adopt and implement
these measures as necessary
components of the control strategy
required by the CAA.
Comment: Several comments opposed
the EPA’s approval of the control
measures for solid fuel burning devices,
arguing that Alaska should instead ban
all wood stoves in the nonattainment
area.
Response: As part of development of
the Fairbanks Serious Plan, Alaska
specifically assessed the feasibility of
banning woodstoves all together 61 and
the feasibility of banning woodstoves in
58 18
AAC 50.077(l).
AAC 50.076.
60 18 AAC 50.076(g).
61 ADEC also reviewed this measure as part of
development of the Moderate Area Plan.
59 18
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new construction.62 In both cases
Alaska determined these bans were not
technologically or economically
feasible. The EPA reviewed these
determinations and concurs with
Alaska’s determinations. The EPA
agrees with Alaska’s determination that
residents require the option of heating
their homes with wood—thus both bans
are technologically infeasible at this
time. There are many residents whose
only source of heat in the winter is
wood. Alaska and several commenters
pointed out that the area experiences
power outages in the winter that
necessitate use of a space heating device
that does not need electricity to operate.
While natural gas is available in the
nonattainment area, and access has
increased in recent years, it remains
significantly limited across the
nonattainment area.
The EPA notes that, in lieu of
woodstove bans, Alaska adopted a suite
of controls on solid fuel burning
devices, including the woodstove
curtailment program.63 Under the
curtailment program, Alaska issues burn
bans based on forecasted concentrations
of PM2.5. Once Alaska issues a burn ban,
wood stove operators must withhold
fuel from wood stove devices (other
than exempt devices) and ensure that
combustion has ceased within three
hours of the effective time of the
declaration.64
Comment: One commenter opposed
the EPA’s approval of the woodstove
curtailment program as meeting BACM
requirements. The comment asserted
that the program cannot meet BACM
requirements because Alaska does not
adequately enforce the program.
According to the commenter, Alaska
estimated the compliance rate for the
program in 2019 was 30 percent and
will achieve 45 percent by 2024. The
commenter also stated that meaningful
enforcement could be accomplished by
granting the Alaska Department of
Environmental Conservation citation
authority. The commenter also argued
that Alaska’s current ‘‘three-strikes’’
approach to enforcement is ineffective
and does not deter noncompliance.
Finally, the commenter argued that the
EPA should not approve the woodstove
curtailment program as meeting BACM
requirements without further assurances
from the State that it will practice
meaningful enforcement.
Response: The EPA disagrees with the
commenter that the woodstove
62 See State Air Quality Control Plan, Vol. III,
Appendix III.D.7.7–62.
63 18 AAC 50.075(e); 18 AAC 50.030(a); State Air
Quality Control Plan Vol. II, Chapter III.D.7.12.
64 18 AAC 50.075(e)(3).
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curtailment program, as adopted via 18
AAC 50.075(e) and the Fairbanks
Emergency Episode Plan, does not meet
the requirements for BACM for the solid
fuel burning emission source category.
Consistent with 40 CFR 51.1010(a)(2),
the State identified the curtailment
program and corresponding curtailment
thresholds through surveying other
NAAQS nonattainment areas. In
reflection of lower curtailment
thresholds adopted in other
jurisdictions, the State lowered the
curtailment thresholds—making the
measure more stringent than the
measure submitted as part of the
Fairbanks PM2.5 Moderate area plan
(Fairbanks Moderate Plan) to meet
RACM requirements.65 Thus, the
woodstove curtailment program meets
the requirements as BACM for the
wood-fired heating device emission
source category. Since adoption, Alaska
has employed a model to forecast days
with high PM2.5 concentrations,
regularly issued Stage 1 and Stage 2
alerts, monitored compliance, and
issued notices of noncompliance.66
Alaska issues compliance letters,
advisory letters, and Notice of Violation
letters each year. During the 2021–22
winter season, Alaska sent 136
compliance or advisory letters.67 Thus,
Alaska is implementing the measure.
With respect to compliance, the EPA
understands the commenter’s concern
that there is insufficient compliance and
that compliance can affect the
effectiveness of a control measure.
Alaska is likewise aware of issues
regarding compliance, and has taken
steps to try to assure better compliance.
When assessing whether a specific
control measure meets BACM
requirements, however, the EPA is
evaluating whether the measure as
formulated meets applicable stringency
requirements and other requirements for
SIP provisions, including that the
measure is legally and practically
enforceable. A lack of total compliance
(actual or projected) does not
65 82
FR 42457, September 8, 2017.
Alaska Department of Environmental
Conservation (ADEC) Curtailment and Alerts in the
Fairbanks North Star Borough Nonattainment Area,
available at https://dec.alaska.gov/air/anpms/
communities/fbks-pm2-5-curtail-alert/. See also,
State Air Quality Control Plan Vol. II, Chapter
III.D.7.12 Fairbanks Emergency Episode Plan. See,
e.g., Alaska Department of Environmental
Conservation, Division of Air Quality, FNSB Air
Quality Stage 2 Alert, March 1, 2019 (included in
Docket).
67 2nd Annual Report, Air Quality Control
Program Implementation Status, Fairbanks North
Star Borough PM2.5 Nonattainment Area, Alaska
Department of Environmental Conservation and
Fairbanks North Star Borough, available at: https://
dec.alaska.gov/air/anpms/communities/progressannual-reports/.
66 See
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84639
necessarily disqualify a measure as
BACM. Concerns about compliance
rates with the requirement are reflected
in other ways, such as in the amount of
SIP emissions reduction credit the State
claims and the EPA provides for a given
measure (e.g., a measure with 50 percent
compliance receives 50 percent credit
towards other requirements such as the
attainment projected emissions
inventory, RFP, QMs, and the modeled
attainment demonstration). In addition,
consistent with CAA section
110(a)(2)(C), States are required to have
a program to enforce SIP requirements.
Similarly, the EPA determined that the
State met the requirements for CAA
section 110(a)(2)(E) with respect to
adequacy of State legal authority,
personnel, and resources need to
implement the SIP. The EPA
determined that Alaska satisfied these
requirements in its latest approval of the
State’s PM2.5 infrastructure SIP
submission.68 We note that a State’s
failure to implement a control measure
could be the basis for a finding under
CAA section 179 and that is likely the
more appropriate authority to address
any failure to enforce SIP measures. The
EPA has made no such finding for
Alaska, generally, nor the Fairbanks
PM2.5 Nonattainment Area, specifically.
Comment: One commenter questioned
why use of electrostatic precipitators
(ESPs) is not part of the control strategy.
Response: Alaska and the Fairbanks
North Star Borough (FNSB) reviewed a
requirement to install ESPs on
woodstoves as part of its BACM analysis
in the Fairbanks Serious Plan.69 In the
Fairbanks Serious Plan, the State also
included a summary of current ESP
requirements and the FSNB’s research
and assessment of the feasibility of
using ESPs.70 Ultimately, Alaska
determined that requiring installation of
ESPs was technologically infeasible. In
addition, Alaska raised concerns that
exempting persons who install ESPs
from having to comply with the
curtailment program would be less
stringent than the current requirements.
The EPA proposed to approve
Alaska’s determination that requiring
ESPs is not technologically feasible. The
EPA is finalizing this approval as
proposed. Alaska’s feasibility
assessment identified several
technological challenges to
68 Air Plan Approval; AK: Fine Particulate Matter
Infrastructure Requirements, 83 FR 60769,
November 27, 2018, at p. 60771.
69 State Air Quality Control Plan, Volume III,
Appendix III.D.7.07, at pp. 109–110, Adopted
November 19, 2019.
70 State Air Quality Control Plan, Volume II,
Chapter III.D.7.07 at pp. 101–103, adopted
November 19, 2019.
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implementing the measure, including
lack of professional installers, lack of
standard performance certification
methods, frequent system degradation,
and frequent maintenance requirements
from trained professionals.71 The
comment does not provide information
to call Alaska’s assessment into
question. Alaska and the FNSB may
continue to research the feasibility and
efficacy of ESPs and potentially
incorporate a requirement to install and
operate ESPs into a future plan. Any
future SIP revisions, however, must be
consistent with CAA section 110(l).
Comment: One commenter requested
that the EPA not approve the
requirement to destroy woodstoves. The
commenter asserted that backup heating
sources are necessary. The commenter
requested that the SIP allow change-outs
without the need to destroy the existing
woodstove.
Response: The EPA disagrees with
these comments. First, in this action the
EPA is evaluating the specific suite of
control measures that the State
identified, adopted, and submitted to
the EPA to meet the BACM requirement
for this source category. The EPA does
not have the authority under the CAA
to modify a SIP submission unilaterally
or to disapprove a SIP provision in
whole or in part on the basis of it being
too stringent.72 Second, the
requirements that older, uncertified
devices be rendered inoperable are an
important component of Alaska’s
control strategy in the Fairbanks Serious
Plan and Fairbanks 189(d) Plan.73
Alaska’s SIP requires, in pertinent part,
that a person who owns a device that
may not be reinstalled within the area
to ensure the device is rendered
inoperable when it is removed. The EPA
agrees that this approach is
technologically and economically
feasible and is appropriate to assure that
necessary emission reductions from this
source category actually occur.
Alaska has also identified, adopted,
and submitted provisions that requires
an owner of a woodstove or pellet stove
that does not have a valid certification
from the EPA or a non-pellet fueled
wood-fired hydronic heater to render
the device inoperable before December
1, 2024, or before the device is sold,
leased, conveyed as part of an existing
structure, whichever is earlier. In each
instance, the State has determined that
the requirement to render the device
inoperable is important to ensuring the
71 State Air Quality Control Plan Vol. III,
Appendix III.D.7.7 at pp. 134–135.
72 See CAA sections 110(k) and 116, 42 U.S.C.
7410(k) and 7416; see also Union Elec. Co. v. EPA,
427 U.S. 246, 256–257 (1976).
73 See 18 AAC 50.077(l)–(m); 18 AAC 50.079(f).
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emissions reductions are permanent and
that older, uncertified devices are not
reinstalled in a home or business.
Again, the EPA agrees that this
approach is technologically and
economically feasible and is appropriate
to assure that necessary emission
reductions from this source category
actually occur.
In addition, the FNSB operates a
Wood Stove Change Out Program using
EPA Targeted Airshed Grant funding.74
A requirement to receive reimbursement
for the new stove or furnace is to turn
in the old device for recycling and to
submit a Deed Restriction that restricts
future installations of wood, pellet, and
coal burning appliances on the
property.75 The conditions are
important components to ensuring the
integrity of the Wood Stove Change Out
Program and the permanence of
emissions reductions.
Comment: Several commenters
suggested additional controls for the
solid fuel heating device source sector
including utilizing temperature sensors
on woodstove flues to ensure
compliance with the curtailment
program and switching energy
generation from fossil fuels to solar,
hydro, and nuclear.
Response: The EPA understands the
perspective of the commenters, but the
commenters do not provide any specific
support or explanation for why the
additional measures they advocate are
technologically or economically feasible
as BACM measures in the Fairbanks
PM2.5 Nonattainment Area. In this
action, the EPA is evaluating whether
the control measures that the State has
identified, adopted and submitted
constitute BACM for this source
category. Alaska conducted a review of
available controls for the solid fuel
heating device source category and did
not identify temperature sensors or
converting to renewable energy
generation as potential control measures
in the nonattainment area. Alaska’s
BACM identification and evaluation
process for the solid fuel burning source
category meets CAA requirements.
Based on the analysis in the Fairbanks
Serious Plan and the Fairbanks 189(d)
Plan, the EPA has concluded that the
existing measures do meet BACM and
does not agree that the additional
74 For information on the EPA’s Targeted Airshed
Program, see: https://www.epa.gov/air-qualityimplementation-plans/targeted-airshed-grantsprogram.
75 Voluntary Solid Fuel Burning Appliance
Change Out Program Application, available at
https://www.fnsb.gov/DocumentCenter/View/811/
WoodPelletCoal-Appliance-Change-Out-ProgramApplication-PDF.
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control strategies that the commenter
suggest are required at this time.
To the extent that more measures may
be required for attainment and
maintenance of the NAAQS in this area
in the future, the commenters may wish
to continue to advocate for them in
future SIP development processes. In
addition, consistent with CAA section
116, Alaska has authority to adopt
measures that are more stringent than
required under the CAA, within certain
limitations, and may elect to do so.
ii. Residential and Commercial Fuel Oil
Combustion
a. Summary of Proposal
In order to satisfy the SO2 BACM and
BACT requirements for the residential
and commercial fuel oil combustion
source category, Alaska adopted the
regulation at 18 AAC 50.078(b) that
imposes a limit of 1,000 parts per
million sulfur (diesel #1) for residential
and commercial heating. This is a
switch from the currently available
diesel #2 (approximately 2,000 parts per
million sulfur) to diesel #1. However, as
part of its BACM analysis, Alaska
identified 10 other States and large
municipal areas that have instituted
ULSD home heating requirements and
found this measure to be technologically
feasible and economically feasible at a
cost of $1,819 per ton SO2 removed (SO2
is a significant precursor in the
Fairbanks nonattainment area). Alaska
provided a number of community-based
considerations were Fairbanks to
undergo the switch from diesel #2 to
ULSD. These considerations included
potential collateral environmental
impacts caused by greater fuel
transportation requirements required to
maintain an adequate ULSD supply in
the Fairbanks PM2.5 Nonattainment Area
through the winter months.
The EPA noted that a State must
adopt and implement an identified
BACM unless the State demonstrates the
potential measure is either
technologically or economically
infeasible. Alaska identified the ULSD
requirement as BACM for this source
category and its own analysis indicates
this requirement is feasible. While the
EPA acknowledged in the Proposal that
implementing a fuel switch from #2 to
ULSD may be challenging, The EPA also
stated that the challenges identified by
Alaska in the Fairbanks Serious PM2.5
and the Fairbanks Section 189(d) Plan
were insufficient to support an
infeasibility demonstration. The EPA
stated in the Proposal that this is
particularly so when many jurisdictions
have successfully required ULSD as a
control measure. The EPA also noted in
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the Proposal that reducing SO2
emissions from this source category is
particularly important to achieving
expeditious attainment because
conversions to liquid-fueled heating
devices constitute the vast majority of
activity in the woodstove changeout
program. Thus, we proposed to
disapprove Alaska’s determination that
the less stringent control measure
imposing only the requirement to use
diesel #1 under 18 AAC 50.078(b) meets
BACM requirements for PM2.5 and SO2
emissions. However, we proposed to
approve Alaska’s analysis that found no
NH3-specific emission controls for this
source category.
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b. Final Rule
Based on comments received, the EPA
is finalizing approval of portions of the
Fairbanks Serious Plan and Fairbanks
189(d) Plan, pertaining to the regulation
at 18 AAC 50.078(b), as meeting the SO2
BACM and BACT requirements for the
residential and commercial fuel oil
combustion source category. The EPA
received significant comments,
including a revised economic feasibility
analysis from Alaska, that demonstrate
that requiring ULSD for this source
category is not economically feasible at
this time. However, as discussed in
detail in, Section II.D.7 of this preamble,
this measure appears to be feasible as a
contingency measure that, if adopted,
could partially rectify deficiencies in
the contingency measures submitted as
part of the Fairbanks Serious Plan and
Fairbanks 189(d) Plan.
c. Comments and Responses
The EPA summarizes major
comments and responses below. For a
detailed summary of relevant comments
and the EPA’s responses on this
requirement, see the Response to
Comments document included in the
docket for this action.76
Comment: Several commenters
questioned the technological feasibility
of mandating ULSD use for the
residential and commercial fuel oil
combustion source category. These
commenters argued that supplying
sufficient ULSD to interior Alaska was
not logistically feasible considering
constrained rail and highway capacity.
Response: The EPA disagrees that
requiring the use of ULSD for the
residential and commercial fuel oil
combustion source category is
76 Response to Comments Regarding Best
Available Control Measure Requirements for
Residential and Commercial Fuel Oil Combustion
on the Air Plan Partial Approval and Partial
Disapproval; AK, Fairbanks North Star Borough;
2006 24-hour PM2.5 Serious Area and 189(d) Plan
EPA–R10–OAR–2022–0115.
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technologically infeasible. In the
Fairbanks Serious Plan and Fairbanks
189(d), Alaska evaluated the logistical
challenges but at that time Alaska
concluded that this measure was
technologically feasible.77 While Alaska
updated this information, we do not
find that the updated information is
sufficient to determine that the States’
initial technological evaluation was
flawed.
There are already sources in the
Fairbanks PM2.5 Nonattainment Area
that are currently using ULSD fuel, so it
is self-evident that it is technologically
and logistically feasible for some
amount of this fuel to be available
today. Based on the comments, there
appear to be options available to
minimize wintertime logistical and
supply issues. To address supply
concerns, Alaska did evaluate the
potential for building local storage.
Commenters have asserted that refining
ULSD locally has economic challenges,
but we have not received any economic
data to support this assertion.
Comment: As part of its comments,
Alaska submitted a revised economic
feasibility assessment for mandating
ULSD for this source category. In total,
Alaska made eight distinct revisions to
the cost-effectiveness analysis that
Alaska submitted for ULSD with the
Fairbanks 189(d) Plan. For example,
Alaska updated the fuel use impacts
from switching from 2,000ppm sulfur
fuel to ULSD and changes in price
premium for ULSD. Considering a
number of scenarios in Alaska’s updated
analysis, Alaska revised its BACM
determination to state that ULSD costeffectiveness was calculated to range
from $58,252 per SO2 ton removed
under low baseline oil market prices to
$73,816 per SO2 ton removed under
high baseline oil market price
conditions that currently exist in early
2023.
Response: The EPA evaluated
Alaska’s methodology for producing its
cost effectiveness calculation submitted
as part of its comments. The EPA agrees
with some of Alaska’s methods and
variables and disagrees with others. The
EPA produced a separate cost
effectiveness calculation that builds off
Alaska’s comment, but incorporates
only those methods and variables that
the EPA determined are reasonable and
well supported. The EPA’s cost
effectiveness calculation is located in
the docket for this action.78
77 State Air Quality Control Plan, Vol. III,
Appendix III.7.7–5396, adopted November 18,
2020.
78 See the EPA FR Technical Support
Document—ULSD residential and commercial fuel
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Overall, the EPA’s updated cost
effectiveness analysis leads to an overall
cost ranging from $13,046 and $22,893
per SO2 ton removed. The lower-end of
the range reflects incorporation of
Alaska’s estimate of individuals
substituting fuel use for wood use—thus
reducing overall ULSD expenses—in
reaction to the price increase associated
with using ULSD. The upper-end of the
range does not incorporate this estimate.
Given the variability in fuel prices and
speculative basis for estimating
residents’ economic behavior given the
ULSD mandate, the EPA believes that
the upper-end of the estimate reflects
more accurate and conservative
assumptions about the cost effectiveness
of mandating ULSD.
iii. Small Commercial Area Sources
a. Summary of Proposal
Alaska identified BACM and BACT
requirements for small area source
categories as part of the Fairbanks
Serious Plan and then updated those
findings as part of the Fairbanks 189(d)
Plan.
Alaska adopted a control measure for
coffee roasters at 18 AAC 50.078(d) that
required installation of an emissions
control device unless the coffee roaster
can demonstrate technological or
economical infeasibility. In the
Proposal, the EPA stated that, as
written, the State rule purporting to
implement this measure does not appear
to be enforceable as a practical matter.
The rule does not require use of
emissions controls once installed,
specify any emission limits, nor
monitoring requirements with which
the subject sources must comply. In
addition, the rule contains a waiver
provision based on the facility
providing information demonstrating
that the control technology is
technologically or economically
infeasible. This provision is not
adequately specific or bounded and,
thus, may bar effective enforcement (see
81 FR 58010, August 24, 2016, at p.
58047). In addition, the State must
adopt permanent and enforceable
control measures for this source
category even if certain sources within
the source category have existing
emissions controls. Therefore, the EPA
proposed to disapprove Alaska’s
determination that 18 AAC 50.078(d)
satisfies BACM for coffee roasters.
Alaska required commercial
charbroilers to submit information to
Alaska related to the type, operation,
and performance of the device as part of
oil combustion, included in the docket for this
action.
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the Fairbanks Serious Plan.79 Based on
the information provided, Alaska then
conducted an economic analysis as part
of the Fairbanks 189(d) Plan that
assessed the cost of installing an
available control measure, catalytic
oxidizers, on each of the charbroilers in
the nonattainment area. The State
estimated the cost of installing catalytic
oxidizers at $47,786 per ton of PM2.5
removed (adjusted to 2019 dollars).
Thus, Alaska ultimately determined that
BACM is economically infeasible for
this source.
While the EPA found that Alaska’s
economic analysis is a reasonable
estimate of the cost of installing one
potential emission control device,
Alaska did not evaluate all available
control measures. Currently available
emission control devices include
electrostatic precipitators (ESP), wet
scrubbers, and filtration.80 Moreover,
Alaska did not explain whether there
are chain-driven or underfire
charbroilers in the Fairbanks
Nonattainment Area, which have
different considerations for emission
controls.81 Therefore, the EPA proposed
to disapprove Alaska’s evaluation of,
and BACM determination for,
charbroilers.
Alaska identified and evaluated the
prohibition of used oil burners as a
potential BACM-level control measure.
Alaska issued a regulation at 18 AAC
50.078(c) requiring owners and
operators of used oil burners to provide
certain information to assist Alaska in
evaluating the feasibility of imposing
the prohibition. Ultimately, Alaska did
not adopt and submit any controls on
used oil burners as part of the Fairbanks
Serious Plan or Fairbanks 189(d) Plan.
Alaska updated the BACM analysis in
the Fairbanks 189(d) Plan to address
environmental impacts if used oil
burning were restricted in the Fairbanks
PM2.5 Nonattainment Area. According to
the State, the only way to dispose of
79 18
AAC 50.078(c).
Gysel, et al. (2018). Particulate matter
emissions and gaseous air toxic pollutants from
commercial meat cooking operations. Journal of
Environmental Sciences, 65, 162–170; Yang, et al.
(2021). Transient plasma-enhanced remediation of
nanoscale particulate matter in restaurant smoke
emissions via electrostatic precipitation.
Particuology 55, 43–47; New York City Department
of Environmental Protection (February 2021).
Certified Emission Control Devices for Commercial
Under-Fired Char Broilers. Available at https://
www1.nyc.gov/assets/dep/downloads/pdf/air/
approved-under-fired-technology.pdf; Francis &
R.E. Lipinski (2012). Control of Air Pollution from
Restaurant Charbroilers. Journal of the Air Pollution
Control Association, 27:7, 643–647, available at:
https://doi.org/10.1080/00022470.1977.10470466.
81 Yang, et al. (2021). Transient plasma-enhanced
remediation of nanoscale particulate matter in
restaurant smoke emissions via electrostatic
precipitation. Particuology, 55, pages 43–47.
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80 See
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used oil in the nonattainment area is
through burning and that limiting this
disposal method would likely lead to
dumping the used oil on land or water.
While one factor the State may consider
in demonstrating the technological
infeasibility of a measure is collateral
environmental impacts, the EPA stated
in the Proposal that Alaska’s evaluation
is insufficient to demonstrate that
prohibiting used oil burners is
technologically infeasible. Notably,
illegal dumping of used oil is prohibited
under State and Federal laws.82 Thus,
the State and the EPA have a basis for
preventing or mitigating any
environmental impacts that may result
from prohibiting used oil burning. The
EPA indicated that requiring used oil
generators to collect and ship used oil
to a central disposal facility appears
feasible. Because Alaska imposed no
controls on this source category and did
not adequately demonstrate that BACM
for this emission source is
technologically or economically
infeasible, we proposed to disapprove
Alaska’s BACM evaluation and
determination for use oil burners.
Similarly, incinerators are another
source category subject to the
information requirements under 18 AAC
50.078(c). However, after receiving
information related to this source
category, Alaska determined that there
are no emission sources identified as
incinerators in the Fairbanks
nonattainment area and thus, evaluation
of emissions controls is not necessary.
We proposed to find that Alaska
reasonably determined that there were
no affected sources for this source
category, therefore Alaska did not need
to identify, adopt, or implement BACM
and BACT for this source category in the
Fairbanks PM2.5 Nonattainment Area.
Overall, for small commercial area
sources, we proposed to approve
Alaska’s BACM determination for
incinerators (18 AAC 50.078(c)(2)). We
proposed to disapprove Alaska’s BACM
determination for coffee roasters,
charbroilers, and used oil burners for
the reasons stated above (18 AAC
50.078(c)(1); 18 AAC 50.078(c)(3); 18
AAC 50.078(d)).
b. Final Rule
The EPA is finalizing approval of
Alaska’s BACM determination for
incinerators. Based on comments
received, the EPA is also finalizing
approval of Alaska’s BACM
determination for charbroilers and used
oil burners. By extension, the EPA is
approving 18 AAC 50.055 as PM2.5
BACM and BACT for the chairbroiler
82 18
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source category. The EPA is finalizing
disapproval of Alaska’s BACM
determination for coffee roasters.
c. Comments and Responses
Comment: Several commenters
generally opposed the EPA’s proposed
disapproval of Alaska’s determinations
with respect to small commercial areas
sources on various grounds, including
that these sources are insignificant
contributors to pollution; focusing staff
resources on evaluating controls on
these sources diverts attention to
addressing major contributors, such as
woodstoves; and review of these sources
would not be necessary if the EPA better
administered the wood heater NSPS.
Response: The EPA disagrees with
these comments. First, under the CAA
and PM2.5 SIP Requirements Rule,
BACM and BACT are required for all
sources of direct PM2.5 and PM2.5
precursors. In the PM2.5 SIP
Requirements Rule, the EPA expressly
determined that given the nature of
PM2.5 that typically results from the
combined emissions of many sources of
direct PM2.5 and PM2.5 precursors that in
the aggregate contribute to
nonattainment, there should be no de
minimis source category exemption.83
Thus, even accepting the commenter’s
assertion that these small commercial
areas sources are insignificant
contributors to the overall
nonattainment problem in Fairbanks,
that would not be a valid basis for not
identifying, adopting, and implementing
BACM and BACT on these sources.
Second, the EPA acknowledges that
evaluating potential controls on these
sources takes time and requires staff
and/or contractor resources. For this
reason, the EPA engaged with ADEC
early in the SIP development process for
the Fairbanks Serious Plan and
Fairbanks 189(d) Plan to provide
guidance on these requirements so that
ADEC would have the maximum
amount of time to fulfill its obligations.
The EPA disagrees, though, that
evaluating controls, adopting
regulations, and implementing and
enforcing those regulations are mutually
exclusive. The CAA requires that States
with a PM2.5 nonattainment area to
identify, adopt, and implement BACM
and BACT. Moreover, the CAA requires
that the State provide necessary
assurances that, inter alia, it has
adequate personnel, funding, and
authority to carry out the SIP. Thus,
Alaska was aware of the extent of its
analytical, rulemaking, and enforcement
obligations and ought to retain sufficient
personnel to carry out those obligations.
83 81
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To the extent Alaska is reflecting on the
burden of satisfying its obligations in
the context of comments submit of this
rulemaking, the EPA reiterates that it
apprised Alaska of these obligations
long before the instant action. Moreover,
the EPA repeated the CAA BACM and
BACT requirements in two comment
letters submitted as part of the State’s
public comment processes for the
Fairbanks Serious Plan and Fairbanks
189(d) Plan.84
Third, the EPA disagrees with the
commenters’ assertion that evaluating
and imposing controls on small
commercial area sources would not be
necessary if the EPA better implemented
the wood heater NSPS. The CAA and
PM2.5 SIP Requirements Rule required
Alaska to implement BACM and BACT
regardless of whether the EPA issued
any NSPS for wood heaters. Moreover,
BACM and BACT is generally
independent of attainment needs. Thus,
implementation of the NSPS does not
alter Alaska’s BACM and BACT
obligations under the CAA.
Comment: Alaska asserted that, based
on monitoring data, Alaska’s control
strategy has made significant progress
towards attainment.
Additionally, some commenters
referenced the improvement in air
quality based on measured
concentrations at the monitors in the
Fairbanks PM2.5 Nonattainment Area.
Commenters specifically noted that
concentrations have been cut in half
generally and are below the NAAQS at
the ‘‘downtown’’ monitor. There are
three regulatory monitors currently
operating in the Fairbanks PM2.5
Nonattainment Area: Hurst Road, A
Street, and NCore. The Hurst Road
monitor, located in North Pole, has
historically measured the highest
concentrations of PM2.5. The EPA
acknowledges that measured
concentrations of PM2.5 at the Hurst
Road Monitor have declined from 158
mg/m3 in 2012 to 72 mg/m3 based on
2019–2021 data.
Response: The EPA disagrees with the
comment that the ‘‘downtown’’ monitor
is measuring attainment of the NAAQS.
The most recent monitor data at the
NCore monitoring station, arguably the
closest air quality monitor to the City of
84 ‘‘EPA Comments on 2020 Department of
Environmental Conservation (DEC) Proposed
Regulations and SIP Amendments’’ Letter from
Krishna Viswanathan, Director, EPA Region 10 Air
and Radiation Division to Alice Edwards, Director,
ADEC Division of Air Quality, October 29, 2020;
‘‘EPA Comments on 2019 DEC Proposed
Regulations and SIP—Fairbanks North Star Borough
Fine Particulate Matter’’ Letter from Krishna
Viswanathan, Director, EPA Region 10 Air and
Radiation Division to Alice Edwards, Director,
ADEC Division of Air Quality, July 19, 2019.
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Fairbanks’ downtown area, indicate
concentrations of 43 mg/m3. The A
Street monitor, located in a portion of
Fairbanks of expected maximum PM2.5
concentrations, has not yet established
an official 3-year Design Value to
compare to the NAAQS. More
importantly, however, all regulatory
monitors in a nonattainment area must
have three-year design values at or
below the standard for the EPA to issue
a Clean Data Determination or
redesignate the area to attainment.85 In
addition, neither the A Street nor NCore
monitoring stations have a complete
three-year design value below the
NAAQS. Finally, the EPA notes that
Alaska established the A Street monitor
location as a SLAMS PM2.5 monitoring
station to characterize expected
maximum concentrations in the
Fairbanks portion of the Fairbanks PM2.5
Nonattainment Area. Thus, the A Street
monitoring station, rather than the
NCore monitoring station is more
representative of expected maximum
concentrations in the Fairbanks portion
of the nonattainment area. Finally, the
EPA notes that an area’s progress
towards attainment does not affect the
CAA’s nonattainment planning
obligations, particularly the BACM and
BACT requirements. By extension, the
BACM and BACT requirements are not
suspended with a Clean Data
Determination issued under 40 CFR
51.1015.86 Thus, to the extent the
commenters are suggesting that the
control strategy in the Fairbanks Serious
Plan and Fairbanks 189(d) Plan meet
CAA requirements by virtue of
reductions in measured air quality, EPA
disagrees.
Comment: In its comments on the
Proposal, Alaska proposed to develop a
new regulation, replacing 18 AAC
50.078(d), to address the EPA’s concerns
and make its coffee roaster controls
enforceable. Alaska plans to create a
new regulation that will address the
EPA’s concerns and be submitted in a
future SIP revision. The regulation will
be structured as a ‘permit-by-rule’
which will contain substantive
requirements that apply to coffee
roasters over the 24 pounds per year
emission threshold.
Alaska further noted that the coffee
roasters in the Fairbanks PM2.5
85 40 CFR 50.13(a) & (c); 40 CFR part 50,
Appendix N, Section 3.0(a); 40 CFR 51.1015.
86 40 CFR 51.1015(b) (‘‘Upon a determination by
the EPA that a Serious PM2.5 nonattainment area
has attained the PM2.5 NAAQS, the requirements for
the state to submit an attainment demonstration,
reasonable further progress plan, quantitative
milestones and quantitative milestone reports, and
contingency measures for the area shall be
suspended.’’).
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Nonattainment Area emit a very small
amount of direct PM2.5—far less than the
solid fuel burning device source
category. By extension, Alaska
commented that spending time and
resources on regulating coffee roasters
diverts limited resources away from
addressing the more significant sources
of pollution and ultimately hinders
expeditious attainment.
Response: The EPA proposed
disapproval of Alaska BACM
determination for coffee roasters
because the State rule applicable to this
source category, 18 AAC 50.078(d), was
not enforceable as a practical matter.
The EPA appreciates that Alaska
indicated in its comments that the State
is planning to address the identified
deficiencies in this rule in a manner that
meets BACM and BACT requirements
and provides for basic enforceability.
The EPA will evaluate the merits of the
revised rule when the State submits it
to the EPA as a SIP revision. The rule
before the EPA remains insufficient for
BACM and BACT purposes and we are
finalizing the disapproval of this
specific rule because it does not meet
the BACM and BACT requirement.
Comment: In comments, Alaska
revised its prior analysis of charbroilers
located in the Fairbanks PM2.5
Nonattainment Area and updated its
cost analysis for emission controls.
Alaska examined survey responses and
queried other agencies to determine
which types of charbroilers are present
in the nonattainment area and found
that only underfired charbroilers are
present. As such, Alaska amended its
analysis because it previously analyzed
the cost-effectiveness of catalytic
oxidizers, but that control technology is
not viable for underfired charbroilers.
Alaska stated that, based on the EPA’s
suggestion and its review of the
literature and other SIPs, ADEC
evaluated the feasibility of electrostatic
precipitators (ESPs), wet scrubbers, and
filtration as potential control
technologies for underfired charbroilers.
Alaska stated that the EPA did not
incorporate the visible emission limits
in 18 AAC 50.055 as being part of BACT
for charbroilers despite Alaska’s
inclusion of that regulation in its
description of BACM for this emission
category. Alaska further commented that
the EPA must evaluate 18 AAC 50.055
as part of BACM for the underfired
charbroilers in the Fairbanks PM2.5
Nonattainment Area.
Alaska noted that, although Alaska
believes this technology can be properly
dismissed under Step 3 of the BACM
analysis (related to technological
infeasibility), Alaska also evaluated the
economic feasibility of ESPs, wet
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scrubbers, and filtration as BACM for
underfired charbroilers. ADEC analyzed
the cost-effectiveness of these control
technologies based on the most
comprehensive economic analysis
available, which was developed by the
San Joaquin Valley Air Pollution
Control District (SJVAPCD).87 Alaska
adjusted the costs for inflation and the
difference in labor costs between
California and Alaska, plus projected
shipping costs from the continental
United States to Alaska.
Alaska stated that, according to
SJVAPCD, it reported combined costs
for ESP and filtration technologies as a
range rather than a single number due
to the variables involved in the cost
estimates, including equipment type,
simple or complicated configuration,
age of the restaurant’s infrastructure,
and more. Installing new controls on
existing restaurants can be expensive,
requiring structural, electrical, or
plumbing modifications, compared to
new restaurants that can integrate
emission controls into the design. Based
on SJVAPCD’s reasoning, Alaska chose
to use this same approach of presenting
cost-effectiveness as a range rather than
as a single number.
For the Fairbanks PM2.5
Nonattainment Area, Alaska found the
range of cost-effectiveness for installing
an ESP for an underfired charbroiler to
be between $41,467 and $528,940 per
ton of PM2.5 removed, based on a
removal efficiency of 86 percent. Alaska
found the range of cost-effectiveness of
installing a filtration system for an
underfired charbroiler to be between
$44,577 and $568,610 per ton of PM2.5
removed, based on a removal efficiency
of 80 percent.
Alaska stated that the costeffectiveness analysis for filtration
represents wet scrubbers, because wet
scrubbers require filtration. Alaska
stated that a wet scrubber is essentially
a fine stream of water and detergent that
washes the particulates from the
underfired charbroiler’s exhaust, which
passes through a filtration system before
discharging to the sewer. Therefore,
Alaska stated that the cost estimates
developed for ESP and filtration systems
conservatively represent the cost
estimates for wet scrubbers, because wet
scrubbers are an additional cost
upstream of filtration systems.
87 Review of the San Joaquin Valley 2018 Plan for
the 1997, 2006, and 2012 PM2.5 Standards,
California Air Resources Board, Staff Report,
December 21, 2018; Revision to the California State
Implementation Plan for PM2.5 Standards in the San
Joaquin Valley, California Air Resources Board,
Staff Report, April 24, 2020. Both documents are
included in the docket for this action.
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Alaska stated that its review
demonstrates that control measures for
underfired charbroilers are
technologically and economically
infeasible for the Fairbanks PM2.5
Nonattainment Area. Alaska based its
prior analysis on chain-driven
charbroilers and found that catalytic
oxidizers were technologically but not
economically feasible as BACM.88
Updated information and further
research indicated the presence of only
underfired charbroilers in the
nonattainment area, and the controls for
underfired charbroilers are different.
Alaska evaluated the technological and
economic feasibility analysis for ESP,
filtration systems, and wet scrubbers for
underfired charbroilers and found all
controls to be technologically and
economically infeasible as BACM.
Response: In the Proposal, the EPA
explained that the State had not
adequately identified and evaluated
potential control measures for this
source category. For example, the State’s
analysis did not identify the types of
charbroilers located in the Fairbanks
PM2.5 Nonattainment Area. Similarly,
the State did not consider and evaluate
different forms of control measures that
exist for each of the two kinds of
charbroilers. Instead, the State only
identified one potential control measure
for one type of source and claimed this
this one form of control measure would
not be economically feasible. Thus, the
EPA explained that the State had not
properly identified, evaluated, and
adopted control measures to meet the
BACM requirement for this source
category.
Comments on the Proposal provided
by Alaska have filled the analytical
gaps. Alaska has gathered additional
information to determine that all
existing charbroilers in Fairbanks are
underfired charbroilers. ADEC sent
letters to restaurants requesting
information on charbroilers at each
establishment. Of all those who
responded that the restaurant had a
charbroiler, all stated that they were
underfire charbroilers. Alaska further
confirmed with the Alaska Department
of Environmental Conservation’s
Environmental Health Division, State
Fire Marshalls, and third-party
inspectors that there were no chaindriven charbroilers in the area. The
State also identified the range for
potential control measures for this type
of source, including an ESP, wet
scrubber, or filtration, based on findings
from San Joaquin Valley Air Pollution
Control District staff reports. Alaska
88 Note, in the Proposal, the EPA proposed to
concur with this aspect of Alaska’s analysis.
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noted that The State evaluated the
technological feasibility based on a
review of charbroiler regulations from
San Joaquin Valley Air Pollution
Control District, South Coast Air Quality
Management District, Bay Area Air
Quality Management District, Utah
Department of Environmental Quality,
and the New York City Department of
Environmental Protection. Finally,
Alaska performed a cost analysis for
each of these control technologies and
provided an estimated range of costs for
installing relevant emission controls,
which is included in the docket for this
action.
Alaska evaluated the annual costs of
installing emission controls for underfire charbroilers in new and existing
restaurants. An ESP device was
estimated to have an 86 percent control
efficiency, while filtration was
estimated to have 80 percent (wet
scrubbers were assumed to perform
similar control efficiency as filtration).
Estimated costs were based on prior
analyses by SJVAPCD and adjusted for
higher costs in Alaska. Alaska estimated
that installation costs in existing
restaurants are twice the cost of new
restaurants. Alaska’s analysis estimates
an annual cost in new restaurants
ranging from $12,817 to $157,447, to
install and operate emission controls.
Such a range was based on equipment
type, simple or complicated
configuration, age of the restaurant’s
infrastructure, and more. Based on the
control efficiencies, estimated cost
effectiveness figures for ESP in new
restaurants ranged from $41,467 to
$506,171; while filtration ranged from
$50,696 to $568,610.
The EPA finds that Alaska’s cost
calculations are appropriate for each of
the control options and agree with the
State that installing charbroiler emission
controls is economically infeasible at
this time. The EPA is thus finalizing
approval of Alaska’s PM2.5 BACT and
BACT determination that controls for
charbroilers are economically infeasible
at this time. The EPA agrees with
Alaska’s comment that the visible
emission limit in 18 AAC 50.055 limit
the direct PM2.5 emissions from
charbroilers. As a result, the EPA finds
that the visible emission limit in 18
AAC 50.055 constitutes BACM for the
charbroiler source category.
Comment: In its comments, Alaska
evaluated the technological and
economic feasibility of shipping used
oil via the FNSB Solid Waste Division
facility (Option 1). Alaska also
evaluated the option of purchasing,
operating, and maintaining a centrifuge
facility in Fairbanks to process used oil
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from all used oil generators in the
community (Option 2).
In evaluating both options, Alaska
reviewed data from 2010 and 2020 on
used oil. In 2010, Alaska surveyed 25
local auto shops on used motor oil usage
data. The survey estimated the total
amount of unprocessed used motor oil
used for burning purposes to be 135,100
gallons per year. In 2020, after adopting
18 AAC 50.078(c), Alaska sent 129
requests to possible businesses that may
have a used oil burner in the Fairbanks
PM2.5 Nonattainment Area. Alaska
received 47 responses to the requests for
information. Of the responses received,
31 verified that there is no used oil
burner present at the business location
and 16 verified that there is a used oil
burner present at the location. Some
businesses had multiple used oil
burners for a total of 19 used oil
burners. Due to varied results
concerning the fuel quality and
quantity, Alaska did not find the 2020
collected data to be useful information.
Thus, between the two data collection
efforts, Alaska found the survey
information obtained in 2010 to be
comprehensive and based its evaluation
of Options 1 and 2 on this information.
Alaska noted that the local solid
waste facility already has a program in
place as described above for accepting
used oil from residents and very small
quantity generators limited to 26 gallons
(approximately 100 kilograms) of used
oil per month. However, the facility
does not accept used oil from largequantity generators producing greater
than 26 gallons per month. Due to this
limitation, Alaska would have to
explore other alternatives for largequantity generators of used oil and
Option 1, therefore, is only partly
technologically feasible.
In evaluating economic feasibility,
Alaska assumed the emissions reduction
to be 50 percent since there is no
information on the fraction of used oil
used for direct combustion versus
disposal (while shipping the used oil
compared to disposal will result in 100
percent emissions reduction, replacing
used oil for combustion will not result
in 100 percent reduction as burning
used oil results in additional emissions).
As demonstrated by the costeffectiveness calculations provided
along with this comment, the costeffectiveness for Option 1 is found to be
$730,182 per ton of PM2.5 emissions
reduction. The higher shipping cost per
gallon and a lower reduction in
emissions drive the higher costeffectiveness numbers.
To evaluate the technological
feasibility of Option 2, Alaska reached
out to commercial vendors and referred
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to publicly available information from
online vendors and the Fairbanks North
Star Borough Solid Waste Division.
Based on that information, Alaska found
Option 2 to be technologically feasible
(in terms of shipping and maintenance
required for different components of the
centrifuge facility).
In evaluating economic feasibility,
Alaska assumed 100 percent emissions
reduction by processing the used oil at
the centrifuge facility. Costs to establish
a centrifuge facility consist of building
costs, equipment costs (consisting of
centrifuge, tankage, and forklift), labor,
and operational and maintenance costs.
Discussions with commercial vendors
highlighted that centrifuging used oil
(e.g., motor oil, cooking oil, and oil
containing animal fat) is a laborintensive process as the oil must be
separated due to the differences in
boiling point. As demonstrated by the
cost-effectiveness calculations provided
along with this comment, the costeffectiveness for Option 2 is found to be
$653,989 per ton of PM2.5 emissions
reduction.
Based on Alaska’s additional
technological and economic feasibility
analysis, Alaska’s dismissal of Measure
70 is unchanged. The combustion of
used oil is the only acceptable disposal
method available in the Fairbanks PM2.5
Nonattainment Area without shipping
the used oil to a central facility at
Anchorage or processing it at a
centrifuge facility in Fairbanks. While
Alaska found both options to be partly
or fully technologically feasible, the
economic analysis resulted in high costeffectiveness numbers due to higher
costs and minimal emissions reduction.
Due to economic infeasibility, Alaska
dismissed this measure as BACM in the
Fairbanks PM2.5 Nonattainment Area.
An additional comment noted that
burning used oil is cost efficient and
responsible compared to trucking it off
site.
Response: The EPA proposed to
disapprove Alaska’s BACM analysis for
used oil burners because Alaska’s initial
justification for not adopting control
measures was not sufficient to
demonstrate the measure was infeasible.
In comments, Alaska provided
additional information concerning
potential control strategies that would
achieve emission reductions and has
assessed the economic feasibility these
strategies.
Based on the additional facts and
analysis that the State has provided, the
EPA agrees that there is a significant
cost to reducing PM2.5 for this emission
source category. However, we observed
in the data provided by Alaska that for
the waste oil emission estimates there
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are considerably more SO2 emissions
than PM2.5 emissions, and thus potential
for greater reductions in SO2.89 Alaska
estimated SO2 emissions of 0.0185 tons
per day from waste oil (compared to
0.0026 tons per day for PM2.5). Alaska
estimates 135,150 gallons per year of
waste oil is produced Fairbanks. By
applying the SO2 emission factor
(instead of PM2.5) into the cost
calculations for each of the two options,
the EPA estimates a cost effectiveness
value of $102,838 per SO2 ton reduced
for Option 1 and $92,107 per SO2 ton
reduced for Option 2. While considering
SO2 emission reductions provides a
more reasonable estimate of benefits, we
agree with Alaska that Measure 70—
banning used oil burners is
economically infeasible as BACM at this
time.
iv. Energy Efficiency and
Weatherization Measures
a. Summary of Proposal
In the Proposal,90 the EPA proposed
disapproval of Alaska’s BACM analysis
with respect to potential energy
efficiency and weatherization measures.
The State had provided a number of
reasons for declining to adopt and
implement any such measures, each of
which the EPA proposed to reject as
bases to not adopt weatherization and
energy efficiency measures. Specifically,
the EPA noted the State and local
government have the authority to
require adequate insulation in
buildings, particularly new
construction. Therefore, the State’s
reliance on the ostensible lack of
authority is not a valid justification for
rejecting this type of control measure. In
addition, the EPA stated in the Proposal
that the just because emissions benefits
are hard to quantify does not mean there
are no emissions benefits. As stated
above, the BACM requirement is
generally independent of attainment
needs. Finally, a State cannot reject a
measure just because another
jurisdiction has not adopted and
implemented the measure.91
b. Final Rule
The EPA is finalizing disapproval of
Alaska’s BACM analysis and
determination that no weatherization or
energy efficiency type measures are
required for purposes of BACM in the
Fairbanks area. As noted in the
responses to comments, the EPA
89 ADEC comments on the Proposal, Docket
Identification No. EPA–R10–OAR–2022–0115–
0353–A5.
90 The EPA Technical Support Document—
control measures. EPA–R10–OAR–2022–0115–
000004, at p. 34.
91 See 81 FR 58010, August 24, 2016, at p. 58085.
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encourages Alaska to evaluate this type
of control measure and to identify,
adopt, and implement all feasible
measures as part of a subsequent SIP
submission.
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c. Comments and Responses
Comment: Several commenters
asserted that improving building energy
efficiency and weatherization practices
are important strategies for reducing
wood burning and improving air quality
in the Fairbanks PM2.5 Nonattainment
Area. One commenter stated that most
homes in the Fairbanks North Star
Borough were built in the 1970s and
1980s.
Response: The EPA agrees with the
commenters that improving energy
efficiency and weatherization practices
is an important strategy for reducing the
amount of wood, and other fuels,
combusted in the Fairbanks PM2.5
Nonattainment Area and, thus,
improving air quality. This is
particularly important given the age of
many homes in the Fairbanks PM2.5
Nonattainment Area, because older
homes may not meet modern energy
efficiency building standards. In
conjunction with other measures that
Alaska has imposed to address source
categories such as wood fired heating
devices, reducing the usage of such
sources through improved
weatherization and energy efficiency
would further reduce resulting
emissions from these sources.
Comment: One commenter opposed
the EPA’s proposed disapproval of
Alaska’s rejection of weatherization
measures, asserting that such measures
are unrealistic.
Response: The comment does not
provide a basis for its assertion that
weatherization requirements are
unrealistic or that imposing any
weatherization requirement or program
will be harmful. Nor does the comment
provide a basis for demonstrating that
all weatherization measures or programs
are infeasible in the Fairbanks PM2.5
Nonattainment Area.
The EPA notes that the Alaska
Community Development Corporation
offers a weatherization assistance
program using Alaska Housing Finance
Corporation and U.S. Department of
Energy Funding.92 This program reflects
the energy efficiency benefits of
weatherization and demonstrates the
feasibility of implementing
weatherization programs in Alaska. The
EPA also notes there has been
92 See Alaska Community Development
Corporation, Weatherization Assistance Program,
https://www.alaskacdc.org/weatherizationassistance-program.html.
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significant research and technological
advances related to building and
retrofitting homes in arctic and subarctic environments that also illustrates
the feasibility of such measures.93 Thus,
the comment does not provide a basis
for the EPA to approve Alaska’s
rejection of any weatherization and
energy efficiency measures as BACM
and BACT for sources in Fairbanks
PM2.5 Nonattainment Area.
Comment: Alaska commented that, in
response to the EPA’s proposed
disapproval with respect to this issue,
the State conducted a thorough review
of weatherization and energy efficiency
programs throughout the continental
United States. Alaska also performed a
deeper investigation of local efforts that
it had not accounted for in Alaska’s SIP
submission to evaluate an emissions
reduction commitment in the SIP. Based
on this review, Alaska identified
weatherization programs that fall into
three board categories: (1) Public
Education and Outreach Programs; (2)
Energy Audits; and (3) Building Energy
Codes.
With respect to public education and
outreach programs, Alaska identified
existing weatherization related
programs implemented by the San
Joaquin Valley Air Pollution Control
District and Sacramento Metropolitan
Air Quality Management District. These
programs include educating the public
on the effects of air pollution on health
and dissemination of weatherization
information in the form of pamphlets,
brochures, and other materials.
Alaska also identified and evaluated
weatherization-type controls
implemented though building energy
codes. Alaska identified several
jurisdictions that incorporate building
energy codes in SIP provisions,
including the South Coast Air Quality
Management District (‘‘SCAQMD’’) and
Dallas-Ft Worth Texas Commission of
Environmental Quality.
In addition, Alaska evaluated
programs that perform energy audits.
Alaska identified energy audit programs
implemented in the City of Berkeley,
San Francisco, California; Boulder,
Colorado; Burlington, Vermont; and
Ann Arbor, Michigan. According to
Alaska, the City of Berkeley adopted its
Building Energy Saving Ordinance
(‘‘BESO’’) in 2015. BESO requires
homeowners to complete energy
efficiency assessments and publicly
report the building’s energy efficiency
information. This assessment and
reporting requirement is triggered by a
sale, transfer, or renovation, and at
93 See Cold Climate House Research Center,
Retrofits, available at https://cchrc.org/retrofits/.
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specified intervals based on a phase-in
schedule.
Alaska noted that it has several
voluntary programs to provide
weatherization measures, provide
education and outreach, and improve
energy efficiency. For example, the
Alaska Housing Finance Corporation
(‘‘AHFC’’) energy programs have
continued to be implemented in the
Fairbanks nonattainment area since
Alaska adopted them as a voluntary
measure under the Fairbanks Moderate
Plan. Currently, AHFC offers an energy
efficiency interest rate reduction
(‘‘EEIRR’’) program, home energy loan
program, and weatherization program.
These programs are designed to make
homes more energy efficient and reduce
the amount of fuel and electricity
required for power and heating
purposes thereby leading to reduced
emissions and air quality benefits.
In Fairbanks, the program is
implemented by Interior
Weatherization, Inc., (‘‘Interior
Weatherization’’) a non-profit
corporation founded in 1985. The
program provides low- and moderateincome households with improvements
to their homes at no cost to increase the
energy efficiency of a dwelling. The
organization’s website states that it
weatherizes approximately 500 homes
each year and that it has improved over
5,000 homes since its inception.
Alaska also identified the Heating
Assistance Program, administered by
the Alaska Department of Health, which
offsets the cost of home heating for
households with income at or below
150% of the Federal poverty income
guidelines, the Alaska Energy
Authority’s Energy Efficiency and
Conservation education and outreach
campaign, and the Southwest Alaska
Municipal Conference’s low-cost energy
audits and grant assistance to small
businesses and commercial fishers as
ongoing voluntary programs.
With respect to building codes,
according to Alaska, the AHFC has
established Building Energy Efficiency
Standards (‘‘BEES’’) to improve energy
efficiency in the construction of new
buildings. The BEES set standards for
thermal resistance, air leakage, moisture
protection, and ventilation. The AHFC
requires these standards to be met only
for buildings built on or after January 1,
1992, if the owner applies for AHFC
financial assistance.
Alaska noted in its comments that
implementation of these types of
programs in Alaska varies depending on
the availability of contractors to perform
the work, funding levels, and changes in
congressional authorizations. Alaska
made clear that all such programs are
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voluntary and therefore do not provide
enforceable emission reductions.
Alaska commented that it does not
intend to adopt any building energy
efficiency codes or mandatory
weatherization requirements due to
limitations on ADEC’s legal authority.
Alaska stated that the City of Fairbanks
is a home rule municipality that has
exclusive authority to enforce a specific
building code and the City has, indeed,
enacted several discrete code provisions
that could authorize certain
weatherization measures. Because the
City is a home rule entity with certain
constitutional powers, the State would
have to enact a statute to preempt the
City’s building code authority before
Alaska could issue a regulations
package requiring additional or new
insulation. Thus, as of the date of this
comment, neither the State nor the
Borough has the authority to enact and
enforce a building code measure that
overlaps the authority of the City.
Alaska stated that outside Fairbanks
city limits, but within the Fairbanks
North Star Borough, the Borough
implements the PM2.5 Air Quality
Control Program which includes
voluntary home heating source removal
funding. However, in 2018 voters
approved the Home Heating
Reclamation Act which precludes the
Borough from ‘‘in any way’’ regulating,
prohibiting, curtailing, banning, or
issuing fines or fees associated with the
sale, distribution, installation, or
operation of solid fuel heating
appliances or any type of combustible
fuels. Thus, according to Alaska, even
though the Borough may have the
authority to provide for air pollution
control by virtue of Alaska Statute (AS)
29.35.210 and AS 46.14.400, the
Borough cannot exercise that authority.
According to Alaska, the Borough does
not have the authority to enact and
enforce a building code.
Alaska commented that it may have
some State law authority to adopt and
enact weatherization measures such as
insulation requirements pursuant to AS
46.03.020 (10) and AS 46.14.030 within
the Borough. However, Alaska
commented that it lacks the technical
expertise to implement such a measure
and that such measures would be
economically infeasible due to the
implementation and enforcement costs
and small emission reduction benefits.
Alaska also commented that
weatherization and energy efficiency
measures would not be necessary or
required if the EPA had not failed to
correctly test and certify wood stoves
under the NSPS. Alaska commented
that improving the efficiency of the
residence is necessarily subsequent to
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the heating process—it is a reaction to
the source (e.g. the stove). According to
Alaska, the heating source was
purchased and installed on the basis
that it did not exceed emission
standards and was tested and certified
as such. Thus, Alaska concluded,
consideration and adoption of
weatherization and energy efficiency
measures is only necessary due to the
EPA’s failure to property test and certify
wood stoves.
Finally, Alaska commented that to
address the EPA’s disapproval of the
Fairbanks Serious Plan and Fairbanks
189(d) Plan for lack of energy efficiency
and weatherization control measures it
will propose a regulation requiring a
robust advertising and education
program to the citizens of Fairbanks
North Star Borough and will include
best practices to improve efficiency in
an arctic environment and available
economic and practical mechanisms
that can assist homeowners in
improving both efficiency and
regulatory compliance. Alaska also
commented that it will disseminate
weatherization information in the form
of pamphlets or brochures.
In addition, Alaska commented that it
plans to implement a regulation
requiring energy efficiency audits for
buildings at the time of conveyance. The
regulation will consist of a building
owner completing an energy efficiency
assessment with a licensed energy
assessor. This measure will require the
owners to pay for the audit. Any
improvements identified by the assessor
are voluntary. Alaska noted the
difficulty of implementing this measure
due to lack of qualified energy auditors
in the Fairbanks North Star Borough.
Response: The EPA disagrees with the
Alaska’s view that no weatherization- or
energy efficiency-type control measures
are needed to meet BACM requirements
in the Fairbanks area. The EPA
appreciates that the State did further
investigation and analysis of the types
of measures that, if adopted, might meet
BACM requirements for the Fairbanks
PM2.5 Nonattainment Area. This
additional analysis illustrates the types
of measures that other jurisdictions have
enacted as SIP provisions to achieve this
objective.
The EPA acknowledges the various
voluntary incentive programs in Alaska
for energy efficiency upgrades and
weatherization. These measures,
however, do not appear to meet the EPA
guidelines for enforceability and SIP
emission reduction credit.94 The EPA
94 See PM
2.5 SIP Requirements Rule, 81 FR 58010,
August 24, 2016, at p. 58139; see also U.S.
Environmental Protection Agency, Office of Air and
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also notes that the City of Fairbanks and
City of North Pole have adopted
building and energy efficiency codes;
however, these codes are not included
in Alaska’s SIP and only cover a portion
of the Fairbanks PM2.5 Nonattainment
Area.95 Alaska’s comment indicates that
several jurisdictions have implemented
different forms of energy efficiency and
weatherization programs beyond
Alaska’s voluntary measures. This
supports the EPA’s disapproval of
Alaska’s rejection of these measures.
Alaska misconstrues the EPA’s
statements regarding authority. First,
Alaska cited a lack of authority as a
basis for technological infeasibility of
weatherization and energy efficiency
measures. In the Technical Support
Document reviewing this determination,
the EPA stated that the State and local
governments have the authority to
require adequate insulation in
buildings, particularly new
construction.96 The CAA requires States
to provide necessary assurances that
‘‘the State (or, except where the
Administrator deems inappropriate, the
general purpose local government or
governments, or a regional agency
designated by the State or general
purpose local government for such
purpose) will have adequate personnel,
funding, and authority under State (and,
as appropriate, local) law to carry out
such implementation plan (and is not
prohibited by any provision of Federal
or State law from carrying out such
implementation plan or portion
thereof).’’ 97
By ‘‘State,’’ the EPA did not mean
merely ADEC, but the State of Alaska.98
A State is required to have legal
authority under State law to meet CAA
requirements. A State may under State
law elect to share its authority and
responsibility for meeting CAA
requirements with local governments.99
Having done so, however, it is not
appropriate for a State to claim that it
cannot meet a CAA requirement due to
this division of authority and
responsibility.
Radiation, Incorporating Emerging and Voluntary
Measures in a State Implementation Plan (SIP),
September 2004, available at https://www.epa.gov/
sites/default/files/2016-02/documents/emerging_
vol_measures.pdf.
95 City of Fairbanks Ordinance 6153; City of
North Pole Code 15.12.010.
96 Jentgen, M. (September 27, 2022). Technical
support document for Alaska Department of
Environmental Conservation’s (ADEC) control
measure analysis, under 40 CFR 1010(a) and (c).
U.S. Environmental Protection Agency, Region 10,
Air and Radiation Division.
97 CAA section 110(a)(2)(E)(i), 42 U.S.C.
7410(a)(2)(E)(i).
98 CAA section 302(d), 42 U.S.C. 7602(d).
99 40 CFR 51.232.
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The legislative power of the State is
vested in the Legislature.100 Regarding
Home Rule Cities and Boroughs, the
EPA acknowledges that certain home
rule cities and borough may have
exclusive legislative powers under the
Constitution of the State of Alaska,
including building codes. This does not
mean that no State or local government
has authority to enact weatherization or
energy efficiency measures, but merely
means that the home rule city or
borough must do so. The EPA approved
SIPs often include city and county
ordinances for this reason.101 Such local
control may mean that multiple city and
borough ordinances need to be
incorporated into a State’s SIP and
approved by the EPA to ensure coverage
across a particular nonattainment area.
With respect to the economic feasibility
of implementing weatherization
measures and building codes, the cost to
the State or local agency of
administering a control measure is not
a valid consideration when evaluating
the economic infeasibility of the
measure nor a valid basis for not
implementing an otherwise feasible
measure.
The EPA also disagrees with the
commenter’s assertion that
weatherization and energy efficiency
measures are only necessary because
certain woodstoves operated in the
nonattainment area do not meet the
NSPS. The EPA rejects the premise that
weatherization and energy efficiency
measures are necessarily a reaction to
the heating source or that the emission
performance of a space heater correlates
to the energy efficiency or insulation of
the home. Weatherization and energy
efficiency measures, such as increased
insulation, improve the retention of
space heat regardless of the source of
such heat and regardless of air pollutant
emissions (if any) from that source.102
Thus, improved weatherization and
energy efficiency have the potential to
reduce emissions from all space-heating
source categories—not just the solid fuel
burning source category.
Moreover, the EPA believes that
improved heat retention means less fuel
use, which means less cost to the
resident.103 As a result, better heat
retention can reduce costs for all
100 The Constitution of the State of Alaska, Article
II, Section 1.
101 See, e.g., 40 CFR 52.70(c), Table 3.
102 See U.S. Department of Energy, Energy
Saver—Insulation, available at https://
www.energy.gov/energysaver/insulation.
103 Id. See also, U.S. Environmental Protection
Agency, Energy Resources for State and Local
Governments, Local Residential Energy Efficiency,
available at https://www.epa.gov/statelocalenergy/
local-residential-energy-efficiency.
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residents and may make switching to
higher cost fuels more affordable for
residents. In contrast, poor
weatherization and energy efficiency
can undermine advances in the
emissions performance of space heaters
because it forces the operator to burn
more fuel to heat a volume of air. Thus,
the EPA’s position remains that
disapproval of Alaska’s rejection of this
measure is appropriate.
In response to the Proposal, Alaska’s
comments indicate that the State
intends to evaluate and adopt additional
measures to address weatherization and
energy efficiency. For example, the State
indicated its intention to propose a
regulation to require a more robust
advertising and education program to
advise residents of best practices to
improve energy efficiency, and about
available economic and practical
mechanisms to improve energy
efficiency, analogous to such efforts in
other jurisdictions. Likewise, the State
indicated that it intends to evaluate and
adopt a regulation related to energy
efficiency audits, analogous to efforts in
other jurisdictions. The EPA will review
Alaska’s revised energy efficiency and
weatherization measures once Alaska
formally submits them to the EPA as
part of a SIP revision. Consistent with
the CAA and PM2.5 SIP Requirements
Rule, the EPA encourages Alaska to
identify, adopt, and implement all
feasible energy efficiency and
weatherization measures.
v. Emissions From Mobile Sources
a. Summary of Proposal
Alaska identified and evaluated
several mobile source emission
reduction measures and other
transportation control measures as
potential BACM for purposes of the
2006 24-hour PM2.5 NAAQS in the
Fairbanks PM2.5 Nonattainment Area.
These measures included: California Air
Resources Board (CARB) vehicle
standards (Measure 54); school bus
retrofits (Measure 55); road paving
(Measure 56); controls on road sanding
and salting (Measure 58); a vehicle
inspection and maintenance (I/M)
program (Measure 59); vehicle idling
restrictions (Measure 60); and Other
transportation control measures
(Measures 57 and R20) including highoccupancy vehicle (HOV) lanes, traffic
flow improvements, non-motorized
traffic zones; employer-sponsored
flexible work schedules, diesel fleet
retrofitting (school buses, transit fleets),
an on-road vehicle I/M program; a
heavy-duty vehicle I/M program, and a
low-emission vehicle (LEV) program.
Alaska rejected each of these measures
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as either technologically infeasible,
economically infeasible, providing low
emissions reductions benefits, or
because emissions reductions benefits
are difficult to quantify.
The EPA proposed to approve in part
and disapprove in part Alaska’s BACM
determinations with respect to these
potential measures. Specifically, the
EPA proposed to approve Alaska’s
rejection of the CARB vehicle standards
(Measure 54) as economically infeasible.
The EPA proposed to approve Alaska’s
rejection of school bus retrofits
(Measure 55); road paving (Measure 56);
and controls on road sanding and
salting (Measure 58) as technologically
infeasible. Finally, the EPA proposed to
approve Alaska’s rejection of a vehicle
I/M program (Measure 59) because such
a program only reduces NOX and VOC
emissions and the EPA proposed to
approve Alaska’s precursor
demonstration that shows NOx and
VOCs are not significant precursors to
PM2.5 formation in the Fairbanks PM2.5
Nonattainment Area.
The EPA also proposed to approve
Alaska’s determination that no NH3specific emission controls exist for this
source category. However, the EPA
proposed to disapprove Alaska’s
rejection of vehicle idling restrictions
(Measure 60) and other transportation
measures (Measures 57 and R20) 104 as
BACM. In support of its proposed
disapproval, the EPA noted that Alaska
did not demonstrate that these specific
measures were either technologically or
economically infeasible. The EPA
further noted that BACM is generally
independent of attainment needs and
that Alaska cannot reject potential
BACM merely because the emissions
from a source category are de minimis.
Finally, the EPA stated that certain ongoing transportation programs for which
Alaska took credit were not included in
the SIP submission.
b. Final Rule
The EPA is finalizing approval of
Alaska’s rejection of the CARB vehicle
standards (Measure 54) as economically
infeasible, as proposed. The EPA is
likewise finalizing approval of Alaska’s
rejection of school bus retrofits
(Measure 55) road paving (Measure 56);
and controls on road sanding and
salting (Measure 58) as technologically
infeasible, as proposed. The EPA is also
finalizing approval of Alaska’s rejection
of a vehicle I/M program (Measure 59),
104 Measure R20 includes: HOV lanes; Traffic
flow improvement program; Create non-motorized
traffic zones; Employer-sponsored flexible work
schedules; Retrofit diesel fleet (school buses, transit
fleets); On-road vehicle I/M program; Heavy-duty
vehicle I/M program; and State LEV program.
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as proposed. The EPA is also finalizing
its approval of Alaska’s determination
that no NH3-specific emission controls
exist for this source category.
Based on comments received, the EPA
is finalizing approval in part and
disapproval in part of Alaska’s rejection
of vehicle idling restrictions (Measure
60) and Other Transportation Measures
(Measures 57 and R20). Specifically, the
EPA is finalizing approval of Alaska’s
rejection of vehicle idling restrictions
for heavy-duty diesel vehicles as
economically infeasible. The EPA is
finalizing disapproval of Alaska’s
rejection of vehicle idling restrictions
for light-duty vehicles at schools and
commercial establishments. The EPA is
finalizing approval of Alaska’s rejection
of other transportation measures
(Measures 57 and R20) as either
technologically infeasible (HOV lanes)
or economically infeasible (traffic flow
improvements, diesel retrofit projects,
and ridesharing programs).
c. Comments and Responses
The EPA received no comments
regarding its proposed approval of
Alaska’s rejection of the CARB vehicle
standards (Measure 54), school bus
retrofits (Measure 55), road paving
(Measure 56); controls on road sanding
and salting (Measure 58); and Vehicle I/
M program (Measure 59) as either
technologically or economically
infeasible. The EPA received no
comments regarding its proposed
approval of Alaska’s determination that
no NH3-specific emission controls exist
for this source category.
The EPA received one comment
supportive of imposing vehicle idling
restrictions. The EPA received several
comments opposing the EPA’s Proposal
to disapprove Alaska’s rejection of
vehicle idling restrictions (Measure 60)
and other transportation measures
(Measures 57 and R20).
Comment: One commenter stated that
‘‘vehicle pollution is a smaller
component of the problem. Idling
vehicles in parking lots create a lot of
exhaust. Just like burning wood on bad
days, vehicle idling needs to be
curtailed.’’
Response: The EPA agrees with the
commenter that idling vehicles in
parking lots creates exhaust which
degrades air quality, particularly during
air stagnation events. The EPA also
agrees that absent a credible
technological or economic infeasibility
demonstration, Alaska should impose
vehicle anti-idling restrictions. As
discussed in the following paragraphs of
this preamble, the EPA is disapproving
Alaska’s determination that anti-idling
measures are technologically and
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economically infeasible. The EPA
encourages Alaska to adopt and
implement an anti-idling regulation and
incorporate this regulation into a
subsequent SIP submission.
Comment: Alaska opposed the EPA’s
proposed disapproval of Alaska’s
rejection of vehicle idling restrictions
and Other Transportation Measures on
three main grounds: (1) Alaska did not
predicate its rejection of the measures
on a determination that the mobile
source category is de minimis and its
initial rejection of the measures was
consistent with the CAA, PM2.5 SIP
Requirements Rule, EPA guidance, and
other prior EPA actions on other State’s
SIPs; (2) certain measures are approved
into the Alaska SIP; and (3) the
measures are infeasible based on a
supplementary analysis.
Alaska asserted that it did not reject
the control measures based on a
determination that the source category
was de minimis. Alaska stated that it
did not determine that the mobile
source category had a de minimis
contribution to PM2.5 levels or predicate
dismissal of the control measures on
that basis. Rather, Alaska dismissed the
measures as technologically infeasible.
Alaska also noted that the EPA
inconsistently interpreted and applied
the PM2.5 SIP Requirements Rule in
proposing to disapprove Alaska’s BACM
analysis for the mobile source category.
Specifically, Alaska cited to two prior
EPA actions approving nonattainment
plans submitted by South Coast Air
Quality Management District and San
Joaquin Air Quality Management
District that rejected certain control
measures as technologically infeasible
on similar grounds as Alaska.
As to whether certain measures were
SIP approved, Alaska asserted that the
EPA approved expanded availability of
plug-ins and an ordinance mandating
electrification of outlets at certain
temperatures as RACM in the Fairbanks
Moderate Plan. Alaska also commented
that all ongoing transportation programs
in the approved Fairbanks Moderate
Plan are transportation control measures
for conformity purposes.
Finally, Alaska provided
supplemental economic infeasibility
demonstrations for HOV lanes, traffic
flow improvements, anti-idling
measures, diesel retrofit projects, and
ridesharing programs. Regarding HOV
lanes, ADEC evaluated the feasibility of
constructing an HOV Lane on the Steese
Expressway, a four-lane divided
highway in the area. As part of its
assessment, Alaska assumed peak hour
volume and a conservative highway
capacity. Alaska determined that even
with these conservative assumptions,
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the Steese Expressway would
experience a reasonably free-flow
operations and free flow speed. Thus,
Alaska concluded that construction of
an HOV lane on the Steese Highway or
similar four-lane divided highways in
the Fairbanks PM2.5 Nonattainment Area
would provide no emissions benefits
and would be technologically infeasible.
With respect to Traffic flow
improvements, Alaska conducted an
economic feasibility assessment of
traffic signal improvements and
synchronization, roundabouts, and
intersection improvement projects.
Alaska determined that the cost
effectiveness of each of these projects
exceeded $1 million per ton of PM2.5
removed.
For anti-idling measures, Alaska
conducted economic feasibility
assessments of implementing an antiidling program of heavy-duty diesel
vehicles, light-duty passenger vehicles
at schools, and light-duty passenger
vehicles at commercial establishments.
Alaska determined that the cost
effectiveness of implementing these
programs ranged from $455,675.88 to
$210,198,489 per ton of PM2.5 reduced.
Alaska also evaluated the economic
feasibility of diesel retrofit projects.
Alaska referenced a Federal Highway
Administration study that evaluated 27
diesel retrofit projects that consisted of
retrofitting older diesel vehicle engines
with emissions reduction technologies
such as diesel particulate filters,
selective catalytic reduction, diesel
oxidation catalysts, and exhaust gas
recirculation technologies. According to
the study, the median cost effectiveness
was $165,130 per ton of PM2.5 reduced.
Similarly, Alaska evaluated the
economic feasibility of implementing
various ridesharing programs. Alaska
referenced a Federal Highway
Administration (FHWAI) study that
evaluated 40 ridesharing programs.
Based on the study, Alaska determined
that the median cost effectiveness of
implementing the programs would
$6,010,024 per ton of PM2.5 reduced.
In addition to Alaska, Fairbanks Area
Surface Transportation (FAST) Planning
opposed the EPA’s proposed
disapproval of Alaska’s rejection of
vehicle idling restrictions and other
transportation measures. FAST Planning
commented that Alaska did not
predicate its rejection of the measures
on a determination that the mobile
source category is de minimis. FAST
Planning also noted that the EPA was
internally inconsistent in its Proposal—
proposing to approve Alaska’s rejection
of vehicle I/M program (Measure 59)
and proposing to disapprove Alaska’s
rejection of a similar I/M program
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evaluated as part of a suite measures
included as other transportation control
measures (Measure 57, Measure R20).
FAST Planning commented that the
EPA is requiring the State to consider
implementing transportation controls
that will result in limited to no
reductions of PM2.5 emissions without
regard to cost to the community.
Similarly, FAST Planning commented
that some measures are not warranted or
appropriate for the Fairbanks
nonattainment area. In particular, FAST
Planning stated that HOV lanes are not
appropriate for the Fairbanks PM2.5
Nonattainment Area because they are
meant for communities with much
larger populations and severe
congestion. Fairbanks has a
comparatively small traffic size and has
a lack of congested roadways.
FAST Planning also commented that
the EPA did not provide credit to the
State for existing and ongoing
transportation control measures listed in
the SIP. FAST Planning asserted that
Alaska included a list of voluntary
transportation measures in the SIP
submission (such as the expansion of
transit service, motor vehicle plug-ins,
public education and outreach, and
anti-idling measures). FAST Planning
stated that these measures are not
voluntary because the State is required
to fund these measures.
Response on de minimis source
category comments: The EPA
acknowledges that Alaska did not
explicitly designate the mobile source
category as a de minimis source
category in the Fairbanks Serious Plan
and Fairbanks 189(d) Plan for the
purposes of avoiding adopting and
implementing BACM and BACT on
mobile sources. The EPA’s proposal to
disapprove Alaska’s rejection of these
control measures for mobile sources was
based on several factors: (1) low
emissions benefits is not a valid basis to
reject a measure as technologically
infeasible; (2) BACM is generally
independent of attainment needs; and
(3) Alaska’s rejection of all measures to
control emissions from mobile sources
appeared to implicitly determine that
this source category was de minimis.
The EPA notes that in its comments
Alaska supplemented its infeasibility
demonstrations for the mobile source
control measures. These supplemental
demonstrations alleviate the EPA’s
concern about effectively determining
that the mobile source category is de
minimis. The ensuing discussion
provides further explanation for the
EPA’s proposed disapproval and
position regarding technologically
infeasibility demonstrations:
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CAA section 189(b) and 40 CFR
51.1010(a) contain the control measure
requirements for Serious areas. CAA
section 189(d) and 40 CFR 51.1010(c)
contain the control measure
requirements for Serious areas that fail
to attain. The EPA summarized these
requirements in the proposed rule.105 Of
particular relevance here, in accordance
with 40 CFR 51.1010(a), the State must
adopt and implement the best available
control measures and technologies for
each emission source. However, the
State may demonstrate that any measure
identified under 40 CFR 51.1010(a)(2) is
not technologically or economically
feasible to implement in whole or in
part by the end of the tenth calendar
year following the effective date of
designation of the area and may
eliminate such whole or partial measure
from further consideration.
In addition, the EPA’s longstanding
interpretation of the CAA is that BACM
and BACT determinations are to be
generally independent of attainment for
purposes of implementing the PM2.5
NAAQS.106 The EPA interprets the CAA
requirement to impose BACM and
BACT-level control as requiring more
emphasis on what controls are the best
for the relevant source and whether
those controls are feasible rather than on
the attainment needs of the area.107
Finally, States also may not decline to
evaluate, or to control as necessary,
sources or source categories on the basis
that they are de minimis.108
Subsequently, for a State with a
Serious PM2.5 nonattainment area that
has failed to attain by the applicable
attainment date, the State must submit
a revised attainment plan with a control
strategy that (1) demonstrates that each
year the area will achieve at least a 5
percent reduction in emissions of direct
PM2.5 or a 5 percent reduction in
emissions of a PM2.5 plan precursor
based on the most recent emissions
inventory for the area and (2) includes
such other additional control measures
necessary to achieve attainment as
expeditiously as practicable consistent
with the attainment date requirements
under 40 CFR 51.1004(a)(3).109 The
regulation at 40 CFR 51.1010(c) required
the State to reconsider and reassess any
measures previously rejected by the
State during the development of any
Moderate area or Serious area
105 88 FR 1454, January 10, 2023, at pp. 1464–
1465.
106 Addendum to the General Preamble, 59 FR
41998, August 16, 1994, at p. 42011; 81 FR 58010,
August 24, 2016, at p. 58081.
107 Id.
108 81 FR 58010, August 24, 2016, at p. 58082.
109 CAA section 189(d), 42 U.S.C. 7513a(d), and
40 CFR 51.1010(c).
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attainment plan control strategy for the
area.
Based on these requirements and
interpretations, the EPA proposed to
disapprove Alaska’s rejection of certain
control for the mobile source category
(Measures 57, 60, and R20). Alaska’s
evaluation of other transportation
control measures consisted of a review
of measures evaluated as RACM for the
Fairbanks Moderate Plan.110 Alaska
referenced the prior analysis as
determining limited emission reduction
benefits from these measures. Alaska
also referenced the EPA and FHWA
studies that indicated small emissions
reductions from these measures.111 In
addition, while Alaska acknowledged
that these measures are technologically
feasible in the analysis,112 it concluded
that the measures are not
technologically feasible in the Fairbanks
area.113 Alaska did not re-evaluate this
analysis or conclusion as part of the
Fairbanks 189(d) Plan.114
Alaska’s evaluation of anti-idling
programs (Measure 60) in the Fairbanks
Serious Plan consisted of a study of the
effects on carbon monoxide emissions of
turning off a warmed-up vehicle
compared to leaving it running.115
Alaska concluded based on this study
that further study of PM2.5 emission
reductions is necessary to determine
whether anti-idling programs are
feasible. Nevertheless, ADEC concluded
that such a measure would produce no
emissions benefit and was, therefore,
technologically infeasible. Alaska
modified this analysis slightly as part of
the 189(d) Plan—drawing a connection
between low carbon monoxide (CO)
emission benefits and low PM2.5
benefits.116 Alaska ultimately concluded
anti-idling programs are technologically
infeasible due to lack of evidence of
emission benefits.
However, the emissions reduction
benefit of a particular measure is not a
factor assessing whether the measure is
110 State Air Quality Control Plan, Vol. III,
Appendix III.D.7.7 at p. 166 (November 19, 2019).
111 Id. at p. 167–168.
112 Id. at 168 (‘‘With regard to the BACM finding,
transportation control measures are technologically
feasible; they have been implemented all over the
country. That said, independent studies have
documented that while states and communities
continue to adopt them, where funding is available,
growing experience in lower-48 states has
demonstrated emissions benefits are limited.’’).
113 Id.
114 State Air Quality Control Plan, Vol. III,
Appendix III.D.7.7 at pp. 5435–538, adopted
November 18, 2020.
115 State Air Quality Control Plan, Vol. III,
Appendix III.D.7.7 at pp.105–106, adopted
November 19, 2019.
116 State Air Quality Control Plan, Vol. III,
Appendix III.D.7.7 at pp. 5405–5406, adopted
November 18, 2020.
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technologically feasible. Such
considerations are more appropriate
under an economic feasibility
assessment. Alaska did not assess the
economic feasibility of anti-idling
programs or any of the other
transportation control measures as part
of the Serious Area Plan or 189(d) Plan.
The EPA notes, however, that Alaska
submitted supplemental infeasibility
demonstrations as part of its comments.
Relatedly, the substantive basis for
Alaska’s rejection of these measures was
that they provided limited emissions
benefits, such benefits were difficult to
quantify given the climate in Fairbanks,
and/or that additional studies were
necessary to understand the emissions
reduction benefits. The EPA’s position
is that these are inadequate reasons for
rejecting otherwise feasible measures.
Response to Alaska’s comment on
inconsistent application of the PM2.5 SIP
Requirements Rule: The EPA disagrees
with Alaska that it interpreted and
applied the PM2.5 SIP Requirements
Rule inconsistently with respect to the
EPA’s proposed disapproval of Alaska’s
BACM analysis for the mobile source
category. Contrary to Alaska’s
assertions, a comparison of the EPA’s
actions on the South Coast Air Quality
Management Plan and 2018 San Joaquin
Valley PM2.5 Plan with the EPA’s review
of the Fairbanks Serious Plan and
Fairbanks 189(d) evinces the EPA’s
consistent application of the CAA and
PM2.5 SIP Requirements Rule.
On April 27, 2017, the California Air
Resources Board (CARB) submitted two
SIP submissions to the EPA for the
South Coast Serious nonattainment area
for the 2006 PM2.5 NAAQS.117 One such
submission was entitled Final 2016 Air
Quality Management Plan (March 2017)
(2016 AQMP) and contained, inter alia,
control strategies for mobile sources.
The EPA proposed to approve these SIP
submissions as meeting CAA
requirements for the 2006 PM2.5 24-hour
NAAQS on October 3, 2018.118 For the
mobile source category, the EPA
proposed to approve the control strategy
for numerous reasons.
According to the 2016 AQMP, CARB
and other State agencies implemented
24 individual mobile source and
transportation control measures,
including school bus idling measures,
school bus retrofit program, and heavy117 Approval
and Promulgation of
Implementation Plans; California; South Coast
Serious Area Plan for the 2006 PM2.5 NAAQS, 83
FR 49872, October 3, 2018, at p. 49873.
118 Id. at 49872. The EPA finalized approval on
February 12, 2019. Approval and Promulgation of
Implementation Plans; California; South Coast
Serious Area Plan for the 2006 PM2.5 NAAQS, 84
FR 3305, February 12, 2019, at p. 3308.
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duty vehicle inspection program.119
Pursuant to a SIP-approved
transportation control measure selection
and rollover process,120 several
government agencies in the South Coast
area implemented numerous major
transportation control measures in
South Coast, including HOV lanes,
regular transit bus, bus rapid and
express bus, transit rail, and bikeway
projects.121Appendix IV–C of the 2016
AQMP includes a list of TCM projects
that are specifically identified and
committed to in the plan, including,
among many other types of TCMs,
traffic flow improvement projects.122
For the 2016 AQMP, in order to
determine whether adoption of
additional controls on mobile sources
was necessary to satisfy the BACM
requirement, the Southern California
Association of Governments (SCAG)
surveyed other nonattainment areas.
SCAG is the region’s metropolitan
planning organization. SCAG found
that, at the time of the survey, no other
nonattainment areas were implementing
measures beyond what CARB, SCAG
and the local agencies already
implemented.123 Thus, SCAG
reevaluated 24 measures previously
rejected as RACM for potential
implementation as BACM.124 SCAG
summarized its evaluation in Table 9 of
Appendix IV–C of the 2016 AQMP.
However, a more thorough analysis is
included as Attachment B to Appendix
IV–C of the 2016 AQMP. A review of
Attachment B indicates that for each
measure dismissed, SCAG correctly
cited a technological or economic
infeasibility basis. For example, SCAG
evaluated numerous specific anti-idling
measures and adopted some, while
determining that others raised safety
concerns or were economically
infeasible.125
Alaska’s comments appear to target
measures that SCAG dismissed as
providing no emissions benefits as the
crux of its inconsistency argument. The
EPA disagrees that SCAG’s analysis or
the EPA’s subsequent approval of
California’s SIP submission demonstrate
inconsistent application of the PM2.5 SIP
Requirements Rule. Measures that
SCAG dismissed as providing no
emissions benefits included banning left
turns, limiting excessive car dealership
vehicle starts, requiring pay-as-you
drive insurance, and demolishing
impounded vehicles that are high
emitters.126 SCAG noted that some left
turns were already banned and other
rules incentivized destruction of highemitting vehicles.127 For a measure
referred to as limiting excessive car
dealership starts, SCAG noted that car
dealerships need to start cars to avoid
battery failure and that in contrast to
colder climates where vehicles are
started on a daily basis, and the South
Coast Air Quality Management District
had determined that vehicles in the
South Coast are started less frequently.
For pay-as-you-drive insurance, SCAG
noted that there was no clear
demonstration of emission reduction
benefits. Given this context, the EPA has
consistently interpreted and applied the
PM2.5 SIP Requirements Rule in its
action on the 2016 AQMP and proposed
action on the Fairbanks Serious Plan
and Fairbanks 189(d) Plan.
As for the San Joaquin PM2.5
Nonattainment area, on March 27, 2020,
the EPA proposed to approve the
portions of the 2018 San Joaquin Valley
Plan for the 1997, 2006, and 2012 PM2.5
Standards (2018 SJVAPCD Plan) and the
San Joaquin Valley Supplement to the
2016 State Strategy for the State
Implementation Plan that pertain to the
2006 24-hour PM2.5 NAAQS.128 The
EPA finalized its approval on July 22,
2020.129 The EPA determined that
CARB’s control measures for the mobile
source category constituted the most
stringent control program currently
available.130 The 2018 SJVAPCD Plan
includes existing measures and CARB
and San Joaquin Air Quality
Management District’s identification
and evaluation of additional
measures.131 The evaluation of mobile
source controls is embodied in
Appendix D—Mobile Source Control
Measure Analyses to the 2018 SJVAPCD
Plan. Notably, CARB implements the
control measures Alaska rejected as part
of the Fairbanks Serious Plan and
Fairbanks 189(d) Plan, including a
vehicle inspection program, school bus
anti-idling measures (School Bus
Airborne Toxic Control Measure in
effect since July 16, 2003),132 and a
126 Id.
at 43—50.
at 43; 49.
128 Clean Air Plans; 2006 Fine Particulate Matter
Nonattainment Area Requirements; San Joaquin
Valley, California; 85 FR 17382, March 27, 2020.
129 85 FR 44192, July 22, 2020.
130 Clean Air Plans; 2006 Fine Particulate Matter
Nonattainment Area Requirements; San Joaquin
Valley, California, 85 FR 17382, March 27, 2020, at
p. 17404.
131 Id.
132 2018 SJVAPCD Plan at Appendix D, D–42.
127 Id.
119 2016
AQMP at Appendix IV–C–29.
CFR 52.220(c)(204)(i)(B)(2). The specific
TCM selection and rollover process is identified in
the 1994 South Coast AQMP as TCM–1
(‘‘Transportation Improvements’’).
121 2016 AQMP at Appendix IV–C–34.
122 Id. at IV–C–51—IV–C–74.
123 Id. at IV–C–36—IV–C–40.
124 Id. at IV–C–40—IV–C–50.
125 Id. at 100–101.
120 40
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Heavy-Duty Diesel Vehicle Idling
Reduction Program.133
Contrary to Alaska’s assertion,
CARB’s BACM and MSM evaluation for
mobile sources and the EPA’s approval
of the resultant SIP submissions
indicates the EPA’s consistent
interpretation and application of the
PM2.5 SIP Requirements Rule. CARB
demonstrated that for multiple mobile
sources, it had already adopted the most
stringent measures and committed to
adopting additional measures. As with
the 2016 AQMP, the EPA’s action on the
2018 SJVAPCD Plan when compared to
its proposed action on the Fairbanks
Serious Plan and Fairbanks 189(d) does
not indicate inconsistent interpretation
or application of the PM2.5 SIP
Requirements Rule.
Response to Alaska’s comment on
prior SIP approvals: Regarding controls
included in the Fairbanks Moderate
Plan, the commenters correctly point
out that the EPA previously approved
the Moderate Plan, including RACM for
the mobile source category.134 The
approved measures included: Fairbanks
North Star Borough Ordinance No.
2001–17 that requires employers or
businesses that have 275 or more
parking spaces to provide power to
electrical outlets at temperatures of 20
degrees F or lower for engine block
heaters; expanded availability of plugins; public education focused on the
benefits of plugging-in and using the
transit program; expanded transit
service; commuter van pool program;
anti-idling program for heavy-duty
diesel vehicles focused on the purchase
and installation of auxiliary heaters to
reduce idle time; and the Federal motor
vehicle control program.135
Save for the Fairbanks North Star
Borough Ordinance and the Federal
standards, these measures were
designated as voluntary in the moderate
plan and the EPA’s approval.136 These
RACM, however, do not fully satisfy the
CAA BACM requirements. As part of the
BACM evaluation process, ADEC
identified additional measures for the
mobile source category or reevaluated
measures previously rejected as part of
development of the Moderate Plan. In
accordance with 40 CFR 51.1010(a) and
(c), Alaska must either adopt those
measures or provide a demonstration
that those measures are not
technologically or economically
133 Id.
at D–41 and D–42.
FR 42457, September 8, 2017.
135 82 FR 42457, September 8, 2017; State Air
Quality Control Plan, Volume III, Appendix
III.D.5.7–43, adopted December 24, 2014.
136 State Air Quality Control Plan, Volume III,
Appendix III.D.5.7–24, adopted December 24, 2014;
82 FR 9035, February 2, 2017, at p. 9045.
134 82
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feasible. Alaska did not adopt all
identified measures and did not
demonstrate that those measures were
either technologically or economically
feasible consistent with the PM2.5 SIP
Requirements Rule. Therefore, the EPA
proposed to disapprove the Fairbanks
Serious Plan and Fairbanks 189(d) plan,
in part, on that basis.
Response to Alaska’s supplemental
feasibility analyses: Turning to ADEC’s
updated BACM analysis submitted as
part of its comments, the EPA finds that
Alaska has demonstrated that
constructing HOV lanes is
technologically infeasible at this time
and anti-idling requirements on heavyduty diesel vehicles, traffic flow
improvements, diesel retrofit programs,
and ridesharing programs are
economically infeasible at this time. The
EPA evaluated Alaska’s costeffectiveness calculations and
confirmed the inputs and calculation
methodology are sound and reasonable.
The EPA finds that Alaska has not
demonstrated that anti-idling
requirements on light duty vehicles at
schools and commercial establishments
are either technologically or
economically infeasible.
Regarding anti-idling restrictions on
heavy-duty diesel vehicles, Alaska
submitted, as part of its comments on
our proposed action, an economic
infeasibility assessment that concluded
that such a measure has a cost per SO2
ton reduced of $455,675.88. Alaska
based its cost effectiveness calculations
on information gained from a July 2011
anti-idling pilot project conducted by
the Alaska Department of
Transportation & Public Facilities.137
According to its comments, Alaska
estimated the heavy-duty vehicle fleet
PM2.5 idle emission rates using the
MOVES3 model. The costs of
implementing the program include
purchasing and installing auxiliary
heaters, such as cab heaters and
hydronic coolant heaters. Alaska’s cost
effectiveness calculations appear sound.
Thus, the EPA concurs with Alaska’s
assessment that anti-idling restrictions
on heavy-duty diesel vehicles are
economically infeasible at this time.
With respect to vehicle anti-idling
restrictions for light-duty passenger
vehicles at schools and commercial
establishments, Alaska commented that
imposing such anti-idling restrictions
would pose an unacceptable safety risk.
Alaska also included an economically
infeasibility assessment. With respect to
safety risks, Alaska stated, ‘‘ADEC has
137 State Air Quality Control Plan Vol. III,
Appendix III.D.7.7 at p.19, adopted November 19,
2019.
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significant safety concerns regarding
these measures. As was evidenced
during the Public Hearing in Fairbanks
on March 9, 2023, when temperatures
are ¥20 to ¥60, idling is often done to
ensure that small children and infants
aren’t exposed to frostbite conditions or
to prevent cars from being stranded after
being turned off without being plugged
in to a heat source.’’
The EPA recognizes the potential
safety risk posed to vehicle occupants of
an absolute prohibition on idling.
However, Alaska need not impose such
a prohibition to adopt and implement
idling restrictions that satisfy controls
strategy requirements for Serious areas
and Serious areas the fail to attain. A
review of State and local anti-idling
restrictions illustrates a variety of
approaches to limiting idling.138 Many
of these examples include idling
duration limits that vary depending on
ambient temperature and provide
exemptions for safety.139 Likewise,
Alaska may adopt an anti-idling
regulation that takes into consideration
the unique local conditions in the
Fairbanks PM2.5 Nonattainment Area.
Alaska did not provide data
supporting the prevalence of cars failing
to start or run in cold weather in the
Fairbanks nonattainment area. The EPA
searched for documentation of this issue
and could not find any studies or data.
The EPA did find information that
indicates that frequent engine restarts
have little impact on engine
components and unnecessary vehicle
idling can damage engine components
and waste fuel.140
The EPA reviewed the transcript from
the public hearing for statements
regarding idling cars to protect children
and cars being stranded without being
plugged into a heat source. The EPA
found that one commenter raised
concerns about electric vehicles failing
to work in cold weather.141 However,
this comment was contradicted by
another commenter who testified to
138 U.S. Environmental Protection Agency, Office
of Transportation and Air Quality, Compilation of
State, County, and Local Anti-Idling Regulations,
EPA420–B–06–004, April 2006, available at https://
www.epa.gov/sites/default/files/documents/
CompilationofStateIdlingRegulations.pdf.
139 New Hampshire Administrative Code Env-A
1102.2 Idling Limitations for Motor Vehicles
(providing an exemption when temperatures are
below ¥10 °F); Code of Village of Northport, § 289–
2; City of Philadelphia Air Management Regulations
Ch. IX, Section III Idling of Diesel Powered Motor
Vehicles.
140 State of Alaska Department of Transportation
and Public Facilities, Vehicle/Equipment Idle
Reduction, Policy and Procedure 02.01.110, January
29, 2014, available at https://dot.alaska.gov/
admsvc/pnp/local/dot-jnu_122970.pdf.
141 EPA public hearing transcript, held on March
7, 2023, p. 22–23, included in docket for this action.
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owning an electric car that functions in
¥30 °F.142 Thus, Alaska has not
demonstrated that vehicle anti-idling
restrictions for light-duty passenger
vehicles at schools or commercial
establishments are technologically
infeasible. The EPA reiterates that
Alaska may craft the measure in a
manner that accommodates safety
concerns.
Regarding Alaska’s economic
infeasibility demonstration, Alaska
estimated that imposing vehicle antiidling restrictions for light-duty
passenger vehicles at commercial
establishments would have a cost
effectiveness of between $20,420,145 to
$10,837,330,902. Alaska derived these
calculations in part by incorporating the
annual salaries of two Fairbanks North
Star Borough employees to patrol
parking lots to enforce the program.
Alaska estimated the annual salary of a
Borough employee at $105,929. Based
on Alaska’s calculations, these salary
costs are the dominant cost of the
program.
Incorporating the cost of
implementing and enforcing a control
strategy is inconsistent with the CAA
and PM2.5 SIP Requirements Rule.
Pursuant to CAA section 110(a)(2)(E),
the State is required to provide
necessary assurances that the State will
have adequate personnel, funding, and
authority under State law to carry out its
implementation plan. In contrast,
economic infeasibility assessments are
focused on the costs projected to be
borne by the owner and operator of the
subject source.143 Setting aside the cost
of Borough employee salaries, the
measure appears to yield cost savings
from estimated fuel savings. Thus, the
EPA finds that Alaska has not
demonstrated that vehicle anti-idling
restrictions for light-duty passenger
vehicles at commercial establishments
and schools are economically infeasible.
Regarding constructing HOV lanes,
the EPA finds Alaska’s technological
infeasibility demonstration as
supplemented in the State’s comments
compelling. The EPA agrees this
measure is technologically infeasible
taking into consideration local
conditions, including infrastructure,
population, and traffic flow.
Regarding traffic flow improvements,
Alaska determined that the cost
effectiveness of each of these projects
exceeded $1 million per ton of PM2.5
removed. Alaska referenced the July 20,
2020 Congestion Mitigation and Air
142 EPA public hearing transcript, held on March
7, 2023, p. 35, included in docket for this action.
143 40 CFR 51.1010; 81 FR 58010, August 24,
2016, at p. 58085.
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Quality Improvement (CMAQ) Program
2020 Cost-Effectiveness Tables Update
produced by the FHWA (CMAQ
Tables).144 According to the CMAQ
Tables, traffic flow improvements such
as signal synchronization, roundabouts,
and intersection improvements ranged
in cost $250,000 to $2.9 million which
amounted to a cost effectiveness of
between $1,136,071 and $13,255,774
per ton of PM2.5.145 Based on this
information, the EPA concurs with
Alaska’s determination that traffic flow
improvements are economically
infeasible for the Fairbanks PM2.5
Nonattainment Area, at this time.
With respect to diesel retrofits, Alaska
cited the CMAQ Table as a basis for
estimating a median cost effectiveness
of $165,130 per ton of PM2.5 reduced.146
The EPA verified these calculations in
the CMAQ Table and we concur with
Alaska that diesel retrofits are
economically infeasible in the Fairbanks
PM2.5 Nonattainment Area, at this time.
Finally, ADEC cited the CMAQ Tables
as evidence that ridesharing programs
are economically infeasible.
Specifically, according to the CMAQ
Tables, ridesharing programs have a
median cost effectiveness of $6,010,024
per ton of PM2.5 reduced.147 The EPA
verified these calculations in the CMAQ
Table and concur with Alaska that
ridesharing programs are economically
infeasible, at this time.
vi. Alaska’s Identification and Adoption
of BACT
a. Summary of Proposal
The EPA proposed to partially
approve and partially disapprove
Alaska’s identification and adoption of
BACT for stationary sources. The EPA
proposed to approve most of Alaska’s
PM2.5 BACT determinations for
stationary sources but proposed to
disapprove the Fairbanks Serious Plan
and Fairbanks 189(d) Plan due to lack
of monitoring, recordkeeping, and
reporting requirements necessary to
ensure the BACT limits are enforceable
as a practical matter. The EPA proposed
to partially approve and partially
disapprove Alaska’s SO2 BACT
determinations for the stationary
sources.148 Finally, the EPA proposed to
144 Office of the Natural Environment, Federal
Highway Administration, U.S. Department of
Transportation, Congestion Mitigation and Air
Quality Improvement (CMAQ) Program 2020 CostEffectiveness Tables Update, July 20, 2020,
available at https://www.fhwa.dot.gov/
ENVIRonment/air_quality/cmaq/reference/cost_
effectiveness_tables/fhwahep20039.pdf.
145 Id. at 63–72.
146 Id. at 75–82.
147 Id. at
148 On September 25, 2023, Alaska withdrew is
SO2 BACT determinations and analysis for major
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84653
approve Alaska’s NH3 BACT
determinations for all stationary
sources. Details on the scope and basis
of the EPA’s proposed partial approval
and partial disapproval are included in
section III.C(3)(c) of the Proposal and
will not be restated here.
Alaska noted that large stationary
sources are a subgroup of emissions
sources that have specific requirements
in the BACM analysis. Alaska evaluated
all stationary sources with potential to
emit (PTE) greater than 70 tons per year
(tpy) of PM2.5 or PM2.5 precursors for
potential BACT-level controls.
According to Alaska, sources with
emissions below the 70 tpy threshold
only require evaluation for BACM.
Alaska states that this emissions
threshold is in place to distinguish
between the planning requirements for
certain sources emitting above and
below this threshold and is consistent
with an emissions threshold in the 2016
PM2.5 SIP Requirements Rule.149
The EPA disagrees with this
assessment. All emissions sources
identified in the emissions inventory are
subject to BACM requirements, and the
BACT evaluation process is merely a
sub-set of BACM. Accordingly, all
sources of direct PM2.5 and PM2.5
precursors are subject to BACM and
BACT requirements regardless of PTE.
There is no PTE threshold below which
BACT requirements do not apply. The
70 tons per year PTE threshold cited by
Alaska only has relevance in
determining whether a new stationary
source proposed to be constructed in a
nonattainment area meets the definition
of a major stationary source pursuant to
the nonattainment new source review
provisions.150
b. Final Rule
Please see the following paragraphs
addressing each stationary source
regarding the EPA’s final
determinations.
c. Comments and Responses
For a summary of relevant comments
and the EPA’s detailed responses on this
requirement, see the Response to
Comments document included in the
docket for this action.151
stationary sources in the Fairbanks PM2.5
Nonattainment Area.
149 The EPA notes that Alaska applied this
threshold to emissions units at the GVEA Zehnder
facility.
150 40 CFR 51.165(a)(1)(iv)(A)(1); see also 18 AAC
50.040(i).
151 Response to Comments Regarding Best
Available Control Technology Requirements on the
Air Plan Partial Approval and Partial Disapproval;
AK, Fairbanks North Star Borough; 2006 24-hour
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vii. Chena Power Plant
a. Summary of Proposal
The Chena Combined Heat and Power
Plant (Chena Power Plant) is an existing
stationary source owned and operated
by Aurora Energy, LLC, which consists
of four existing coal-fired boilers: three
76 million British Thermal Units
(MMBtu) per hour overfeed traveling
grate stoker type boilers and one 269
MMBtu per hour spreader-stoker type
boiler that burn coal to produce steam
for heating and power (497 MMBtu per
hour combined).
The State’s BACT determination for
the Chena Power Plant evaluated
potential controls to reduce NOX, and
PM2.5 emissions from its four coal-fired
boilers.152 Regarding Alaska’s analysis
for PM2.5 emission controls, Alaska
noted that the source currently uses the
baghouse to achieve 99.9 percent
capture efficiency, but did not
definitively determine this control was
required as BACT or submit for SIP
approval an enforceable requirement to
operate the baghouse. Operation of the
baghouse to achieve 99.9 percent
capture efficiency is likely to be BACT
for PM2.5 for this source, but the State
must revise the SIP to include an
enforceable requirement to operate the
baghouse to achieve this level of control
before we can determine whether BACT
requirements are satisfied. Therefore,
the EPA proposed to disapprove
Alaska’s BACT finding for PM2.5 for the
four coal-fired boilers at the Chena
Power Plant.
For SO2 emission controls, the EPA
proposed to disapprove Alaska’s
infeasibility demonstrations on several
grounds that are detailed in the Proposal
and are not restated here.
We proposed to approve Alaska’s
analysis that found no NH3-specific
emission controls for the sources at this
facility.
TABLE 5—CHENA POWER PLANT BACT SUMMARY
Pollutant
Alaska’s BACT determination, by source category
Chena Power Plant, Aurora Energy, LLC
Coal-fired boilers (EUs 4–7)—3 boilers rated 76 MMBtu per hour and 1 boiler rated 269 MMBtu per hour
PM2.5 .......................
N/A (Alaska claims installed single full steam baghouse is highest rated control available, but no PM2.5 BACT analysis or
emission limitation was submitted).
Source: State Air Quality Control Plan, Vol. II, Chapter III.D.7.7, Table 7.7–10 and Section 7.7.8.2.5.
b. Final Rule
viii. Fort Wainwright
The EPA is finalizing partial
disapproval of the Fairbanks Serious
Plan and Fairbanks 189(d) Plan because
the plans do not identify, adopt, and
implement BACT for PM2.5 and SO2 for
the Chena Power Plant. The EPA is
finalizing approval of Alaska’s BACT
analysis for NH3 emission controls for
the Chena Power Plant.
a. Summary of Proposal
c. Comments and Responses
For a summary of relevant comments
and the EPA’s detailed responses, see
the Response to Comments document
for this requirement, included in the
docket for this action.153
Fort Wainwright is an existing U.S.
Army installation. Emission units
located within the military installation
include boilers and generators that are
owned and operated by the U.S. Army
Garrison Alaska (referred to as FWA).
The Central Heating and Power Plant
(CHPP), also located within the
installation footprint, is owned and
operated by Doyon Utilities, LLC (DU),
a subsidiary of Doyon, Limited. Doyon,
Limited is the regional Alaska Native
corporation for Interior Alaska. The two
entities, DU and FWA, comprise a single
stationary source operating under two
permits.
The CHPP is comprised of six
spreader-stoker type coal-fired boilers
each rated at 230 MMBtu per hour, that
burn coal to produce steam for
stationary source-wide heating and
power. In addition to the CHPP, the
source contains additional emission
units comprised of small and large
emergency engines, fire pumps and
generators, diesel-fired boilers, and
material handling equipment. Alaska’s
BACT analysis evaluated potential
controls to reduce NOX and PM2.5,
emissions from each of these emissions
units at the stationary source.154
TABLE 6—FORT WAINWRIGHT BACT SUMMARY
Pollutant
Alaska’s BACT determination, by source category
Fort Wainwright, Doyon Utilities
Coal-fired boilers (EUs 1–6)—each unit rated 230 MMBtu per hour
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PM2.5 .......................
• Operate and maintain a full stream baghouse at all times the units are in operation;
• PM2.5 emissions from DU EUs 1 through 6 shall not exceed 0.045 lb/MMBtu over a 3-hour averaging period; and
PM2.5 Serious Area and 189(d) Plan, EPA–R10–
OAR–2022–0115.
152 On September 25, 2023, Alaska withdrew its
BACT determination and analysis for SO2 controls
and emission limits at the Chena Power Plant.
Alaska evaluated potential NOX controls for each
emission unit, but because the EPA is approving
Alaska’s determination that NOX emissions are not
significant for PM2.5 formation in the Fairbanks
nonattainment area, Alaska is not required to
identify, adopt, or implement BACM or BACT for
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NOx on any sources in the Fairbanks PM2.5
Nonattainment Area. See 40 CFR 51.1006,
51.1010(a)(2)(ii).
153 Response to Comments Regarding Best
Available Control Technology Requirements on the
Air Plan Partial Approval and Partial Disapproval;
AK, Fairbanks North Star Borough; 2006 24-hour
PM2.5 Serious Area and 189(d) Plan, EPA–R10–
OAR–2022–0115.
154 On September 25, 2023, Alaska withdrew its
BACT determination and analysis for SO2 controls
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and emission limits at Fort Wainwright. Alaska
evaluated potential NOX controls for each emission
unit, but because the EPA is approving Alaska’s
determination that NOX emissions are not
significant for PM2.5 formation in the Fairbanks
nonattainment area, Alaska is not required to
identify, adopt, or implement BACM or BACT for
NOX on any sources in the Fairbanks PM2.5
Nonattainment Area. See 40 CFR 51.1006,
51.1010(a)(2)(ii).
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TABLE 6—FORT WAINWRIGHT BACT SUMMARY—Continued
Pollutant
Alaska’s BACT determination, by source category
• Conduct an initial performance test to obtain an emission rate.
Diesel-fired oil boilers (27 emissions units)
PM2.5 .......................
• PM2.5 emissions from the diesel-fired boilers shall not exceed 0.012 lb/MMBtu averaged over a 3-hour period, with the
exception of the waste fuel boilers which must comply with the State particulate matter emissions standard of 0.05
grains per dry standard cubic foot under 18 AAC 50.055(b)(1);
• Limit combined operation of FWA EUs 8, 9, and 10 to 600 hours per year; and
• Maintain good combustion practices by following the manufacturer’s maintenance procedures at all times of operation.
Large diesel-fired engines, fire pumps, and generators (8 emissions units; greater than 500 horsepower)
PM2.5 .......................
•
•
•
•
•
•
•
Limit combined operation of FWA EUs 11, 12, and 13 to 600 hours per year;
Limit operation of DU EU 8 to 500 hours per year;
PM2.5 emissions from DU EU 8, FWA EUs 50, 51, and 53 shall not exceed 0.15 g/hp-hr;
PM2.5 emissions from FWA EUs 11 through 13 and 54 shall not exceed 0.32 g/hp-hr;
Limit non-emergency operation of FWA EUs 50, 51, 53, and 54 to no more than 100 hours each per year;
Combust only ULSD; and
Maintain good combustion practices by following the manufacturer’s operating and maintenance procedures at all times
of operation.
Small emergency engines, fire pumps, and generators (41 emissions units)
PM2.5 .......................
• Combust only ULSD;
• Limit non-emergency operation of DU EUs 9, 12, 14, 22, 23, 29a, 30, 31a, 32, 33, 34, 35, 36, FWA EUs 26 through 39,
and 55 through 65 to no more than 100 hours each per year;
• For engines manufactured after the applicability dates of 40 CFR part 60 Subpart IIII, comply with the applicable particulate matter emission standards in 40 CFR part 60 Subpart IIII;
• Maintain good combustion practices by following the manufacturer’s operating procedures at all times of operation; and
• Demonstrate compliance with the numerical BACT emission limits (emission limit of 0.015–1 g/hp-hr (3-hour average)
varies by emission unit, listed in the State Air Quality Control Plan, Vol II, Chapter III.D.7.7, Table 7.7–13) by maintaining records of maintenance procedures conducted in accordance with 40 CFR parts 60 and 63, and the EU operating
manuals.
Material handling sources (6 emissions units; coal prep and ash handling)
PM2.5 .......................
• PM2.5 emissions from the material handling equipment EUs 7a–7c, 51a, and 51b shall be controlled by operating and
maintaining fabric filters at all times the units are in operation;
• PM2.5 emissions from DU EU 7a shall not exceed 0.0025 gr/dscf;
• PM2.5 emissions from DU EUs 7b, 7c, 51a, and 51 b shall not exceed 0.02 gr/dscf;
• PM2.5 emissions from DU EU 52 shall not exceed 1.42 tpy. Continuous compliance with the PM2.5 emissions limit shall
be demonstrated by complying with the fugitive dust control plan identified in the applicable operating permit issued to
the source in accordance with 18 AAC 50 and AS 46.14; and
• Compliance with the PM2.5 emission rates for the material handling units shall be demonstrated by following the fugitive
dust control plan and the manufacturer’s operating and maintenance procedures at all times of operation.
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Source: State Air Quality Control Plan, Vol II, Chapter III.D.7.7, Table 7.7–11 and Chapter III.D.7.7.8.3.4.
The EPA proposed to disapprove
Alaska’s BACT determination for PM2.5
and SO2 controls for each of the
emission sources at the CHPP.
Regarding PM2.5 controls for the coalfired boilers and material handling
equipment and PM2.5 and SO2 controls
for the small and large emergency
engines, fire pumps, and generators, and
diesel-fired boilers, the EPA proposed to
find Alaska’s BACT determinations are
appropriate. However, Alaska did not
submit source-specific permits or rules
with monitoring, recordkeeping, and
reporting (MRR) requirements necessary
to make these BACT requirements
enforceable as a practical matter.
Therefore, the EPA proposed to
disapprove the BACT determination for
these sources as not meeting the CAA
requirement that the SIP include
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enforceable emission limitations. The
EPA stated in the Proposal that Alaska
may rectify this issue by submitting the
MRR requirements necessary (such as
the requirements included in the
current operating permit) to ensure the
BACT requirements are enforceable as a
practical matter.
Regarding SO2 emission controls, the
EPA proposed to disapprove Alaska’s
SO2 BACT determinations and
associated infeasibility demonstrations
on several grounds that are detailed in
the Proposal and are not restated here.
The EPA proposed to approve
Alaska’s analysis that found no NH3specific emission controls for the
sources at this facility.
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b. Final Rule
The EPA is finalizing a partial
approval and partial disapproval of the
Fairbanks Serious Plan BACT
provisions for PM2.5 controls for each of
the emission sources at Fort
Wainwright. The EPA is finalizing a
partial approval because Alaska’s BACT
findings for PM2.5 (embodied in State
Air Quality Control Plan, Vol. II,
Chapter III.D.7.7, Tables 7.7–11 and 7.7–
13 and Chapter III.D.7.7.8.3.4) are
consistent with CAA section 189(b) and
40 CFR 51.1010(a). The EPA is
finalizing a partial disapproval because
the Fairbanks Serious Plan and
Fairbanks 189(d) Plan lack provisions
necessary to ensure the BACT
determinations for PM2.5 are enforceable
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as a practical matter as required by CAA
Sections 110(a)(2)(A) and 172(c)(7).
On September 25, 2023, Alaska
withdrew its SO2 BACT determinations
for Fort Wainwright. Therefore, the EPA
is finalizing partial disapproval of the
Fairbanks Serious Plan and Fairbanks
189(d) Plan because the plans do not
identify, adopt, and implement BACT
for SO2 at Fort Wainwright. The EPA is
finalizing approval of Alaska’s analysis
that found no NH3-specific emission
controls for the sources at this facility.
c. Comments and Responses
For a summary of relevant comments
and the EPA’s detailed responses, see
the Response to Comments document
for this requirement, included in the
docket for this action.155
ix. University of Alaska Fairbanks
Campus Power Plant
a. Summary of Proposal
The Fairbanks Campus Power Plant is
an existing stationary source owned and
operated by University of Alaska
Fairbanks (UAF) comprised of a
circulating fluidized bed (CFB) dual
fuel-fired boiler (coal and biomass) rated
at 295.6 MMBtu per hour. UAF installed
this emission unit in 2016–2018.156
Other emission units at the source
include a 13,266 horsepower (hp)
backup diesel generator, 13 diesel-fired
boilers, one classroom engine, one
diesel engine permitted but not yet
installed, and a coal handling system for
the new dual-fuel fired boiler.
The State’s BACT determination for
the Fairbanks Campus Power Plant
evaluated potential controls to reduce
NOX and PM2.5 emissions from each of
the emissions units at the source.157
TABLE 7—UNIVERSITY OF ALASKA FAIRBANKS CAMPUS POWER PLANT—BACT SUMMARY
Pollutant
Alaska’s BACT determination, by source category
University of Alaska Fairbanks
Dual fuel-fired boiler (EU 113)—unit rated at 295 MMBtu per hour; coal and woody biomass fuel; constructed in 2019.
PM2.5 .......................
• Operate and maintain fabric filters at all times the unit is in operation;
• PM2.5 emissions from EU 113 shall not exceed 0.012 lb/MMBtu over a 3-hour averaging period; and
• Maintain good combustion practices at all times of operation by following the manufacturer’s operating and maintenance procedures.
• Conduct an initial performance test to obtain an emission rate.
Mid-sized diesel-fired boilers (EUs 3 and 4)—each unit rated 180 MMBtu per hour
PM2.5 .......................
• PM2.5 emissions from EUs 3 and 4 shall not exceed 0.012 lb/MMBtu averaged over a 3-hour period while firing diesel
fuel;
• PM2.5 emissions from EU 4 shall not exceed 0.0075 lb/MMBtu averaged over a 3-hour period while firing natural gas;
• Maintain good combustion practices at all times of operation by following the manufacturer’s operating and maintenance procedures; and
• Limit NOX emissions from EUs 4 and 8 to no more than 40 tons per year combined.
Small-sized diesel-fired boilers (EUs 19–21)—each unit rated 6 MMBtu per hour
PM2.5 .......................
• Combined boilers operating limit of no more than 19,650 hours per year;
• PM2.5 emissions from EUs 19–21 shall not exceed 0.012 lb/MMBtu; and
• Maintain good combustion practices by following the manufacturer’s operating and maintenance procedures at all times
of operation.
Large diesel-fired engine (EU 8)—unit rated 13,266 horsepower
PM2.5 .......................
• PM2.5 emissions from EU 8 shall be controlled by operating positive crankcase ventilation and combusting only low ash
diesel at all times of operation;
• Limit NOX emissions from EUs 4 and 8 to no more than 40 tons per year combined;
• Limit non-emergency operation of EU 8 to no more than 100 hours per year; and
• PM2.5 emissions from EU 8 shall not exceed 0.32 g/hp-hr averaged over a 3-hour period.
Small diesel-fired engines (EUs 23–24, 26–29)
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PM2.5 .......................
•
•
•
•
Limit the operation of EU 27 to no more than 4,380 hours per year;
Limit non-emergency operation of EUs 24, 28, and 29 to no more than 100 hours per year each;
EU 27 shall comply with the Federal emission standards of NSPS Subpart IIII, Tier 3;
Maintain good combustion practices at all times of operation by following the manufacturer’s operating and maintenance procedures; and Demonstrate compliance with the numerical BACT emission limits (emission limit of 0.015–1 g/
hp-hr (3-hour average) varies by emission unit, listed in State Air Quality Control Plan, Vol II, Chapter III.D.7.7, Table
7.7–18) by maintaining records of maintenance procedures conducted in accordance with 40 CFR parts 60 and 63, and
the EU operating manuals.
155 Response to Comments Regarding Best
Available Control Technology Requirements on the
Air Plan Partial Approval and Partial Disapproval;
AK, Fairbanks North Star Borough; 2006 24-hour
PM2.5 Serious Area and 189(d) Plan, EPA–R10–
OAR–2022–0115.
156 The CFB dual fuel fired boiler replaced two
coal-fired boilers installed in 1962.
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157 On September 25, 2023, Alaska withdrew its
BACT determination and analysis for SO2 controls
and emission limits at the University of Alaska
Fairbanks Campus Power Plant. Alaska evaluated
potential NOX controls for each emission unit, but
because the EPA is approving Alaska’s
determination that NOX emissions are not
significant for PM2.5 formation in the Fairbanks
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nonattainment area, Alaska is not required to
identify, adopt, or implement BACM or BACT for
NOX on any sources in the Fairbanks PM2.5
Nonattainment Area. See 40 CFR 51.1006,
51.1010(a)(2)(ii).
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TABLE 7—UNIVERSITY OF ALASKA FAIRBANKS CAMPUS POWER PLANT—BACT SUMMARY—Continued
Pollutant
Alaska’s BACT determination, by source category
Pathogenic waste incinerator (EU 9a)—unit rated 533 lb per hour
PM2.5 .......................
•
•
•
•
PM2.5 emissions from EU 9A shall be controlled with a multiple chamber design;
Limit the operation of EU 9A to no more than 109 tons of waste combusted per year;
PM2.5 emissions from EU 9A shall not exceed 4.67 lb/ton;
Maintain good combustion practices at all times of operation by following the manufacturer’s operating and maintenance procedures; and
• Compliance with the proposed operational limit will be demonstrated by recording pounds of waste combusted for the
pathogenic waste incinerator.
Material handling sources (EUs 105, 107, 109–111, 114, 128–130); coal prep and ash handling
PM2.5 .......................
• PM2.5 emissions from EUs 105, 107, 109 through 111, 114, and 128 through 130 will be controlled by enclosing each
EU;
• PM2.5 emissions from the operation of the material handling units, except EU 111, will be controlled by installing, operating, and maintaining fabric filters and vents;
• Initial compliance with the emission rates for the material handling units, except EU 111, will be demonstrated with a
performance test to obtain an emission rate; and
• Comply with the numerical emission limits (emission limit of 0.003—0.050 gr/dscf and .00005 lb/ton (EU 111) varies by
emission unit listed in State Air Quality Control Plan, Vol II, Chapter III.D.7.7, Table 7.7–18—note double citation)
Source: State Air Quality Control Plan, Vol II, Chapter III.D.7.7, Table 7.7–16 and Chapter III.D.7.7.8.6.
khammond on DSKJM1Z7X2PROD with RULES5
The EPA proposed to disapprove
Alaska’s BACT provisions for PM2.5 and
SO2 controls for each of the emission
sources at the Fairbanks Campus Power
Plant. Regarding PM2.5 controls for the
dual fuel-fired boiler, backup diesel
generator, diesel-fired boilers, and
material handling sources; the PM2.5 and
SO2 controls for the pathogenic waste
incinerator; and the SO2 controls for the
diesel-fired engines, we proposed to
determine that Alaska’s BACT
determinations are appropriate.
However, Alaska did not submit as part
of the Fairbanks Serious Plan or
Fairbanks 189(d) Plan the emission
limits corresponding to Alaska’s SO2 or
PM2.5 BACT determinations for some
emission units, Alaska also did not
include the MRR requirements
necessary to make these BACT
requirements enforceable as a practical
matter. Therefore, the EPA proposed to
disapprove Alaska’s PM2.5 BACT
requirements for these sources as not
meeting the CAA requirement that the
SIP include enforceable emission
limitations.
The EPA noted that Alaska may
rectify this issue by submitting the
enforceable emission limitation and
monitoring, recordkeeping, and
reporting requirements necessary to
ensure the BACT requirements are
enforceable as a practical matter.158 The
158 Alaska did not submit source-specific permits
or regulations at part of the Fairbanks Serious Plan
or Fairbanks 189(d) Plan. Rather these SIP
submissions contain narrative provisions reflecting
Alaska’s BACT determinations, which list emission
limits and summarize monitoring requirements. For
certain BACT findings, Alaska in the narrative
directs the owner and operator of the source to
apply for a permit to implement the State’s BACT
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EPA also noted that the source-specific
SIP requirement for the material
handling unit, EU 111, should include
the operational requirement that the
building doors remain closed at all
times that ash loading is occurring.
Corresponding MRR conditions should
be included to ensure no visible
emissions escape the building.
Regarding the EPA’s proposed
disapproval of Alaska’s BACT
evaluation and determination for SO2
controls for the dual fuel-fired boiler,
the EPA based its proposed disapproval
on several grounds that are detailed in
the Proposal and are not restated here.
The EPA proposed to approve Alaska’s
analysis that found no NH3-specific
emission controls for the sources at this
facility.
b. Final Rule
The EPA is finalizing disapproval of
Alaska’s BACT determination for PM2.5
controls for the Small Diesel-Fired
Engines (EU IDs 23, 26, and 27). The
EPA is finalizing a partial approval and
partial disapproval of the Fairbanks
Serious Plan BACT provisions for PM2.5
controls for the remaining emission
units. The EPA is finalizing a partial
approval because Alaska’s BACT
determinations embodied in State Air
Quality Control Plan, Vol. II, Chapter
III.D.7.7, Table 7.7–16 and Chapter
III.D.7.7.8.6 are consistent with CAA
section 189(b) and 40 CFR 51.1010(a).
The EPA is finalizing a partial
disapproval because the Fairbanks
determinations. Alaska could potentially rectify the
enforceability issues with the current SIP
submissions by submitting the resulting permits or
portions thereof.
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Serious Plan and Fairbanks 189(d) Plan
lack provisions necessary to ensure the
BACT determinations are enforceable as
a practical matter as required by CAA
sections 110(a)(2)(A) and 172(c)(7).159
On September 25, 2023, Alaska
withdrew its SO2 BACT determinations
for the Fairbanks Campus Power Plant.
Therefore, the EPA is finalizing partial
disapproval of the Fairbanks Serious
Plan and Fairbanks 189(d) Plan because
the plans do not identify, adopt, and
implement BACT for SO2 at the
Fairbanks Campus Power Plant. The
EPA is finalizing approval of Alaska’s
analysis that found no NH3-specific
emission controls for the sources at this
facility.
c. Comments and Responses
For a summary of relevant comments
and the EPA’s detailed responses, see
the Response to Comments document
for this requirement, included in the
docket for this action.160
x. Zehnder Facility
a. Summary of Proposal
The Zehnder Facility (Zehnder) is an
electric generating facility that combusts
distillate fuel in combustion turbines to
provide power to the Golden Valley
Electric Association (GVEA) grid. The
power plant contains two fuel oil-fired
simple cycle gas combustion turbines
and two diesel-fired generators (electromotive diesels) used for emergency
159 See
supra, note 158.
to Comments Regarding Best
Available Control Technology Requirements on the
Air Plan Partial Approval and Partial Disapproval;
AK, Fairbanks North Star Borough; 2006 24-hour
PM2.5 Serious Area and 189(d) Plan, EPA–R10–
OAR–2022–0115.
160 Response
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power and to serve as black start
engines for the GVEA generation
system. The primary fuel is stored in
two 50,000 gallon above ground storage
tanks. Turbine startup fuel and electro-
motive diesel primary fuel is stored in
a 12,000 gallon above ground storage
tank.
Alaska’s BACT analysis for Zehnder
evaluated potential controls to reduce
NOX and PM2.5 emissions from its
simple cycle gas turbines, large dieselfired engines, and diesel-fired boilers.161
TABLE 8—ZEHNDER FACILITY BACT SUMMARY
Pollutant
Alaska’s BACT determination, by source category
Zehnder facility, Golden Valley Electric Authority
Fuel oil-fired simple cycle gas turbine (EUs 1 and 2)—each unit rated 268 MMBtu per hour
PM2.5 .......................
• Combust only low ash fuel;
• PM2.5 emissions from EUs 1 & 2 shall not exceed 0.012 lb/MMBtu over a 3-hour averaging period;
• Initial compliance with the proposed PM2.5 emission limit will be demonstrated by conducting a performance test to obtain an emission rate; and
• Maintain good combustion practices by following the manufacturer’s operating and maintenance procedures at all times
of operation.
Diesel-fired emergency generators (EUs 3 and 4)—each unit rated 28 MMBtu per hour
PM2.5 .......................
•
•
•
•
Limit non-emergency operation of the large diesel-fired engines to no more than 100 hours per year each;
PM2.5 emissions from EUs 3 and 4 shall not exceed 0.32 g/hp-hr over a 3-hour averaging period;
Demonstrate compliance with the numerical BACT emission limit by complying with 40 C.F.R 63 Subpart ZZZZ; and
Maintain good combustion practices by following the manufacturer’s operating and maintenance procedures at all times
of operation.
Diesel-fired boilers (EUs 10 and 11)—each unit rated 1.7 MMBtu per hour
PM2.5 .......................
• PM2.5 emissions shall not exceed 0.012 lb/MMBtu over a 3-hour averaging period;
• Demonstrate compliance with the numerical BACT emission limit by complying with 40 CFR part 63 Subpart JJJJJJ;
and
• Maintain good combustion practices by following the manufacturer’s operating and maintenance procedures at all times
of operation.
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Source: State Air Quality Control Plan, Vol II, Chapter III.D.7.7, Table 7.7–14 and Chapter III.D.7.7.8.4.
The EPA proposed to disapprove
Alaska’s BACT determination for PM2.5
and SO2 controls for each of the
emission sources at the Zehnder facility.
Regarding PM2.5 controls for the two
fuel oil-fired simple cycle gas
combustion turbines, two diesel-fired
generators, and two diesel fired boilers,
the EPA found Alaska’s BACT
determinations were appropriate.
However, Alaska did not include the
MRR requirements necessary to make
these BACT requirements enforceable as
a practical matter. Therefore, the EPA
proposed to disapprove Alaska’s PM2.5
BACT requirements for these sources as
not meeting the CAA requirement that
the SIP include enforceable emission
limitations. The EPA noted that Alaska
can rectify this issue by submitting the
emission limit, monitoring,
recordkeeping, and reporting
requirements necessary to ensure the
BACT requirements are enforceable as a
practical matter.162
161 On September 25, 2023, Alaska withdrew its
BACT determination and analysis for SO2 controls
and emission limits at Zehnder. Alaska evaluated
potential NOX controls for each emission unit, but
because the EPA is approving Alaska’s
determination that NOX emissions are not
significant for PM2.5 formation in the Fairbanks
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The EPA proposed to disapprove
Alaska’s BACT determinations and
analysis for SO2 controls for each of the
emissions units. The basis for EPA’s
proposed disapproval is included in the
Proposal and is not restated here.
The EPA proposed to approve
Alaska’s analysis that found no NH3specific emission controls for the
sources at this facility.
b. Final Rule
The EPA is finalizing partial approval
and partial disapproval of the Fairbanks
Serious Plan BACT provisions for PM2.5
controls for all emission units at
Zehnder. The EPA is finalizing a partial
approval because Alaska’s BACT
determinations embodied in State Air
Quality Control Plan, Vol. II, Chapter
III.D.7.7, Table 7.7–14 and Chapter
III.D.7.7.8.4 are consistent with CAA
section 189(b) and 40 CFR 51.1010(a).
The EPA is finalizing a partial
disapproval because the Fairbanks
Serious Plan and Fairbanks 189(d) Plan
nonattainment area, Alaska is not required to
identify, adopt, or implement BACM or BACT for
NOX on any sources in the Fairbanks PM2.5
Nonattainment Area. See 40 CFR 51.1006,
51.1010(a)(2)(ii).
162 See supra, note 158.
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lack provisions necessary to ensure the
PM2.5 BACT determinations are
enforceable as a practical matter as
required by CAA sections 110(a)(2)(A)
and 172(c)(7).
On September 25, 2023, Alaska
withdrew its SO2 BACT determinations
for Zehnder. Therefore, the EPA is
finalizing partial disapproval of the
Fairbanks Serious Plan and Fairbanks
189(d) Plan because the plans do not
identify, adopt, and implement BACT
for SO2 at Zehnder. The EPA is
finalizing approval of Alaska’s analysis
that found no NH3-specific emission
controls for the sources at this facility.
c. Comments and Responses
For a summary of relevant comments
and the EPA’s detailed responses, see
the Response to Comments document
for this requirement, included in the
docket for this action.163
163 Response to Comments Regarding Best
Available Control Technology Requirements on the
Air Plan Partial Approval and Partial Disapproval;
AK, Fairbanks North Star Borough; 2006 24-hour
PM2.5 Serious Area and 189(d) Plan, EPA–R10–
OAR–2022–0115.
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Federal Register / Vol. 88, No. 232 / Tuesday, December 5, 2023 / Rules and Regulations
xi. North Pole Power Plant
a. Summary of Proposal
The North Pole Power Plant is an
electric generating facility that combusts
distillate fuel in combustion turbines to
provide power to the GVEA grid. The
power plant contains two fuel oil-fired
simple cycle gas combustion turbines,
two fuel oil-fired combined cycle gas
combustion turbines, one fuel oil-fired
emergency generator, and two propanefired boilers. The State’s BACT
84659
determination for the North Pole Power
Plant evaluated potential controls to
reduce NOX and PM2.5 emissions from
its simple cycle gas turbines, combined
cycle gas turbines, large diesel-fired
engines, and propane-fired boilers.164
TABLE 9—NORTH POLE POWER PLANT BACT SUMMARY
Pollutant
Alaska’s BACT determination, by source category
North Pole Power Plant, Golden Valley Electric Authority
Fuel oil-fired simple cycle gas turbine (EUs 1 and 2)—each unit rated 672 MMBtu per hour PM2.5 potential to emit tons per year
PM2.5 .......................
• Combust only low ash fuel;
• Maintain good combustion practices at all times of operation by following the manufacturer’s operating and maintenance procedures;
• PM2.5 emissions from EUs 1 & 2 shall not exceed 0.012 lb/MMBtu over a 3-hour averaging period; and
• Initial compliance with the proposed PM2.5 emission limit will be demonstrated by conducting a performance test to obtain an emission rate.
Fuel oil-fired combined cycle gas turbine (EUs 5 and 6)—each unit rated 455 MMBtu per hour
PM2.5 .......................
• PM2.5 emissions from EUs 5 and 6 shall be limited by complying with the combined annual NOX limit listed in Operating
Permit AQ0110TVP03 Conditions 13 and 12, respectively;
• PM2.5 emissions from EUs 5 & 6 shall not exceed 0.012 lb/MMBtu over a 3-hour averaging period;
• Initial compliance with the proposed PM2.5 emission limit will be demonstrated by conducting a performance test to obtain an emission rate; and
• Maintain good combustion practices at all times of operation by following the manufacturer’s operating and maintenance procedures.
Large diesel-fired engine (EU 7)—unit rated 400 kW/619 horsepower
PM2.5 .......................
• PM2.5 emissions from EU 7 shall be controlled by operating with positive crankcase ventilation;
• PM2.5 emissions from EU 7 shall be controlled by limiting operation to no more than 52 hours per 12 month rolling period;
• PM2.5 emissions from EU 7 shall not exceed 0.32 g/hp-hr over a 3-hour averaging period; and
• Maintain good combustion practices by following the manufacturer’s operating and maintenance procedures at all times
of operation.
Propane-fired boiler (EUs 11 and 12)—each unit rated 5 MMBtu per hour
PM2.5 .......................
• Burn only propane as fuel in EUs 11 and 12;
• PM2.5 emissions from EUs 11 and 12 shall not exceed 0.008 lb/MMBtu over a 3-hour averaging period; and
• Compliance with the emission limit will be demonstrated with records of maintenance following original equipment manufacturer recommendations for operation and maintenance and periodic measurements of O2 balance.
• Maintain good combustion practices by following the manufacturer’s operating and maintenance procedures at all times
of operation.
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Source: State Air Quality Control Plan, Vol II, Chapter III.D.7.7, Table 7.7–14 and Chapter III.D.7.7.8.5.
The EPA proposed to disapprove
Alaska’s Fairbanks Serious Plan and
Fairbanks 189(d) Plan BACT provisions
for PM2.5 and SO2 controls for each of
the emission sources at the North Pole
Power Plant. Regarding PM2.5 controls
for the two fuel oil-fired simple cycle
gas combustion turbines, two fuel oilfired combined cycle gas combustion
turbines, and large diesel-fired engine
and PM2.5 the EPA proposed to find
Alaska’s BACT determinations are
appropriate. However, Alaska did not
submit as part of the Fairbanks Serious
Plan or Fairbanks 189(d) Plan the
enforceable emission limits and
associated MRR requirements needed
for determining compliance with all
BACT limits or requirements and to
make the limits or requirements
enforceable as a practical matter.
Therefore, the EPA proposed to
disapprove Alaska’s PM2.5 BACT
requirements for these sources as not
meeting the CAA requirement that the
SIP include enforceable emission
limitations. The EPA noted that Alaska
can rectify this issue by submitting the
emission limits and monitoring,
recordkeeping, and reporting
requirements necessary to ensure the
BACT requirements are enforceable as a
practical matter.165
Regarding SO2 controls, the EPA
proposed to find Alaska’s BACT
determination for SO2 controls at the
two propane-fired boilers embodied in
State Air Quality were appropriate.
However, Alaska also did not submit the
MRR requirements needed for
determining compliance with this BACT
determination. The EPA proposed to
disapprove Alaska’s SO2 BACT
determinations for the simple cycle gas
turbines and combined-cycle on several
164 On September 25, 2023, Alaska withdrew its
BACT findings and analysis for SO2 controls and
emission limits at the North Pole Power Plant.
Alaska evaluated potential NOX controls for each
emission unit, but because the EPA is approving
Alaska’s determination that NOX emissions are not
significant for PM2.5 formation in the Fairbanks
nonattainment area, Alaska is not required to
identify, adopt, or implement BACM or BACT for
NOX on any sources in the Fairbanks PM2.5
Nonattainment Area. See 40 CFR 51.1006,
51.1010(a)(2)(ii).
165 See supra, note 158.
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grounds included in the Proposal and
not restated here.
The EPA proposed to approve
Alaska’s analysis that found no NH3specific emission controls for the
sources at this facility.
b. Final Rule
The EPA is finalizing partial approval
and partial disapproval of the Fairbanks
Serious Plan BACT provisions for PM2.5
controls for all emission units at the
North Pole Power Plant. The EPA is
finalizing a partial approval because
Alaska’s PM2.5 BACT determinations
embodied in State Air Quality Control
Plan, Vol II, Chapter III.D.7.7, Table 7.7–
14 and Chapter III.D.7.7.8.5 are
consistent with CAA section 189(b) and
40 CFR 51.1010(a). The EPA is
finalizing a partial disapproval because
the Fairbanks Serious Plan and
Fairbanks 189(d) Plan lack provisions
necessary to ensure the BACT
determinations are enforceable as a
practical matter as required by CAA
sections 110(a)(2)(A) and 172(c)(7).
On September 25, 2023, Alaska
withdrew its SO2 BACT determinations
for the North Pole Power Plant.
Therefore, the EPA is finalizing partial
disapproval of the Fairbanks Serious
Plan and Fairbanks 189(d) Plan because
the plans do not identify, adopt, and
implement BACT for SO2 at the North
Pole Power Plant.
The EPA is finalizing approval of
Alaska’s analysis that found no NH3specific emission controls for the
sources at this facility.
c. Comments and Responses
For a summary of relevant comments
and the EPA’s detailed responses, see
the Response to Comments document
for this requirement, included in the
docket for this action.166
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xii. Alaska’s Identification and
Adoption of Additional Measures and
Demonstration of 5% Reduction in
Emissions Pursuant to CAA Section
189(d)
a. Summary of Proposal
The Fairbanks 189(d) Plan included a
reevaluation of previously rejected
control measures, as noted above.
Alaska revised its control strategy in
two primary ways as an outgrowth of
this reevaluation. First, Alaska added a
burn down period of 3 hours for solid
fuel heating devices that begins upon
the effective date and time of a
166 Response to Comments Regarding Best
Available Control Technology Requirements on the
Air Plan Partial Approval and Partial Disapproval;
AK, Fairbanks North Star Borough; 2006 24-hour
PM2.5 Serious Area and 189(d) Plan, EPA–R10–
OAR–2022–0115.
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curtailment announcement. Second,
Alaska added specific requirements to
document economic hardship as part of
a NOASH curtailment program waiver
for solid fuel devices.
As part of its reevaluation of control
measures, Alaska provided additional
information for a number of control
measures considered in the BACM
analysis. The Fairbanks 189(d) Plan
included additional consideration of
banning installation of solid fuel
devices in new construction, limiting
heating oil to ultra-low sulfur diesel, dry
wood requirements, emissions controls
for small area sources, mobile sources,
and most stringent measures.167
However, Alaska did not reevaluate
BACT-level controls for stationary
sources. Specifically, there were a
number of SO2 control technologies that
were evaluated and dismissed under the
Fairbanks Serious Plan that were not
reconsidered in the Fairbanks 189(d)
Plan. Therefore, the EPA proposed to
find that Alaska had not sufficiently met
the requirement under CAA section
189(d) to reevaluate additional measures
that could lead to expeditious
attainment.168
Regarding the requirement to
demonstrate five percent annual
reductions, Alaska included in the
Fairbanks 189(d) Plan a control strategy
analysis that demonstrates annual
reductions of PM2.5 are greater than five
percent through 2024, Alaska’s
projected attainment year. However,
CAA section 189(d) and 40 CFR
51.1010(c)(4) and (5) require that the
control strategy contain not just
measures required to achieve five
percent annual reductions, but all
required BACM and additional
measures that collectively achieve
attainment as expeditiously as
practicable.
The EPA stated in the Proposal that
Alaska did not adopt and implement all
available and required control measures
as part of the control strategy for either
the Fairbanks Serious Plan or Fairbanks
189(d) Plan. Therefore, Alaska did not
necessarily adopt and implement all
control measures that collectively
achieve attainment as expeditiously as
possible. Thus, the EPA proposed to
disapprove the control strategy included
in the Fairbanks 189(d) Plan as not
meeting the full requirements of CAA
section 189(d) and 40 CFR 51.1010(c).
167 State Air Quality Control Plan, Vol. II, Chapter
III.D.7.7.12, adopted November 18, 2020.
168 See 40 CFR 51.1010(c)(2)(ii). On September
25, 2023, Alaska withdrew its BACT determinations
and analysis for SO2 controls and emission limits
at all major stationary sources.
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b. Final Rule
The EPA did not receive comments on
these requirements and is finalizing the
disapproval as proposed.
4. Attainment Demonstration and
Modeling
i. Summary of Proposal
The EPA proposed to determine that
Alaska’s attainment demonstration did
not fully meet CAA requirements. The
EPA noted that correct identification of
the most expeditious attainment date
requires an evaluation based upon
expeditious implementation of the
required emission controls. The EPA
proposed to disapprove in part the
Fairbanks Serious Plan and Fairbanks
189(d) Plan because Alaska did not
adopt all control measures necessary to
satisfy the BACM and BACT
requirements and the requirement to
adopt all measures necessary to achieve
attainment as expeditiously as
practicable. Therefore, the EPA could
not assess whether Alaska identified the
expeditious attainment date for
modeling purposes.
Therefore, the EPA proposed to find
that the attainment demonstration in the
Fairbanks 189(d) Plan does not meet the
requirements of 40 CFR 51.1011(b)(2).
The EPA noted that Alaska is currently
engaged in a multi-year effort to develop
a new Fairbanks modeling platform, as
outlined in State Air Quality Control
Plan, Appendix III.D.7.8 of the
Fairbanks 189(d) Plan. The EPA made
clear in the Proposal that it continues to
support Alaska’s modeling efforts and
will review updated modeling and
attainment analysis when submitted by
the State.
The EPA proposed to approve of the
design value Alaska calculated for
modeling purposes. For base year
modeling purposes, the 64.7 mg/m3 fouryear average value is appropriate as
measured between 2016–2019 at the
Hurst Road monitor in the North Pole
portion of the Fairbanks Nonattainment
Area. The base year emissions inventory
Alaska used for its attainment
demonstration in the Fairbanks 189(d)
Plan represented one of the three years
that the EPA used to determine that the
area failed to attain by the Serious area
attainment date. We stated that this base
year is consistent with the requirements
of 40 CFR 51.1011(b)(3).
Finally, the EPA proposed to partially
disapprove Alaska’s control strategy as
not meeting the requirements of CAA
section 189(b) and 40 CFR 51.1010.
Accordingly, the control strategies
modeled as part of Alaska’s attainment
demonstration are not consistent with
the control strategies required pursuant
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to 40 CFR 51.1003 and 40 CFR
51.1010.169 For these reasons, the EPA
proposed to disapprove the attainment
demonstration in the Fairbanks 189(d)
Plan.
khammond on DSKJM1Z7X2PROD with RULES5
ii. Final Rule
The EPA is finalizing disapproval of
the attainment demonstration in the
Fairbanks 189(d) Plan as not meeting
the requirements of 40 CFR 51.1011(b).
iii. Comments and Responses
Comment: Alaska commented that it
has been working since 2017 to gather
the necessary data and update known
modeling deficiencies to satisfy the
EPA’s modeling requirements. Alaska
stated that the Community Multiscale
Air Quality (CMAQ) model is an EPA
product upon which Alaska relies to
satisfy its planning duties under the
CAA. Alaska has been coordinating with
the EPA and an international
consortium of scientists to update the
known deficiencies in the model.
Alaska stated that after more than three
years of interdisciplinary coordination,
Alaska is now able to produce an air
quality model that will rectify these
known deficiencies. However, Alaska
asserted that the EPA’s intention to
finalize this action guarantees that
Alaska’s work with the air quality
model will ‘‘never see the light of day’’
because the EPA’s final action sets into
motion irreversible events including a
sanction clock and a Federal
Implementation Plan (FIP) clock that
will expire before Alaska can complete
the necessary modeling work, seek
public comment, and formally submit
the model as a SIP update to the EPA.
Alaska noted that the EPA has made it
clear in its proposed action to the
Fairbanks 189(d) Plan that the model in
its current state is not sufficient to meet
the attainment demonstration
requirements in the PM2.5 SIP
Requirements Rule, and the timing of
this proposed Consent Decree
guarantees the outcome of sanctions and
a FIP.
Response: The EPA disagrees with
Alaska that this final action ensures the
imposition of mandatory sanctions or
promulgation of a FIP. As discussed in
the section IV of this preamble, the CAA
provides time for the State to rectify any
SIP deficiency before sanctions are
triggered and before the EPA is required
to promulgate a FIP. As discussed in the
Proposal and previously in this
preamble, the primary basis for the
EPA’s disapproval of the Fairbanks
189(d) Plan attainment demonstration is
that neither the Fairbanks Serious Plan
169 40
CFR 51.1011(b)(4).
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nor the Fairbanks 189(d) Plan fully meet
the CAA control strategy requirements.
Alaska may rectify these issues by
adopting the necessary control
requirements and incorporating the
projected emissions reductions into its
modeled attainment demonstration.
With respect to improving the
modeling platform used to produce the
attainment demonstration, the EPA
supports Alaska’s efforts to develop a
new modeling platform that addresses
the identified deficiencies and has
worked closely with the State to
develop a new modeling platform for
use in future attainment
demonstrations. As detailed in Alaska’s
Technical Modeling Report 170 and per
discussions between EPA Region 10 and
ADEC staff, Alaska will begin the next
round of attainment demonstration
modeling in late summer or fall 2023
using the new modeling platform. Based
on the effective date of this final action,
sanctions will not be imposed until
2025, leaving ample time for Alaska to
develop and submit an updated SIP.
The EPA approval of the SIP, which is
the event that would stop the sanctions
from being implemented, requires that
the submitted corrects all identified
deficiencies.
Comment: Alaska acknowledged that
the modeling platform the State used for
the Fairbanks 189(d) Plan is outdated in
that it does not reflect the current state
of scientific knowledge about
meteorological and photochemical
processes contributing to PM2.5
formation in Fairbanks. Additionally,
Alaska stated that there is no
quantitative performance evaluation for
the North Pole (Hurst Road) monitor
because there were not speciated PM2.5
data for the time period of the model
performance evaluation. Alaska noted
that the modeling is based on 2008
meteorological episodes that have not
been updated or replaced since
development of the Moderate Area SIP.
Alaska noted that their Fairbanks
modeling is now being updated to
include: the use of updated CMAQ and
WRF configurations, updated
preprocessor modeling, model
performance evaluation at both the
Hurst Road monitor in North Pole and
NCORE monitor in Fairbanks based on
PM2.5 speciation data from those
monitors, and updated emission
inventories. Alaska also stated that its
updated model performance evaluation
is based on a new meteorological
170 Alaska Department of Environmental
Conservation (DEC) Division of Air Quality
Technical Analysis Modeling Report for phase 1, 2,
and 3 (Last Update February 10, 2023), available at
https://dec.alaska.gov/media/25pfupho/121technical-modeling-report-02-10-2023.pdf.
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episode representative of wintertime
conditions in the nonattainment area.
Alaska further detailed the ongoing
efforts to improve meteorological model
performance and update how
atmospheric chemistry is coded into the
model, with the goal of enhancing the
model’s capability to simulate
secondary sulfate formation.
Alaska stated that with most modeling
deficiencies resolved, Alaska can now
conduct a major stationary source SO2
sensitivity-based precursor
demonstration. Alaska concluded that
the EPA should avail itself of the
discretion granted by the CAA and
carefully consider compelling new
information to remedy the problems
created by the CMAQ model and delays
inherent in working with that model.
Response: The EPA remains
committed to working with Alaska on
improving the modeling platform used
for attainment modeling in the
nonattainment area. The EPA agrees that
model performance improvements have
likely resulted in a more robust
modeling platform for SIP modeling in
the Fairbanks nonattainment area, and
the EPA will review the updated
attainment demonstration when it
submitted by the State as part of a new
SIP submission.
The EPA disagrees, however, with
Alaska’s assertion that updates to the
model are or have been a prerequisite to
meeting all CAA planning requirements
for Serious PM2.5 Nonattainment Areas
or Serious PM2.5 Areas that Fail to
Attain. In particular, Alaska was
required to identify, adopt, and
implement BACM and BACT on all
sources of direct PM2.5 and PM2.5
precursors. This requirement is
generally independent of attainment
needs. Per the CAA and PM2.5 SIP
Requirements Rule, Alaska was required
to adopt these controls before the
Serious area attainment date of
December 31, 2019.171 After the
Fairbanks PM2.5 Nonattainment Area
failed to attain by December 31, 2019,
Alaska was required to adopt—by
December 31, 2020—such additional
measures as necessary to achieve
attainment as expeditiously as
practicable.172 The updates to the
modeling platform that Alaska is
completing were not necessary to
adopting the controls required by the
CAA.
Similarly, to the extent Alaska is
making these updates to support a
future SO2 precursor demonstration,
171 CAA section 189(b)(1)(B); 40 CFR 51.1010(a)
and 40 CFR 51.1011(b)(5).
172 CAA section 189(d); 40 CFR 51.1003(c)(2) and
40 CFR 51.1010(c).
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this is not a required element of either
a Serious plan or plan meeting the
requirements of CAA section 189(d).
Precursor demonstrations are optional
components of these plans.173 The EPA
further notes that it considers the State’s
overall control strategy and attainment
demonstration when determining the
approvability of any PM2.5 precursor
demonstration for a nonattainment area.
Source apportionment studies of the
region 174 have shown that sulfate is a
substantial contributor to measured
PM2.5 concentrations in the
nonattainment area. The EPA recognizes
that modeling deficiencies were the
primary reason that Alaska chose not to
submit a major stationary source SO2
precursor demonstration as part of the
Fairbanks Serious Plan or Fairbanks
189(d) Plan. However, without
additional analysis, data, or information
submitted as a SIP revision, neither the
Fairbanks Serious Plan nor the
Fairbanks 189(d) Plan contain support
for the hypothesis that major stationary
sources of SO2 do not significantly
contribute to measured sulfate
concentrations in the nonattainment
area.
As mentioned by the State, the
ALPACA research study may result in
peer-reviewed journal articles that
provide insights on sulfate sources and
chemistry in the nonattainment area.
The EPA would weigh these peerreviewed studies along with model
performance, precursor model runs, and
other available data and information
when evaluating a major stationary
source SO2 precursor demonstration
submitted as a SIP revision.
5. Reasonable Further Progress
i. Summary of Proposal
In the Proposal, the EPA explained
that Alaska withdrew and replaced the
State Air Quality Control Plan, Chapter
III.D.7.10, as part of submission of the
Fairbanks 189(d) Plan. The RFP
provisions included in the
Fairbanks189(d) Plan are based on
Alaska’s proposed control strategy
designed to meet the requirements of
CAA sections 189(b) and 189(d), and 40
CFR 51,1010(a) and (c), based on a
projected attainment date of 2024.
173 40
CFR 51.1006.
(2016). Source apportionment
of PM2.5 at multiple Northwest U.S. sites: Assessing
regional winter wood smoke impacts from
residential wood combustion. Atmospheric
Environment, 142, 210–219. Available at: https://
doi.org/10.1016/j.atmosenv.2016.07.048. Ward
(2013). The Fairbanks, Alaska PM2.5 Source
Apportionment Research Study Winters 2005/
2006–2012/2013, and Summer 2012. University of
Montana-Missoula Center for Environmental Health
Sciences. Available at: https://dec.alaska.gov/air/
anpms/communities/fbks-pm2-5-science/.
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Therefore, the approvability of the plan
with respect to RFP requirements is
dependent, in part, on the approvability
of the control strategy and attainment
demonstration. Specifically, to meet the
RFP requirement, the State must include
a schedule describing the
implementation of control measures
required by 40 CFR 51.1010.175
Moreover, the RFP projected emissions
for each milestone year must be based
on the anticipated implementation
schedule for control measures required
by 40 CFR 51.1010.176 Thus, if the
control strategy does not include all
required control measures, then the RFP
provisions will be deficient.
Similarly, in the Proposal, the EPA
stated that the purpose of the RFP
requirement is to demonstrate that the
attainment plan will achieve annual
incremental reductions in emissions
between the base year and the
attainment date that is as expeditious as
practicable.177 Accordingly, if the
attainment year does not reflect the
most expeditious year practicable, then
the State’s evaluation of RFP will not
accurately project progress towards the
most expeditious attainment year. The
EPA proposed to disapprove Alaska’s
attainment demonstration and to
partially disapprove Alaska’s control
strategy. Therefore, the EPA proposed to
disapprove the Fairbanks 189(d) Plan
with respect to RFP requirements.
should be 90 percent and the State
ought to be held to this number.
Response: The EPA interprets the
comment as referring to the RFP
provisions of the Fairbanks 189(d) Plan
in which Alaska projected 50%
compliance with the solid fuel burning
device curtailment program.179
Specifically, Alaska projected 50%
compliance with the curtailment
program by 2026.180 First, the EPA did
not impose this number. Rather, Alaska
projected this number based on its
assessment of the compliance rate and
taking into consideration that
curtailments do not necessarily apply to
all portions of the nonattainment area at
the same time.181 The EPA is not
approving the RFP provisions as a
whole and expects Alaska to re-evaluate
the compliance rate in a subsequent SIPsubmission. The EPA will evaluate the
projection at that time. The EPA takes
no position at this time as to whether
the RFP provisions must assume a 90
percent compliance rate for the
curtailment program. Any compliance
rate must be supported by facts, and
reasonable assumptions about future
compliance. The EPA does note,
however, that better compliance with
the curtailment program will translate
into significant reductions in direct
PM2.5 emissions. The EPA, thus,
supports all efforts to fully implement
and enforce this measure.
ii. Final Rule
The EPA is finalizing disapproval of
the RFP provisions of the Fairbanks
189(d) Plan as proposed.
6. Quantitative Milestones
iii. Comments and Responses
Comment: Alaska cross referenced its
comments regarding precursor
demonstration and attainment
demonstrations.
Response: The EPA incorporates its
responses to Alaska comments regarding
the optional SO2 precursor
demonstration and attainment
demonstrations here. Given the inherent
interrelationships between the control
strategy, modeled attainment
demonstration, and RFP, the
deficiencies in the control strategy and
attainment demonstration discussed in
the Proposal and previously in this
preamble render the RFP provisions of
the Fairbanks 189(d) plan similarly
deficient.178
Comment: One commenter noted that
the EPA only allows the State to take
credit for 50 percent compliance, but it
175 40
CFR 51.1012(a)(1).
CFR 51.1012(a)(2).
177 40 CFR 51.1012(a).
178 See 40 CFR 51.1012.
176 40
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i. Summary of Proposal
The EPA noted in the Proposal that,
similar to the RFP requirements, Alaska
withdrew and resubmitted State Air
Quality Control Plan, Vol II, Chapter
III.D.7.10 as part of submission of the
Fairbanks 189(d) Plan. The quantitative
milestones (QMs) are based on Alaska’s
proposed control strategy and
attainment date of 2024. Therefore, the
approvability of the QMs is dependent,
in part, on the approvability of the
control strategy and modeled attainment
demonstration. Specifically, if the
control strategy does not include all
required control measures, then the
QMs will necessarily be deficient. The
EPA noted that Alaska will need to
submit a new attainment demonstration
with a new projected attainment date,
and by extension, reevaluate whether
the QMs for each milestone year are
appropriate. The control strategy did not
179 State Air Quality Control Plan Volume II,
Chapter III.D.7.10, at p. 9, adopted November 18,
2020.
180 Id.
181 Id. at Vol. III, Appendix III.D.7.10 Fairbanks
5% Plan SIP Control Measures Benefits
Spreadsheet.
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contain all required control measures.
Therefore, the QMs are, by extension,
deficient. Thus, the EPA proposed to
disapprove the State Air Quality Control
Plan, Vol II, Chapter III.D.7.10, with
respect to QMs.
ii. Final Rule
The EPA did not receive any
comments on this requirement and is
finalizing disapproval of the
quantitative milestone provisions in the
Fairbanks 189(d) Plan as proposed.
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7. Contingency Measures
i. Summary of Proposal
In the Proposal, the EPA explained
that Alaska provided two specific
measures intended to address the
contingency measures requirement for
purposes of the Fairbanks Serious Plan
adopted in 18 AAC 50.077(n). Both of
these measures pertain to removal of
certain wood fired heating devices upon
the triggering of the contingency
measure as a result of one of the four
regulatory triggering events as required
in 40 CFR 51.1014. The first of these
measures requires owners of older EPAcertified wood fired heating devices,
i.e., those manufactured at least 25 years
prior to the triggering event, to remove
the device upon sale of the property or
by December 31, 2024, whichever is
earlier. The second of these measures
requires the owners of new EPAcertified wood fired hearing devices,
i.e., those manufactured less than 25
years prior to the triggering event, to
remove the device prior to reaching 25
years from the date of manufacture.
The EPA did not approve these
measures as meeting contingency
measure requirements, but did approve
them as SIP strengthening on September
24, 2021 (86 FR 52997). By their terms,
however, these measures were triggered
on October 2, 2020,182 the effective date
of the EPA’s finding that the area failed
to attain the standard by the outermost
serious area attainment date of
December 31, 2019.
In the Proposal, the EPA also
explained that Alaska provided one
additional measure intended to meet the
contingency measure requirements for
purposes of the Fairbanks 189(d) Plan.
This new provision in the Emergency
Episode Plan, incorporates a
requirement that, if triggered, would
lower the air quality woodstove
curtailment Stage 2 threshold from 30
mg/m3 to 25 mg/m3 within the Fairbanks
182 Determination of Failure To Attain by the
Attainment Date and Denial of Serious Area
Attainment Date Extension Request; AK: Fairbanks
North Star Borough 2006 24-Hour Fine Particulate
Matter Serious Nonattainment Area, 85 FR 54509,
September 2, 2020.
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PM2.5 Area. The EPA proposed to
approve the revisions to the Fairbanks
Emergency Episode Plan as SIP
strengthening because it would provide
for emission reductions even though it
would not meet applicable requirements
for a contingency measure. The EPA
proposed to disapprove the Fairbanks
Serious Plan, and Fairbanks 189(d) Plan
submissions as not meeting the
contingency measure requirements of
CAA section 172(c)(9) and 40 CFR
51.1014. The EPA proposed to
disapprove the Fairbanks Serious Plan
for not meeting the contingency
measure requirements because (1) the
measures were already triggered and
therefore were no longer conditional
and prospective, (2) the measures would
only achieve 0.01 tons per day
reductions in the first year of
implementation, and (3) the measures
would not achieve emission reductions
approximately equal to one-year’s-worth
of RFP at any time after being triggered.
The EPA proposed to disapprove the
contingency measure included in the
Fairbanks 189(d) Plan because (1) the
measure would not achieve emission
reductions approximately equal to oneyear’s-worth of RFP (2) the measure
would not achieve emission reductions
of all plan precursors, including SO2
and NH3, and (3) Alaska did not include
an adequate reasoned justification for
why any additional potential
contingency measures were
infeasible.183
ii. Final Rule
We note that on February 10, 2022,
the EPA approved and incorporated 18
AAC 50.030(c) by reference into the SIP,
State effective November 7, 2020 (87 FR
7722). The EPA has determined that this
current, SIP-approved version of 18
AAC 50.030(c) correctly provides for the
four triggering events upon which
continency measures should go into
effect. In addition, on September 24,
2021 (86 FR 52997), the EPA approved
183 The EPA notes that it indicated in the
Proposal that it proposed to approve Volume II,
Chapter II.D.7.11 Contingency Measures in the
Proposal. This chapter summarizes Alaska’s
contingency measures and provides Alaska’s
explanation for why its measures meet CAA
requirements. However, the EPA made clear in the
Proposal that it proposed to disapprove the
Fairbanks Serious Plan and Fairbanks 189(d) Plan
as not meeting the contingency measure
requirements. The EPA is finalizing the disapproval
as proposed. Given that the EPA is disapproving the
Fairbanks Serious Plan and Fairbanks 189(d) Plan
as not meeting the contingency measure
requirements as proposed, the EPA is also
disapproving State Air Quality Control Plan
Volume II, Chapter II.D.7.11 Contingency Measures.
Approving Volume II, Chapter II.D.7.11
Contingency Measures would be inconsistent with
the bases for disapproval of the Fairbanks Serious
Plan and Fairbanks 189(d) Plan and confusing.
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and incorporated by reference the two
measures from the Fairbanks Serious
Plan related to replacement of woodfired heating devices in 18 AAC
50.077(n) as SIP strengthening. In this
action, the EPA has determined that
these provisions do not meet
contingency measures requirements
because they are already triggered and
implemented. In this action, the EPA is
approving the new measure from the
Fairbanks 189(d) Plan lowering the
curtailment Stage 2 threshold from 30
mg/m3 to 25 mg/m3 as SIP strengthening,
but the EPA has determined that this
measure alone is insufficient to meet
contingency measures requirements.
Thus, the EPA is disapproving the
Fairbanks Serious Plan and Fairbanks
189(d) Plan with respect to the
contingency measures element. The
State did not submit adequate control
measures to meet the contingency
measures requirements of CAA section
172(c)(9) and 40 CFR 51.1014.
iii. Comments and Responses
Comment: One comment from
Citizens for Clean Air, Alaska
Community Action on Toxics, Sierra
Club Alaska Chapter supported the
EPA’s proposed disapproval. The
commenter also identified a number of
other items that the commenter
described as ‘‘potential contingency
measures.’’
Response: The EPA agrees with the
commenter that the Fairbanks Serious
Plan and Fairbanks 189(d) Plan do not
satisfy the contingency measures
requirements of the CAA section
172(c)(9) and 40 CFR 51.1014. The EPA
agrees that the State should evaluate
and adopt other measures to meet the
contingency measure requirements, but
notes that many of the specific
suggestions from the commenter also
may not meet applicable statutory and
regulatory requirements for contingency
measures.
Comment: Alaska commented in
support of the EPA’s proposed approval
of revisions to 18 AAC 50.030(c) as
meeting the trigger mechanism
requirements of 40 CFR 51.1014 and
CAA section 172(c)(9).
Response: The EPA agrees that 18
AAC 50.030(c) meets the trigger
mechanism requirements of 40 CFR
51.1014 and CAA section 172(c)(9)
because it provides for the
implementation of contingency
measures in all four types of triggering
events. Although this provision meets
this critical requirement for the
triggering and implementation of
contingency measures for areas in
general, and the EPA approved and
incorporated the provision by reference
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into the SIP on February 10, 2022 (87 FR
7722), we have determined the rule does
not suffice to meet other important
requirements with respect to the
Fairbanks PM2.5 Nonattainment Area,
such as that the measures actually
achieve meaningful emission reductions
in the event of a triggering event.
Accordingly, approval of the new
provision that correctly imposes the
correct triggering events does not fully
meet the contingency measures element
of either the Fairbanks Serious Plan or
the Fairbanks 189(d) Plan.
Comment: Alaska opposed the EPA’s
proposed disapproval of its contingency
measures. Specifically, Alaska
commented that failure of the
contingency measure in the Fairbanks
189(d) Plan to achieve approximately
one-year’s-worth of RFP is not a valid
basis for disapproval. The State argued
that neither CAA section 172(a)(9) nor
the EPA’s regulations contain an
explicit requirement that contingency
measures must achieve approximately
one-year’s-worth of RFP. Alaska further
asserted that the guidance upon which
the EPA relied on for the proposed
disapproval was not subject to public
notice and comment. Alaska also
claimed that the EPA’s guidance
concerning the amount of emission
reductions that contingency measures
should achieve is ‘‘inconsistent with the
plain language’’ of the CAA. In support
of this contention, the State cited and
quoted from the EPA’s recent Draft
Contingency Measures Guidance as
evidence that the EPA’s existing
guidance is flawed.184 Finally, Alaska
asserted that it has adopted all
technically and economically feasible
measures as BACM, and that the CAA
does not require additional measures as
contingency measures.185
Response: The EPA disagrees with the
commenter for a number of reasons. As
an initial matter, the EPA notes that
Alaska did not specifically address all
184 https://www.epa.gov/air-qualityimplementation-plans/draft-contingency-measuresguidance.
185 Alaska also appears to conflate the BACM
requirements with the contingency measure
requirements: ‘‘interpreting the OYW guidance as
an additional requirement for BACM in Fairbanks
is severely detached from the facts on the ground
and could not be justified on review.’’ Pursuant to
CAA section 172(c)(9), 40 CFR 51.1003, and 40 CFR
51.1014 contingency measures are independent
from and in addition to all other measures required
to be included in the control strategy, including
RACM/RACT, BACM/BACT, and MSM. Even when
as a state has adopted and implemented all BACM/
BACT as required, this is not a valid basis for not
adopting contingency measures that meet CAA
requirements. To the contrary, section 172(c)(9)
imposes the contingency measure requirement as a
separate obligation over and above BACM/BACT,
RFP, the modeled attainment demonstration and
other nonattainment plan requirements.
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the of the bases for the EPA’s
disapprovals for the contingency
measures Alaska submitted as part of
the Fairbanks Serious Plan and
Fairbanks 189(d) Plan, respectively. The
EPA disagrees with Alaska that the
contingency measures included in
either the Fairbanks Serious Plan or
Fairbanks 189(d) Plan meet CAA
requirements.
With respect to the two contingency
measures the State submitted as part of
the Fairbanks Serious Plan, the EPA
noted several deficiencies—any one of
which independently serve as a basis for
disapproval. Most notably, the measures
have already been triggered because the
Fairbanks area failed to attain the
NAAQS by the Serious area attainment
date, thus are already implemented
measures, and therefore are no longer
conditional and prospective. The plain
language of CAA section 172(c)(9)
dictates that contingency measures must
be both conditional and prospective,
such that emissions reductions will
occur only after a triggering event.186
Courts have already ruled that the EPA
may not approve measures that are
already implemented, or the emission
reductions that result from such already
implemented measures, as contingency
measures.187 In addition to this fatal
flaw in these two measures, the
measures would only achieve 0.01 tons
per day reductions of direct PM2.5 in the
first year of implementation.
Specifically, the State did not design the
measures to achieve meaningful
emissions reductions if triggered prior
to the State’s target 2024 attainment
date, such as a failure to meet RFP. This
undercuts the purpose of contingency
measures to ensure continued emission
reduction progress towards attainment
should any of the triggering events
listed in 40 CFR 51.1014 occur. Finally,
the EPA noted that these two
contingency measures at maximum
would achieve far less emissions
reductions than one-year’s-worth of RFP
in any year of implementation. Given
these deficiencies, Alaska’s two
contingency measures submitted as part
of the Fairbanks Serious Plan (revisions
to 18 AAC 50.077(n)) do not satisfy the
CAA’s contingency measure
requirements.
With respect to the one additional
contingency measure the State
submitted as part of the Fairbanks
189(d) Plan, the EPA also disagrees with
Alaska that this measure satisfies CAA
contingency measure requirements.
186 Id.
187 Bahr v. EPA, 836 F.3d 1218, 1235–36 (9th Cir.
2016); Sierra Club v. EPA, 21 F.4th 815, 827–826
(D.C. Cir. 2021).
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Alaska implies that because the statute
does not impose an explicit requirement
with respect to the amount of emission
reductions contingency measures must
achieve, the EPA must approve them
even if they would result in little or no
emission reductions. The EPA’s position
remains that contingency measures
must achieve sufficient emission
reductions of direct PM2.5 and plan
precursors following any of the
triggering events. Accordingly, failure to
achieve sufficient emissions reductions
in general, failure to achieve sufficient
emissions reductions of each plan
precursor, or failure to achieve
emissions reductions following one or
more triggering events are valid bases to
disapprove a contingency measure.
The statutory purpose of contingency
measures is to ensure continued
progress towards attainment following a
plan failure, such as failure to meet RFP
or failure to attain by the attainment
date.188 As the RFP requirement is the
statutory basis to measure progress
towards attainment,189 RFP
requirements are an appropriate and
reasonable barometer for measuring the
sufficiency of emissions reductions that
the State estimates a contingency
measure will achieve. The EPA has
historically used RFP for this purpose,
and even in more recent draft guidance
continues to recommend use of RFP,
albeit measured against a different
emissions inventory.190 Moreover,
contingency measures should achieve
sufficient emission reductions of both
direct PM2.5 and plan precursors, even
if it may be appropriate under some
circumstances to provide for interpollutant trading for contingency
measures purposes.
The EPA first articulated these
positions in the April 16, 1992 General
Preamble 191 and the August 16, 1994
Addendum.192 In the context of
188 59 FR 41998, August 16, 1994, at p. 42015;
Assoc. of Irritated Residents v. EPA, 10 F.4th 937,
at pp. 946–947 (9th Cir. 2021).
189 CAA section 172(c)(2); 40 CFR 51.1012.
190 U.S. EPA, Office of Air Quality Planning and
Standards, Air Quality Policy Division, DRAFT:
Guidance on the Preparation of State
Implementation Plan Provisions that Address the
Nonattainment Area Contingency Measure
Requirements for Ozone and Particulate Matter,
March 17, 2023, at pp. 20–22.
191 57 FR 13498, April 16, 1992, at pp. 13543–
13544 (‘‘The contingency measures to be
implemented if an area does not attain the
standards on schedule should be a portion of the
actual emissions reductions required by the SIP
control strategy to bring about attainment.
Therefore, the contingency emissions reductions
should be approximately equal to the emissions
reductions necessary to demonstrate RFP for one
year.’’).
192 59 FR 41998, August 16, 1994, at p. 42015 (‘‘In
designing its contingency measures, the State
should also take into consideration the potential
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implementing the PM2.5 NAAQS,
contrary to the commenter’s assertions,
the EPA undertook notice and comment
on this approach prior to finalizing the
PM2.5 SIP Requirements Rule.193 At that
time, commenters raised concerns about
the challenges of identifying
contingency measures in certain
nonattainment areas in which States
have already imposed aggressive control
measures as part of the control
strategy.194 The EPA acknowledged
these challenges, but reiterated its
interpretations of the statute that: (1)
section 172(c)(9) explicitly requires
States to include contingency measures
in Moderate area plans, Serious area
plans, and 189(d) plans; and that (2)
such contingency measures should
provide emissions reductions
approximately equivalent to one year’sworth of reductions needed for RFP in
the area.195
Significantly, the EPA also indicated
in the PM2.5 SIP Requirements Rule that
if a State is unable to identify
contingency measures that would result
in emission reductions equivalent to
approximately one year’s-worth of RFP,
the State may provide a reasoned
justification why the smaller amount of
emissions reductions is appropriate.196
Although the EPA indicated that this
would only be appropriate in ‘‘the rare
event’’ that a State is unable to identify
any additional measures, the EPA did
provide for this possibility if the State
provides an adequate demonstration
that no other measures are feasible. The
EPA reiterated this interpretation in its
comment letters on the Fairbanks
Serious Plan and Fairbanks 189(d) Plan
and recommended that Alaska either
adopt additional contingency measures
that would achieve more emission
reductions or provide an adequate
reasoned justification to establish that
no other measures were feasible.197 In
nature and extent of any attainment shortfall for the
area. The magnitude of the effectiveness of the
measures should be calculated to achieve the
appropriate percentage of the actual emission
reductions required by the SIP control strategy to
bring about attainment. The EPA has recommended
that contingency measures provide the emission
reductions equivalent to one year’s average
increment of RFP.’’).
193 Fine Particulate Matter National Ambient Air
Quality Standards: State Implementation Plan
Requirements, Proposed Rule, 80 FR 15340, March
23, 2015, at pp. 15392, 15417, 15427.
194 81 FR 58010, August 24, 2016, at p. 58068.
195 Id. at pp. 58068, 58093 and 58105.
196 81 FR 58010, August 24, 2016, at pp. 58067
and 58093.
197 ‘‘EPA Comments on 2019 DEC Proposed
Regulations and SIP—Fairbanks North Star Borough
Fine Particulate Matter’’ Letter from Krishna
Viswanathan, Director, EPA Region 10 Air and
Radiation Division to Alice Edwards, Director,
ADEC Division of Air Quality, July 19, 2019.at p.
11; ‘‘EPA Comments on 2020 Department of
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the Fairbanks Serious Plan and the
Fairbanks 189(d) Plan, the State did not
provide an analysis that would provide
such an adequate reasoned justification.
On March 17, 2023, the EPA made
available ‘‘Draft Guidance on the
Preparation of State Implementation
Plan Provisions that Address the
Nonattainment Area Contingency
Measure Requirements for Ozone and
Particulate Matter’’ (‘‘Draft Contingency
Measure Guidance’’). The Draft
Contingency Measure Guidance
addresses three issues with respect to
the contingency measure requirements
for ozone and PM2.5 nonattainment
areas. First, the Draft Contingency
Measure Guidance addresses the
method that air agencies should use to
calculate the amount of emission
reductions contingency measures
should provide. Second, the Draft
Contingency Measure Guidance
provides air agencies with specific
recommendations about how to develop
reasoned justifications for why it cannot
identify contingency measures that
result in emissions reductions
approximately equivalent to RFP. Third,
the guidance addresses the time period
within which reductions from
contingency measures should occur. On
March 23, 2023, the EPA published in
the Federal Register a notice of
availability and public comment period
on the draft guidance.198 The comment
period closed on April 24, 2023.
Alaska incorrectly asserted that the
EPA’s issuance of Draft Contingency
Measure Guidance suggests that the
Agency’s longstanding interpretation of
CAA section 172(c)(9) with respect to
the amount of emission reductions that
contingency measures should achieve is
inconsistent with the statute. First, the
EPA has not yet finalized this revised
guidance. The EPA is currently
evaluating comments on the Draft
Contingency Measure Guidance and
determining whether any changes are
warranted. Until the EPA finalizes any
revised guidance, the EPA continues to
evaluate contingency measures based on
the approach articulated above.
Importantly, nowhere in the Draft
Contingency Measure Guidance does
the EPA state that its existing approach
to contingency measures, including
determining the sufficiency of emission
Environmental Conservation (DEC) Proposed
Regulations and SIP Amendments’’ Letter from
Krishna Viswanathan, Director, EPA Region 10 Air
and Radiation Division to Alice Edwards, Director,
ADEC Division of Air Quality, October 29, 2020 at
p. 7.
198 Draft Guidance on the Preparation of State
Implementation Plan Provisions That Address the
Nonattainment Area Contingency Measure
Requirements for Ozone and Particulate Matter, 88
FR 17571, March 23, 2023.
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reductions, is inconsistent with the
CAA. To the contrary, the existing
approach is reflective of recent court
decisions acknowledging the linkage
between RFP and contingency
measures.199 Rather, the draft guidance
proffers a different approach that the
EPA believes may also satisfy CAA
requirements.
Significantly, even in the new draft
guidance the EPA continues to
recommend that States identify and
adopt contingency measures that will
achieve approximately one year’s worth
of progress, but suggests that it may be
appropriate to base that calculation on
what one year’s worth of progress would
be in the attainment year, rather than
one year based on the base year
emissions inventory. In the event a State
cannot identify sufficient measures to
achieve this amount of emission
reductions, the EPA’s draft guidance
follows the Agency’s existing guidance
with respect to the potential for States
to provide a ‘‘reasoned justification’’
that no other measures are feasible to
achieve additional emission reductions
to meet the contingency measures
requirement.
Ultimately, the EPA finds the
contingency measure Alaska submitted
as part of the Fairbanks 189(d) Plan
lacking in several critical ways. First,
the contingency measure only provides
emissions reductions for direct PM2.5
and not all plan precursors. Alaska did
not provide any explanation in the SIP
submission or the comments on the
Proposal for why additional
contingency measures specific to plan
precursors are not feasible. Second, the
contingency measure only provides
emission reductions if the triggering
event is a failure of the plan to obtain
the NAAQS by the attainment date. If
the contingency measure is triggered
earlier, such as in the event of a failure
to meet RFP, Alaska’s SIP submission
indicates that the contingency measures
will achieve substantially less emissions
reductions—particularly within the first
year of implementation.200 Finally, the
maximum emissions reductions Alaska
estimated the contingency measure
would achieve, 0.08 PM2.5 tons per day,
is substantially less than one year’s
worth of RFP, which is 0.24 PM2.5 tons
per day. As the EPA suggested in the
PM2.5 SIP Requirements Rule, Alaska
could have attempted to provide a
reasoned justification and supporting
information to establish that there are
199 Assoc. of Irritated Residents v. EPA, 10 F.4th
937, at pp. 946–947 (9th Cir. 2021); Draft
Contingency Measure Guidance at pp. 17–19.
200 State Air Quality Control Plan Vol. II, Chapter
III.D.7.10, at p. 13, adopted November 18, 2020.
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no other feasible measures to achieve
additional emission reductions as
contingency measures in the Fairbanks
area but Alaska did not do so. The EPA
maintains that each of these deficiencies
form an independent basis to
disapprove Alaska’s plan as meeting the
contingency measure requirements.
Regarding the scarcity of potential
contingency measures as a rationale for
the low emission reductions, Alaska did
not include in its submissions or
comments on the Proposal a thorough
evaluation of all potential contingency
measures, including those measures the
State deemed infeasible for BACM/
BACT purposes. Another potential
source of contingency measures are
those measures qualifying as MSM. The
EPA previously denied Alaska’s request
to extend the Serious area attainment
date pursuant to CAA section 188(e)
because the State failed to adopt MSMs
for all sources and source categories.201
Consideration of control measures that
are more stringent than BACM/BACT
and MSM is a logical starting point for
identification of additional contingency
measures. In addition, robust
contingency measures are particularly
important for the Fairbanks
Nonattainment Area given the
pervasiveness of the air quality problem.
As part of a subsequent SIP
submission to cure the deficiencies with
respect to the contingency measures
requirements, the EPA encourages
Alaska to evaluate all control measures
Alaska previously rejected as either
technologically or economically
infeasible as BACM or BACT or as
additional measures necessary for
Serious areas that fail to attain and
adopt those measures that can satisfy, in
whole or in part, the contingency
measure requirements. By definition,
contingency measures are controls
measures that are required over and
above what a State is required to adopt
to meet other nonattainment plan
requirements such as BACM/BACT,
RFP, and the modeled attainment
demonstration showing expeditious
attainment of the NAAQS. Alaska may
also identify and adopt new measures it
has not previously identified and
evaluated as part of prior SIP
201 Determination of Failure To Attain by the
Attainment Date and Denial of Serious Area
Attainment Date Extension Request; AK: Fairbanks
North Star Borough 2006 24-Hour Fine Particulate
Matter Serious Nonattainment Area—Final Rule, 85
FR 54509, September 2, 2020; Determination of
Failure To Attain by the Attainment Date and
Denial of Serious Area Attainment Date Extension
Request; AK: Fairbanks North Star Borough 2006
24-Hour Fine Particulate Matter Serious
Nonattainment Area—Proposed Rule, 85 FR 29879,
May 19, 2020, at p. 29881.
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submissions to satisfy the contingency
measure requirements.
Further, as noted in section II.E.(3).(ii)
of this preamble and in the EPA’s
Response to Comments document,202
the EPA notes the tremendous emission
reduction potential of adopting a ULSD
control measure for residential and
commercial fuel oil combustion (Alaska
estimated emission reductions of 669
tons of SO2 per year through ULSD
adoption), in an area whose share of
PM2.5 is increasingly sulfate derived
from SO2 sources. Therefore, the EPA
encourages Alaska to exercise its
authority under CAA section 116 to
adopt this measure as part of its control
strategy or evaluate this requirement as
a contingency measure.
without a protective finding for the
motor vehicle emissions budgets,
consistent with 40 CFR 93.120.
Specifically, we note that in
disapproving a control strategy
implementation plan revision, the EPA
would give a protective finding where a
submitted plan contains adopted control
measures or written commitments to
adopt enforceable control measures that
fully satisfy the emissions reductions
requirements relevant to the statutory
provision for which the implementation
plan revision was submitted, such as
reasonable further progress or
attainment.204 Based on the discussion
in section II.E of this preamble, the
Fairbanks Serious Plan and Fairbanks
189(d) Plan do not meet this criteria.
8. Motor Vehicle Emission Budgets for
Transportation Conformity
iii. Comments and Responses
Comment: The EPA received two
comments regarding its proposed
disapproval of the motor vehicle
emission budgets. One comment from
Alaska stated, ‘‘Alaska addressed each
individual control measure and
provided either additional information
to support dismissal or described the
actions that Alaska plans to take to
resolve the deficiency that the EPA
identified.’’ Another comment from
FAST Planning opposed the proposed
disapproval. According to the
commenter, FAST Planning interpreted
this finding to mean the budgets were
disapproved because the EPA proposed
to disapprove Alaska’s rejection of
certain mobile source and transportation
control measures all of which have been
assessed by Alaska to have limited or no
reductions to PM2.5 levels. FAST
Planning stated that factoring into the
budget calculations measures that have
limited or no reduction to PM2.5 should
have little to no effect on the budgets,
so this does not seem like a logical
reason to disapprove the budget. The
comment also includes a graph
comparing the Fairbanks Moderate Plan
motor vehicle emission budgets to the
Fairbanks Serious Plan motor vehicle
budgets. According to the comment, the
proposed budgets in the Serious Plan
are lower than the budgets in the
Moderate Plan and the latest test results
show actual emissions below the
proposed budgets. Furthermore,
according to the comment,
incorporating the rejected transportation
control measures into the analysis will
have little to no effect on the budgets.
Response: The PM2.5 SIP
Requirements Rule requires that any
attainment plan submitted to the EPA
under this section shall establish motor
vehicle emissions budgets for the
i. Summary of Proposal
The EPA proposed to disapprove the
motor vehicle emission budgets
submitted as part of the Fairbanks
189(d) Plan. The EPA explained in the
Proposal that the Agency evaluated the
motor vehicle emissions budgets against
the adequacy criteria in 40 CFR
93.118(e)(4) as part of the EPA’s review
of the approvability of the budgets
according to the process in 40 CFR
93.118(f)(2). The EPA noted in the
Proposal that the budgets were clearly
identified and precisely quantified
using MOVES2014b, with appropriate
consultation among Federal, State, and
local agencies. However, the EPA stated
in the Proposal that the budgets must be
considered with other emissions
sources, consistent with applicable RFP
and attainment requirements, and be
consistent with and clearly related to
the emissions inventory and the control
measures in the SIP.203 Since the
budgets must account for other control
measures to determine the appropriate
motor vehicle budgets, and the control
strategy does not include all required
control measures, then the budgets will
necessarily be deficient. Therefore, the
EPA proposed to disapprove the budgets
for the Fairbanks PM2.5 Nonattainment
Area.
ii. Final Rule
The EPA is finalizing disapproval of
the motor vehicle budgets for
transportation conformity as proposed.
The EPA is finalizing its disapproval
202 Response to Comments Regarding Best
Available Control Measure Requirements for
Residential and Commercial Fuel Oil Combustion
on the Air Plan Partial Approval and Partial
Disapproval; AK, Fairbanks North Star Borough;
2006 24-hour PM2.5 Serious Area and 189(d) Plan
EPA–R10–OAR–2022–0115.
203 See 40 CFR 93.118(e)(4)(iv through v).
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projected attainment year for the area, if
applicable. The State shall develop such
budgets according to the requirements
of the transportation conformity rule as
they apply to PM2.5 nonattainment areas
(40 CFR part 93, subpart A).205 In
addition, the transportation conformity
regulation at 40 CFR 93.118(e)(4)
establishes the minimum criteria that a
motor vehicle emission budget must
meet in order for the EPA to find the
budget adequate. These minimum
criteria include: the motor vehicle
emissions budget(s), when considered
together with all other emissions
sources, is consistent with applicable
requirements for reasonable further
progress, attainment, or maintenance
(whichever is relevant to the given
implementation plan submission); and
the motor vehicle emissions budget(s) is
consistent with and clearly related to
the emissions inventory and the control
measures in the submitted control
strategy implementation plan revision
or maintenance plan. Consistent with
the EPA’s Transportation Conformity
Regulations, the EPA explained in the
preamble to the PM2.5 SIP Requirements
Rule that a motor vehicle emissions
budget for the purposes of a Serious area
PM2.5 attainment plan is that portion of
the total allowable emissions within the
nonattainment area allocated to on-road
sources as defined in the submitted
attainment plan. Such motor vehicle
emissions budgets would be calculated
using the latest planning assumptions
and the latest approved motor vehicle
emissions model available at the time
that the attainment plan is
developed.206
The EPA’s disapproval of the motor
vehicle emission budgets submitted as
part of the Fairbanks 189(d) Plan is not
predicated on the EPA’s action on
Alaska’s BACM determinations for
mobile sources generally or rejection of
certain transportation control measures
as BACM, specifically. While the EPA
agrees with FAST Planning that the
motor vehicle budgets are reduced from
the Fairbanks Moderate Plan to the
Fairbanks 189(d), the EPA is still unable
to determine whether the budgets are
adequate because the EPA is finalizing
the disapproval of the attainment
demonstration and RFP provisions in
the Fairbanks 189(d) Plan. Alaska will
need to submit budgets as part of its
next SIP revision for the area that are
consistent with the revised attainment
demonstration and RFP provisions.
Additionally, Alaska has not adopted all
available BACM and BACT. As a result,
the EPA is disapproving the Fairbanks
205 40
206 81
CFR 51.1003(d).
FR 58010, August 24, 2016, at p. 58090.
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Serious Plan and Fairbanks 189(d) Plan
attainment demonstration and
reasonable further progress provisions.
Therefore, the EPA is limited in
determining the adequacy and
approvability of the motor vehicle
budgets when the EPA cannot yet
determine whether all other available
control measures are implemented that
would lead to expeditious attainment.
Comment: One commenter stated that
the EPA should issue a transportation
conformity protective finding for the
regional transportation plan.
Response: The transportation
conformity regulation at 40 CFR 93.101
defines a protective finding as ‘‘a
determination by EPA that a submitted
control strategy implementation plan
revision contains adopted control
measures or written commitments to
adopt enforceable control measures that
fully satisfy the emissions reductions
requirements relevant to the statutory
provision for which the implementation
plan revision was submitted, such as
reasonable further progress or
attainment.’’
Similarly, the regulation at 40 CFR
93.120(a)(3) states: ‘‘In disapproving a
control strategy implementation plan
revision, EPA would give a protective
finding where a submitted plan contains
adopted control measures or written
commitments to adopt enforceable
control measures that fully satisfy the
emissions reductions requirements
relevant to the statutory provision for
which the implementation plan revision
was submitted, such as reasonable
further progress or attainment.’’
As noted in section II.E of this
preamble, the EPA is finalizing
disapproval of portions of the control
strategy in the Fairbanks Serious Plan
and Fairbanks 189(d) plan as not fully
meeting CAA requirements. Therefore,
the submitted plans do not contain
adopted control measures or written
commitments to adopt enforceable
control measures that fully satisfy the
emissions reductions requirements in
CAA sections 189(b) and 189(d).
Therefore, the EPA cannot issue a
protective finding under 40 CFR
93.120(a)(3).
Comment: Several commenters
expressed concern with the proposed
Manh Choh mine, particularly the
increase in heavy-duty vehicle traffic
while hauling ore through the
nonattainment area.
Response: First, the CAA does not
mandate a State include control
measures in a Serious area plan or
189(d) plan for a proposed mining
operation located outside of the
Fairbanks nonattainment area or
associated ore hauling. Thus, the
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potential emissions from the Manh
Choh mine are outside the scope of this
action and not a valid basis to
disapprove the Fairbanks Serious Plan
or Fairbanks 189(d) Plan.
Second, with respect to the impact of
the traffic associated with the mine and
its impact on transportation conformity,
the EPA has been working with FAST
Planning and ADEC to assess these
potential impacts and ensure that any
increased emissions do not impede
expeditious attainment of the PM2.5 24hour NAAQS. As part of the 2045
Metropolitan Transportation Plan
Update, a report provided to FAST
Planning concluded that the area
continued to meet transportation
conformity budgets even with the
increased traffic and resulting emissions
from the heavy-duty diesel truck
activity.207 We note that as part of the
environmental impact assessment of the
mining project, the EPA sent a letter to
the U.S. Army Corps of Engineers
suggesting a number of measures to
reduce air quality impacts.208
Additionally, a technical advisory
committee formed by the Alaska
Department of Transportation and
Public Facilities will analyze the
impacts and potential implications of
the proposed ore haul operations to
roadway infrastructure and safety.209
9. Nonattainment New Source Review
Requirements
i. Summary of Proposal
A State with a designated
nonattainment area is required to have
a NNSR permitting program for the
construction and operation of new and
modified major stationary sources, in
accordance with CAA sections
110(a)(2)(C) and 172(c)(5). For purposes
of the 2006 24-hour PM2.5 NAAQS, the
State must also meet the additional
requirements of CAA sections 189(b)(3)
concerning the definition of a major
stationary source, and 189(e) concerning
regulated emissions.
CAA section 189(b)(3) requires that in
Serious particulate matter
nonattainment areas, the NNSR major
source threshold is 70 tons per year. The
EPA previously approved a revision to
207 Vallamsundar and Carlson, Conformity
Analysis for the FAST Planning 2045 Metropolitan
Transportation Plan Update, Trinity Consultants,
section 5.2, March 13, 2023, available in the docket
for this action.
208 Letter from Amy Jensen, EPA Region 10,
Regional Wetland Coordinator to Gregory Mazer,
U.S. Army Corps of Engineers, Alaska District,
August 19, 2022, included in the docket for this
action.
209 Alaska Richardson Steese Highway Corridor
Action Plan, available at: https://
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the Alaska SIP to meet this requirement
(84 FR 45419, August 29, 2019). CAA
section 189(e) specifically requires that
the control requirements applicable to
major stationary sources of direct PM2.5
also apply to major stationary sources of
PM2.5 precursors, except where the
Administrator determines that such
sources of a precursor or precursors do
not contribute significantly to PM2.5
levels that exceed the NAAQS in the
area.210 The default under CAA section
189(e) is that the State must control
emissions of direct PM2.5 emissions and
the emissions of all four PM2.5
precursors, i.e., NOx, VOCs, SO2, and
NH3, unless the State has submitted an
optional precursor demonstration, and
the EPA has approved such
demonstration.
As noted in the Proposal and in
section II.E.9.i of this preamble, the EPA
previously approved a revision to the
Alaska SIP to meet this requirement (84
FR 45419, August 29, 2019), thus
satisfying the NNSR program element
for purposes of the Fairbanks Serious
Plan. In that action, the EPA stated that
Alaska did not make an optional
precursor demonstration for NOX, SO2,
VOC or NH3 for purposes of NNSR
requirements. Instead, Alaska adopted
by reference the 40 tons per year
significant emissions rates for NOX, SO2,
and VOC set by the EPA, and also
established a significant emissions rate
of 40 tons per year for NH3 as a
precursor for PM2.5, consistent with the
thresholds established for the other
PM2.5 precursors. In the Fairbanks
189(d) Plan submission, ADEC certified
that the State’s NNSR program meets the
CAA section 172(c)(5), 189(d), and
189(e) nonattainment area planning
requirements. The EPA proposed to
approve the existing SIP-approved
NNSR program as applicable in the
Fairbanks PM2.5 Nonattainment Area for
purposes of meeting requirements
Serious areas that fail to attain under 40
CFR 51.1003(c)(1)(viii).
ii. Final Rule
The EPA did not receive any
comments on this plan element and is
finalizing approval of the Fairbanks
Serious Plan and Fairbanks 189(d) Plan
as meeting the NNSR program
requirements of CAA sections 172(c)(5),
189(b)(3), 189(d), and 189(e), and 40
CFR 51.1003(b)(1)(viii) and (c)(1)(viii).
10. Additional Comments
Comment: One commenter questioned
whether the EPA had complied with the
Regulatory Flexibility Act prior to
210 57 FR 13498, April 16, 1992, at pp. 13539 and
13541–13542.
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proposing action on the Fairbanks
Serious Plan and Fairbanks 189(d) Plan.
The commenter stated that the RFA
required Federal agencies to go through
a due process and if the standards that
the Federal government have
established cannot be attained it allows
agencies to adjust them. The commenter
further asserted that the EPA was
required to address the RFA.
Response: The EPA disagrees with the
commenter that the EPA was required to
prepare a regulatory flexibility analysis
pursuant to the RFA prior to proposing
or finalizing this action on Alaska’s SIP
submissions. The RFA, 5 U.S.C. 601–
612, generally requires agencies to
prepare a regulatory flexibility analysis
for any rule subject to notice and
comment rulemaking requirements
under the Administrative Procedure Act
(APA) or any other statute unless an
agency certifies that the rule will not
have a significant economic impact on
a substantial number of small entities
(SISNOSE). In the notice of proposed
rulemaking, the EPA certified that this
action will not have a SISNOSE. In
particular, the EPA stated that the
proposed SIP action, if finalized, will
not in-and-of itself create any new
requirements but will simply
disapprove certain State requirements
for inclusion in the SIP. The EPA’s
position with respect to its obligations
under the RFA remains unchanged.
Comment: One commenter opposed
the EPA’s proposed determination that
the EPA’s action on the Fairbanks
Serious Plan and Fairbanks 189(d) Plan
would not have Tribal implications
under Executive Order 13175. The
commenter argued that the EPA’s action
would significantly impact Doyon,
Limited and its shareholders. Doyon,
Limited is the regional Alaska Native
corporation for Interior Alaska formed
under the Alaska Native Claims
Settlement Act (ANCSA). According to
the commenter, Doyon, Limited has
20,400 shareholders, 5,000 of which
reside in the Fairbanks area. The
commenter also opposed the EPA’s
proposed disapproval of the BACT
determinations for the Fort Wainwright
CHPP owned and operated by Doyon
Utilities, LLC.
Response: Consistent with Executive
Order 13175, the EPA consulted with
Doyon, Limited on April 17, 2023. The
EPA notes that under Executive Order
13175, the EPA consults with Indian
Tribes and ANCSA Corporations on a
regulatory action that has substantial
direct effect on the Indian Tribe or
ANCSA corporation and imposes
substantial direct compliance costs. The
EPA’s action here approves in part and
disapproves in part the Fairbanks
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Serious Plan and Fairbanks 189(d) Plan.
Accordingly, the EPA’s action has no
direct effect on Doyon, Limited nor any
other Indian Tribe. Nor does the EPA’s
action impose direct compliance costs.
The EPA is not adopting or
implementing as part of this action any
affirmative regulations applicable to
entitles or people in the Fairbanks PM2.5
Nonattainment Area. As a result of this
action, certain provisions of the
Fairbanks Serious Plan and Fairbanks
189(d) Plan are approved into Alaska’s
SIP. The EPA is disapproving other
provisions. In response to the EPA’s
disapprovals, Alaska may adopt new
regulations that may impact Doyon,
Limited or its shareholders. The EPA
addressed Doyon Utilities, LLC’s
comments regarding BACT in a
Response to Comment document,
included in the docket for this action.211
Comment: One commenter opposed
the proposed disapproval on the basis
that triggering the mandatory highway
sanction is not relevant or appropriate
for the Fairbanks PM2.5 Nonattainment
Area. The Clean Air Act of 1970 was
passed to protect public health and
welfare at a time when pollution from
vehicles was a serious problem in urban
areas and included a correlated sanction
for withholding Federal highway
funding, yet in present time the EPA
touts major successes in vehicle
pollution control in the U.S. by stating
vehicles today are 99 percent cleaner for
most tailpipe pollutants than in 1960s
and 1970s; thus, the commenter asserts,
making the 53-year old sanction no
longer relevant. The commenter stated
that on-road mobile emissions in the
Fairbanks PM2.5 Nonattainment Area
only comprise 6.8 percent of the area
emissions contribution, yet the EPA is
threatening to use the 53-year-old
sanction to withhold Federal highway
funding, which is not correlated nor
will contribute to solving the problem.
Response: If the EPA finalizes full or
partial disapproval of a required SIP
submission, such as an attainment plan
submission, or a portion thereof, CAA
section 179(a) establishes the imposition
of mandatory sanctions. If the EPA has
not affirmatively determined that the
State has corrected the identified
deficiencies within 18 months after the
effective date of this action, then,
pursuant to CAA section 179(a) and (b)
and 40 CFR 52.31, the offset sanction
identified in CAA section 179(b)(2) will
apply in the affected nonattainment
211 Response to Comments Regarding Best
Available Control Technology Requirements on the
Air Plan Partial Approval and Partial Disapproval;
AK, Fairbanks North Star Borough; 2006 24-hour
PM2.5 Serious Area and 189(d) Plan, EPA–R10–
OAR–2022–0115.
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area. If the EPA has not affirmatively
determined that the identified
deficiencies have been corrected within
6 months after the offset sanction is
imposed, then the highway funding
sanction will apply in the affected
nonattainment area, in accordance with
CAA section 179(b)(1) and 40 CFR
52.31. The sanctions will not take effect
if, within 18 months after the effective
date of this finding, the EPA
affirmatively determines that the State
has made a complete SIP submittal
correcting the deficiencies for which the
finding was made.212
In this final action, the EPA is
disapproving in part the Fairbanks
Serious Plan and Fairbanks 189(d) Plan
for not meeting the CAA requirements
for PM2.5 nonattainment areas,
specifically attainment projected
emissions inventory, attainment
demonstration, control strategy (in part),
RFP, QM, and contingency measures.213
Congress was clear in CAA section
179 that if the EPA made any of the
findings, disapprovals, or
determinations referred to in CAA
section 179(a), sanctions must be
imposed. Furthermore, CAA section
179(a)(2) makes clear that disapproval of
a SIP submissions for failure to meet
one or more of the elements required by
the CAA triggers mandatory sanctions.
Thus, the CAA imposes highway
sanctions regardless of whether mobile
sources contribute to a particular
nonattainment problem and regardless
of whether the State fails to control
mobile sources in a SIP submission.214
By extension, the EPA does not have
discretion to choose not to impose
mandatory sanctions.
III. Final Action
A. Final Approval
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1. In this action, the EPA is finalizing
approval of the submitted revisions to
the Alaska SIP as meeting the following
212 The EPA may also defer or stay, as applicable,
the application of sanctions upon issuance of an
interim final determination that the revised plan
corrects the deficiencies prompting the disapproval.
See 40 CFR 52.31(d)(2).
213 40 CFR 52.31(a); (d).
214 See, e.g., Statements of Henry A. Waxman,
Clean Air Act Amendments of 1990, 136 Cong. Rec.
E3699–01, 1990 WL 206989, October 27, 1990, at
ES700 (‘‘Cutting off Federal highway funds is an
effective, sanction that can-and should in the
appropriate situation-be used to ensure compliance
with clean air requirements that are unrelated to
transportation issues.’’). See also, CAA section
502(d)(2), 42 U.S.C. 7661a(d)(2) (authorizing the
Administrator to apply any of the sanctions in CAA
section 179(b) if a state does not submit a Title V
operating permit program or the EPA disapproves
a state Title V operating permit program). But see,
S. Rep. 101–228, 1990 USCCAN 3385, December 20,
1989, at 3413.
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Serious Plan and CAA section 189(d) 215
required elements for the 2006 24-hour
PM2.5 NAAQS Fairbanks Nonattainment
Area:
i. The 2019 base year emissions
inventory (CAA section 172(c)(3) ;216 40
CFR 51.1008(c)(1)) for areas subject to
CAA section 189(d).
ii. The State’s PM2.5 precursor
demonstrations for NOX and VOC
emissions (CAA section 189(e) ;217 40
CFR 51.1006(a)).
iii. Partial approval of the control
strategy as meeting BACM and BACT
requirements under CAA section
189(b)(1)(B) 218 and 40 CFR 51.1010(a)
for the solid fuel home heating device
source category and residential and
commercial fuel oil combustion source
category. Additionally, the EPA is
finalizing approval as meeting BACM
and BACT requirements under CAA
section 189(b)(1)(B) 219 and 40 CFR
51.1010(a) for the charbroiler, used oil
burner, and mobile source categories
(except for rejection of vehicle antiidling requirements), and specific
regulations under 18 AAC 50.075
through 077 (except the requirements
for dry wood sellers under 18 AAC
50.076(k)), and Fairbanks Emergency
Episode Plan (except the contingency
measure portion).
iv. Approval of Nonattainment New
Source Review Requirements under
CAA sections 172(c)(5), 189(b)(3),
189(d), and 189(e) 220 and 40 CFR
51.165, 40 CFR 51.1003(b)(1)(viii), and
40 CFR 51.1003(c)(1)(viii).
2. The EPA is finalizing partial
approval of the Fairbanks Serious Plan
and Fairbanks 189(d) plan SIP
submissions as meeting applicable
control strategy BACM and BACT
requirements (CAA section
189(b)(1)(B) 221 and 40 CFR 51.1010(a))
for the following emission sources: 222
i. Chena Power Plant
a. Coal-fired boilers (NH3)
ii. Fort Wainwright
a. Coal-fired boilers (NH3)
b. Diesel-fired boilers (NH3)
c. Large diesel-fired engines (NH3)
215 42
U.S.C. 7513a(d).
U.S.C. 7502(c)(3).
217 42 U.S.C. 7513a(e).
218 42 U.S.C. 7513a(b)(1)(B).
219 Id.
220 42 U.S.C. 7502(c)(5), 7513a(b)(3), 7513a(d) and
7513a(e).
221 Id.
222 Note that the EPA inadvertently indicated that
it proposed to disapprove the Fairbanks Serious
Plan and Fairbanks 189(d) Plan as not meeting
BACT requirements for NH3 in Section V of the
Proposal. This was in error. The EPA made clear
in the preamble to the Proposal that it was
proposing to approve Alaska’s determinations that
no NH3 controls existed for each of the stationary
sources listed.
216 42
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84669
d. Small emergency engines (NH3)
e. Materials handling (NH3)
iii. University of Alaska Fairbanks
a. Dual fuel-fired boiler (NH3)
b. Mid-sized diesel-fired boilers (NH3)
c. Small-sized diesel-fired boilers
(NH3)
d. Large diesel-fired engine (NH3)
e. Small diesel-fired engines (NH3)
f. Pathogenic waste incinerator (NH3)
g. Material handling (NH3)
iv. Zehnder
a. Oil-fired simple cycle gas turbines
(NH3)
b. Diesel-fired emergency generators
(NH3)
c. Diesel-fired boilers (NH3)
iv. North Pole Power Plant
a. Oil-fired simple cycle gas turbines
(NH3)
b. Oil-fired combined cycle gas
turbines (NH3)
c. Large diesel-fired engine (NH3)
d. Propane-fired boiler (NH3)
3. The EPA is finalizing approval of
the submitted chapters of the Alaska Air
Quality Control Plan for the Fairbanks
PM2.5 Nonattainment Area, State
effective January 8, 2020:
i. Volume II, Chapter III.D.7.01
Executive Summary
ii. Volume II, Chapter III.D.7.02 and
Volume III Chapter III.D.7.02
Background and Overview of PM2.5
Rule
iii. Volume II, Chapter III.D.7.03 and
Volume III Chapter III.D.7.03
Nonattainment Area Boundary and
Design Episode Selection
vii. Volume II, Chapter III.D.7.13 and
Volume III Chapter III.D.7.13
Assurance of Adequacy
viii. Volume II, Chapter III.D.7.15
Acronyms and Abbreviations
4. The EPA is finalizing approval of
the submitted chapters of the Alaska Air
Quality Control Plan for the Fairbanks
PM2.5 Nonattainment Area, State
effective December 25, 2020:
i. Volume II, Chapter III.D.7.04 Ambient
Air Quality and Trends
ii. Volume II, Chapter III.D.7.05 and
Volume III Chapter III.D.7.05 PM2.5
Network and Monitoring Program
iii. Volume II, Chapter III.D.7.06 and
Volume III Chapter III.D.7.06
Emissions Inventory for purposes of
the 2019 base year emissions
inventory.
iv. Volume II, Chapter III.D.7.07 and
Volume III Chapter III.D.7.07
Control Strategies for purposes of
the following emission source
categories: solid fuel home heating
device, residential and commercial
fuel oil combustion, charbroiler,
used oil burner, incinerator, NH3
BACT determination for the Aurora
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Energy Chena Power Plant, PM2.5
and NH3 BACT determination for
the Doyon-Fort Wainwright Central
Heating and Power Plant; PM2.5 and
NH3 BACT determination for the
University of Alaska Fairbanks
Campus Power Plant except for the
three small diesel fired engines
(EUs 23, 26, and 27); PM2.5 and NH3
BACT determinations for Golden
Valley Electric Association Zehnder
Power Plant; PM2.5 and NH3 BACT
Determinations for the Golden
Valley Electric Association North
Pole Power Plant; and
Nonattainment New Source Review
Requirements.
v. Volume II, Chapter III.D.7.08
Modeling, precursor demonstration
for the purposes of NOX and VOC
emissions as it relates to BACM and
BACT requirements and control
strategy requirements for
nonattainment areas subject to CAA
section 189(d).
5. The EPA is finalizing a partial
approval of Volume II, Chapter
III.D.7.12 Emergency Episode Plan,
except for the contingency measure
portion, as meeting the BACM and
BACT requirements for the solid fuel
heating device source category.223
6. The EPA is finalizing approval and
incorporating by reference submitted
regulatory changes into the Alaska SIP.
Upon this final approval, the Alaska SIP
will include:
i. 18 AAC 50.075, except (d)(2), State
effective January 8, 2020, (solid
fuel-fired heating devices may not
exceed 20 percent opacity for more
than six minutes in any one hour
when an air quality advisory is in
effect).
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B. Final Disapproval
1. The EPA is finalizing disapproval
of the submitted revisions to the Alaska
SIP as not meeting the following Serious
plan and CAA section 189(d) 224
required elements for the 2006 24-hour
PM2.5 Fairbanks Nonattainment Area:
i. Attainment projected emissions
inventory requirements of CAA
section 172(c)(1) 225 and 40 CFR
51.1008(c)(2);
ii. Additional measures (beyond those
already adopted in previous
nonattainment plan SIP
submissions for the area as RACM/
223 The EPA finalized a limited approval of the
Volume II, Chapter III.D.7.12 Emergency Episode
Plan as SIP-strengthening on September 24, 2021.
86 FR 52997, September 24, 2021, at pp. 52997,
53004.
224 42 U.S.C. 7513a(d).
225 42 U.S.C. 7502(c)(1).
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RACT, BACM/BACT, and MSM 226
(if applicable)) under CAA section
189(d) and 40 CFR 51.1010(c).
iii. Attainment demonstration and
modeling requirements of CAA
sections 188(c)(2) and 189(b)(1)(A)
and 40 CFR 51.1003(c) and 51.1011.
iv. Reasonable further progress (RFP)
requirements of CAA section
172(c)(2) 227 and 40 CFR 51.1012.
v. Quantitative milestones requirements
of CAA section 189(c) 228 and 40
CFR 51.1013.
vi. Contingency measures requirements
of CAA section 172(c)(9) 229 and 40
CFR 51.1014 applicable to Serious
areas subject to CAA sections 189(b)
and 189(d).
vii. Motor vehicle emission budgets
requirements under 40 CFR
51.1003(d) and 93.118, without a
protective finding under 40 CFR
93.120.
2. The EPA is finalizing disapproval
of the submitted chapters of the Alaska
Air Quality Control Plan for the
Fairbanks PM2.5 Nonattainment Area,
State effective December 25, 2020:
i. Volume II, Chapter III.D.7.06 and
Volume III Chapter III.D.7.06
Emissions Inventory for purposes of
the 2024 attainment year emissions
inventory.
ii. Volume II, Chapter III.D.7.07 and
Volume III Chapter III.D.7.07
Control Strategies for purposes of
the wood seller requirements, coalfired heating devices, coffee
roasters, weatherization and energy
efficiency, light-duty vehicle antiidling, PM2.5 BACT determinations
for the Aurora Chena Power Plant,
PM2.5 BACT determinations for the
University of Alaska Fairbanks
Campus Power Plant emission units
23, 26, and 27,
iii. Volume II, Chapter III.D.7.08
Modeling
iv. Volume II, Chapter II.D.7.09
Attainment Demonstration
v. Volume II, Chapter II.D.7.10
Reasonable Further Progress and
Quantitative Milestones.
vi. Volume II, Chapter II.D.7.11
Contingency Measures.
vii. Volume II, Chapter II.D.7.14
Conformity and Motor Vehicle
Emissions Budgets.
3. The EPA is finalizing limited
disapproval of the submitted chapters of
226 MSM is applicable if the EPA has previously
granted an extension of the attainment date under
CAA section 188(e) for the nonattainment area and
NAAQS at issue. The EPA denied Alaska’s request
to extend the Serious area attainment date for the
Fairbanks Serious Nonattainment Area.
227 42 U.S.C. 7502(c)(2).
228 42 U.S.C. 7513a(c).
229 42 U.S.C. 7502(c)(9).
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the Alaska Air Quality Control Plan for
the Fairbanks PM2.5 Nonattainment
Area, State effective December 25, 2020:
i. Volume II, Chapter II.D.7.12
Emergency Episode Plan. The EPA
is finalizing a limited disapproval
because the contingency measure
components do not fully meet the
contingency measure requirements
of CAA section 172(c)(9) and 40
CFR 51.1014.230
4. The EPA is finalizing partial
disapproval of the Fairbanks Serious
Plan and Fairbanks 189(d) plan SIP
submissions as not meeting applicable
control strategy BACM and BACT
requirements (CAA section
189(b)(1)(B) 231 and 40 CFR 51.1010(a))
for the following emission source
categories:
i. Requirements for wood sellers
ii. Coal-fired heating devices
iii. Coffee roasters
iv. Weatherization and energy efficiency
measures
v. Mobile source category (disapproving
for lack of vehicle anti-idling
requirements).
5. The EPA is finalizing partial
disapproval of the Fairbanks Serious
Plan and Fairbanks 189(d) plan SIP
submissions as not meeting applicable
control strategy BACM and BACT
requirements (CAA section
189(b)(1)(B) 232 and 40 CFR 51.1010(a))
for the following emission sources:
i. Chena Power Plant
a. Coal-fired boilers (PM2.5; SO2)
ii. Fort Wainwright
a. Coal-fired boilers (PM2.5; SO2)
b. Diesel-fired boilers (PM2.5; SO2)
c. Large diesel-fired engines (PM2.5;
SO2)
d. Small emergency engines (PM2.5;
SO2)
e. Materials handling (PM2.5)
iii. University of Alaska Fairbanks
a. Dual fuel-fired boiler (PM2.5; SO2)
b. Mid-sized diesel-fired boilers
(PM2.5; SO2)
c. Small-sized diesel-fired boilers
(PM2.5; SO2)
d. Large diesel-fired engine (PM2.5;
SO2)
e. Small diesel-fired engines (PM2.5;
SO2)
230 The EPA finalized a limited approval of the
Volume II, Chapter III.D.7.12 Emergency Episode
Plan as SIP-strengthening on September 24, 2021.
86 FR 52997, September 24, 2021, at pp. 52997,
53004. The EPA’s final limited disapproval does not
prevent the State from enforcing the Emergency
Episode Plan, including the contingency measure
provisions. Nor does the EPA’s limited disapproval
remove the Emergency Episode Plan, or any portion
thereof, from the approved SIP.
231 42 U.S.C. 7513a(b)(1)(B).
232 Id.
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f. Pathogenic waste incinerator (PM2.5;
SO2)
g. Material handling (PM2.5)
iv. Zehnder
a. Oil-fired simple cycle gas turbines
(PM2.5; SO2)
b. Diesel-fired emergency generators
(PM2.5; SO2)
c. Diesel-fired boilers (PM2.5; SO2)
v. North Pole Power Plant
a. Oil-fired simple cycle gas turbines
(PM2.5; SO2)
b. Oil-fired combined cycle gas
turbines (PM2.5; SO2)
c. Large diesel-fired engine (PM2.5;
SO2)
d. Propane-fired boiler (PM2.5; SO2)
IV. Consequences of a Disapproval
This section explains the
consequences of a disapproval of a
required SIP. The Act provides for the
imposition of mandatory sanctions and
the promulgation of a Federal
implementation plan (FIP) if a State fails
to obtain EPA approval of a plan
revision that corrects the deficiencies
identified by the EPA in its disapproval.
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A. The Act’s Provisions for Mandatory
Sanctions
If the EPA finalizes disapproval of a
required SIP submission, such as an
attainment plan submission, or a
portion thereof, CAA section 179(a)
establishes the imposition of mandatory
sanctions. If the EPA has not
affirmatively determined that the State
has corrected the identified deficiencies
within 18 months after the effective date
of this action, then, pursuant to CAA
section 179(a) and (b) and 40 CFR 52.31,
the offset sanction identified in CAA
section 179(b)(2) will apply in the
affected nonattainment area. If the EPA
has not affirmatively determined that
the identified deficiencies have been
corrected within 6 months after the
offset sanction is imposed, then the
highway funding sanction will apply in
the affected nonattainment area, in
accordance with CAA section 179(b)(1)
and 40 CFR 52.31.233 The sanctions will
not take effect if, within 18 months after
the effective date of this finding, the
EPA affirmatively determines that the
State has made a complete SIP submittal
correcting the deficiencies for which the
finding was made.
B. Federal Implementation Plan
Provisions That Apply if a State Fails To
Submit an Approvable Plan
Additionally, if the EPA affirmatively
determines that the State has made a
complete SIP submittal correcting the
deficiencies for which this finding was
made and takes action to approve the
submittal within 2 years of the effective
date of this finding, EPA is not required
to promulgate a FIP for the affected
nonattainment area.234
C. Ramifications Regarding
Transportation Conformity
One consequence of the EPA action
finalizing disapproval of a control
strategy SIP submission is a conformity
freeze.235 Final disapproval of the
attainment demonstration SIP and the
RFP plan without a protective finding
results in a conformity freeze beginning
on the effective date of the
disapproval.236 The EPA is
disapproving in part the Fairbanks
Serious Plan and Fairbanks 189(d) Plan,
which are attainment plans, because
they do not include sufficient emissions
reductions to meet attainment and RFP
requirements, as discussed above.
Therefore, the area is not eligible for a
protective finding and a freeze will
begin on the effective date of the
disapproval.237 The area’s Metropolitan
Planning Organization (MPO), FAST
Planning, produces the long-range 20year metropolitan transportation plan
and the short-range transportation
improvement program. During a
conformity freeze, only projects in the
first four years of the currently
conforming transportation plan and
transportation improvement program
may be found to conform until another
attainment demonstration SIP and RFP
plan are submitted and the motor
vehicle emissions budgets are found to
be adequate or are approved and
conformity to the revised attainment
demonstration and RFP provisions is
determined.238 If the SIP deficiency is
not remedied after 24 months, when
highway sanctions are imposed under
CAA 179(b)(1) and a conformity lapse
occurs. No new transportation plan, TIP,
or project may be found to conform
until another control strategy
implementation plan revision fulfilling
the same CAA requirements is
submitted and conformity to this
234 CAA
233 On
April 1, 1996, the US Department of
Transportation published a document in the
Federal Register describing the criteria to be used
to determine which highway projects can be funded
or approved during the time that the highway
sanction is imposed in an area. (See 61 FR 14363,
April 1, 1996.)
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section 110(c), 42 U.S.C. 7410(c).
strategy SIP revisions as defined in the
transportation conformity include reasonable
further progress plans and attainment
demonstrations (40 CFR 93.101).
236 40 CFR 93.120(a)(2).
237 40 CFR 93.120(a)(3).
238 40 CFR 93.120(a)(2).
235 Control
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84671
submission is determined.239 However,
we do note that exempt projects under
40 CFR 93.126 can proceed during a
conformity lapse.240
V. Incorporation by Reference
In this document, the EPA is
finalizing its proposal to include
regulatory text in an EPA final rule that
includes incorporation by reference. In
accordance with requirements of 1 CFR
51.5, the EPA is incorporating by
reference 18 AAC 50.075, except (d)(2),
State effective January 8, 2020 (requiring
that solid fuel-fired heating devices may
not exceed 20 percent opacity for more
than six minutes in any one hour when
an air quality advisory is in effect). The
EPA has made, and will continue to
make, these materials generally
available through https://
www.regulations.gov and at the EPA
Region 10 Office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
document for more information).
VI. Statutory and Executive Order
Reviews
Additional information about these
statutes and Executive Orders can be
found at https://www2.epa.gov/
lawsregulations/laws-and-executiveorders.
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is not a significant
regulatory action and was therefore not
submitted to the Office of Management
and Budget (OMB) for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq., because the
EPA is taking action on Alaska’s SIP
submissions under section 110 and
subchapter I, part D of the Clean Air Act
will not in-and-of itself create any new
information collection burdens but
simply disapproves portions of certain
State plans submitted for inclusion into
the SIP. Burden is defined at 5 CFR
1320.3(b).
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have
a significant impact on a substantial
number of small entities. This action
will not impose any requirements on
239 40
CFR 93.120(a)(1).
include certain types of projects, such
as safety, mass transit, air quality, and other
projects that do not involve or directly lead to
construction.
240 These
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small entities beyond those imposed by
State law.
Tribal law. Thus, Executive Order 13175
does not apply to this action.
D. Unfunded Mandates Reform Act
G. Executive Order 13045, Protection of
Children From Environmental Health
Risks and Safety Risks
This action contains no Federal
mandates under the provisions of Title
II of the Unfunded Mandates Reform
Act of 1995 (UMRA), 2 U.S.C. 1531–
1538 for State, local, or Tribal
governments or the private sector. This
action approves in part and disapproves
in part portions of certain pre-existing
plans under State or local law and
imposes no new requirements.
Accordingly, no additional costs to
State, local, or Tribal governments, or to
the private sector, result from this
action.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255, August 10,
1999), requires the EPA to develop an
accountable process to ensure
‘‘meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications.’’ ‘‘Policies that have
federalism implications’’ is defined in
the Executive Order to include
regulations that have ‘‘substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.’’ This
action does not have federalism
implications. It will not have substantial
direct effects on the States, on the
relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132, because it
merely approves in part and
disapproves in part portions of certain
State SIP submissions required by the
CAA and does not alter the relationship
or the distribution of power and
responsibilities established in the Clean
Air Act. Thus, Executive Order 13132
does not apply to this action.
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F. Executive Order 13175, Coordination
With Indian Tribal Governments
This action does not have Tribal
implications, as specified in Executive
Order 13175 (65 FR 67249, November 9,
2000), because the SIP submissions that
the EPA is partially approving and
partially disapproving would not apply
on any Indian reservation land or in any
other area where the EPA or an Indian
Tribe has demonstrated that a Tribe has
jurisdiction, and the EPA notes that it
will not impose substantial direct costs
on Tribal governments or preempt
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The EPA interprets Executive Order
13045 (62 FR 19885, April 23, 1997) as
applying only to those regulatory
actions that concern health or safety
risks, such that the analysis required
under section 5–501 of the Executive
Order has the potential to influence the
regulation. This action is not subject to
Executive Order 13045 because it is not
an economically significant regulatory
action based on health or safety risks
subject to Executive Order 13045 (62 FR
19885, April 23, 1997). This action on
Alaska’s SIP submissions under section
110 and subchapter I, part D of the
Clean Air Act will not in-and-of itself
create any new regulations but simply
approves in part and disapproves in part
portions of the Fairbanks Serious Plan
and Fairbanks 189(d) Plan submitted for
inclusion into the SIP.
H. Executive Order 13211, Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not subject to Executive
Order 13211 (66 FR 28355, May 22,
2001) because it is not a significant
regulatory action under Executive Order
12866.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, 12(d) (15 U.S.C. 272 note)
directs the EPA to use voluntary
consensus standards in its regulatory
activities unless to do so would be
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures, and
business practices) that are developed or
adopted by voluntary consensus
standards bodies. NTTAA directs the
EPA to provide Congress, through OMB,
explanations when the Agency decides
not to use available and applicable
voluntary consensus standards. The
EPA believes that this action is not
subject to requirements of section 12(d)
of NTTAA because application of those
requirements would be inconsistent
with the CAA.
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J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Population
Executive Order 12898 (Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal
agencies to identify and address
‘‘disproportionately high and adverse
human health or environmental effects’’
of their actions on minority populations
and low-income populations to the
greatest extent practicable and
permitted by law. The EPA defines
environmental justice (EJ) as ‘‘the fair
treatment and meaningful involvement
of all people regardless of race, color,
national origin, or income with respect
to the development, implementation,
and enforcement of environmental laws,
regulations, and policies.’’ The EPA
further defines the term fair treatment to
mean that ‘‘no group of people should
bear a disproportionate burden of
environmental harms and risks,
including those resulting from the
negative environmental consequences of
industrial, governmental, and
commercial operations or programs and
policies.’’
Alaska did not evaluate
environmental justice considerations as
part of its SIP submittal; the CAA and
applicable implementing regulations
neither prohibit nor require such an
evaluation. The EPA performed an
environmental justice analysis, as is
described in the ‘‘Environmental Justice
Considerations’’ section of the EPA’s
proposed rulemaking. The analysis was
done for the purpose of providing
additional context and information
about this rule to the public, not as a
basis for this action.
K. Submission to Congress and the
Comptroller General
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. The EPA will
submit a report containing this action
and other required information to the
U.S. Senate, the U.S. House of
Representatives, and the Comptroller
General of the United States prior to
publication of the rule in the Federal
Register. A major rule cannot take effect
until 60 days after it is published in the
Federal Register. This action is not a
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‘‘major rule’’ as defined by 5 U.S.C.
804(2).
L. Petitions for Judicial Review
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by February 5, 2024.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this action for
the purposes of judicial review nor does
it extend the time within which a
petition for judicial review may be filed,
and shall not postpone the effectiveness
of such rule or action. This action may
not be challenged later in proceedings to
enforce its requirements. See CAA
section 307(b)(2).
Note: This document was signed
electronically on November 20, 2023. The
original, November 20, 2023, digital signature
was invalidated and therefore the document
was re-signed prior to publication.
Dated: November 28, 2023.
Daniel Opalski,
Acting Regional Administrator, Region 10.
For the reasons set forth in the
preamble, 40 CFR part 52 is amended as
follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
List of Subjects in 40 CFR Part 52
Subpart C—Alaska
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
■
■
2. Section § 52.70 is amended:
a. In table 1 to paragraph (c) by
revising the entry ‘‘18 AAC 50.075’’; and
■ b. In table 5 to paragraph (e) by adding
entries to the end of the table for
‘‘II.III.D.7.01 Executive Summary’’,
‘‘II.III.D.7.02 Background and Overview
of PM2.5 Rule’’, ‘‘III.III.D.7.02 Appendix
to Background and Overview of PM2.5
Rule’’, ‘‘II.III.D.7.03 Nonattainment Area
Boundary and Design Episode
Selection’’, ‘‘III.III.D.7.03 Appendix to
Nonattainment Area Boundary and
Design Episode Selection’’, ‘‘II.III.D.7.04
Ambient Air Quality and Trends’’,
‘‘II.III.D.7.05 PM2.5 Network and
Monitoring Program’’, ‘‘III.III.D.7.05
Appendix to PM2.5 Network and
Monitoring Program’’, ‘‘II.III.D.7.06
Fairbanks Emissions Inventory Data’’,
‘‘III.III.D.7.06 Appendix to Fairbanks
Emissions Inventory Data’’, ‘‘II.III.D.7.07
Control Strategies’’, ‘‘III.III.D.7.07
Appendix to Control Strategies’’, and
‘‘II.III.D.7.08 Modeling’’, ‘‘III.III.D.7.08
Appendix to Modeling’’, ‘‘III.III.D.7.08
Appendix to Modeling’’, ‘‘II.III.D.7.13
Assurance of Adequacy’’, ‘‘III.III.D.7.13
Appendix to Assurance of Adequacy’’,
and ‘‘II.III.D.7.15 Acronyms and
Abbreviations’’.
The revisions and additions read as
follows:
§ 52.70
*
Identification of plan.
*
*
(c) * * *
*
*
TABLE 1 TO PARAGRAPH (c)—EPA-APPROVED ALASKA REGULATIONS
State citation
State
effective
date
Title/subject
EPA approval date
Explanations
Alaska Administrative Code Title 18—Environmental Conservation, Chapter 50—Air Quality Control (18 AAC 50)
18 AAC 50—Article 1. Ambient Air Quality Management
*
18 AAC 50.075 ...................
*
*
*
*
*
Solid Fuel-Fired Heating
Device Visible Emission
Standards.
*
*
*
*
*
11/18/2020 12/5/2023, [INSERT FEDERAL REGISTER CITATION].
*
*
*
*
except (d)(2).
*
*
*
*
(e) * * *
TABLE 5 TO PARAGRAPH (e)—EPA-APPROVED ALASKA NONREGULATORY PROVISIONS AND QUASI-REGULATORY
MEASURES
Applicable geographic or
nonattainment area
Name of SIP provision
*
*
State
submittal
date
*
EPA approval date
*
Explanations
*
*
*
*
*
khammond on DSKJM1Z7X2PROD with RULES5
Recently Approved Plans
*
II.III.D.7.01 Executive Summary.
*
*
Fairbanks North Star Borough.
II.III.D.7.02 Background
and Overview of PM2.5
Rule.
Fairbanks North Star Borough.
VerDate Sep<11>2014
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*
*
12/13/2019 12/5/2023, [Insert FEDERAL REGISTER citation].
12/13/2019 12/5/2023, [Insert FEDERAL REGISTER citation].
Frm 00049
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Sfmt 4700
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TABLE 5 TO PARAGRAPH (e)—EPA-APPROVED ALASKA NONREGULATORY PROVISIONS AND QUASI-REGULATORY
MEASURES—Continued
Applicable geographic or
nonattainment area
khammond on DSKJM1Z7X2PROD with RULES5
Name of SIP provision
State
submittal
date
III.III.D.7.02 Appendix to
Background and Overview of PM2.5 Rule.
II.III.D.7.03 Nonattainment
Area Boundary and Design Episode Selection.
III.III.D.7.03 Appendix to
Nonattainment Area
Boundary and Design
Episode Selection.
II.III.D.7.04 Ambient Air
Quality and Trends.
Fairbanks North Star Borough.
12/13/2019
Fairbanks North Star Borough.
12/13/2019
Fairbanks North Star Borough.
12/13/2019
Fairbanks North Star Borough.
12/15/2020
II.III.D.7.05 PM2.5 Network
and Monitoring Program.
Fairbanks North Star Borough.
12/15/2020
III.III.D.7.05 Appendix to
PM2.5 Network and Monitoring Program.
II.III.D.7.06 Fairbanks Emissions Inventory Data.
Fairbanks North Star Borough.
12/15/2020
Fairbanks North Star Borough.
12/15/2020
III.III.D.7.06 Appendix to
Fairbanks Emissions Inventory Data.
II.III.D.7.07 Control Strategies.
Fairbanks North Star Borough.
12/15/2020
Fairbanks North Star Borough.
12/15/2020
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PO 00000
Frm 00050
Fmt 4701
EPA approval date
Explanations
12/5/2023, [Insert FEDERAL REGISTER citation].
12/5/2023, [Insert FEDERAL REGISTER citation].
12/5/2023, [Insert FEDERAL REGISTER citation].
12/5/2023, [Insert FEDERAL REGISTER citation].
12/5/2023, [Insert FEDERAL REGISTER citation].
12/5/2023, [Insert FEDERAL REGISTER citation].
12/5/2023, [Insert FEDERAL REGISTER citation].
12/5/2023, [Insert FEDERAL REGISTER citation].
12/5/2023, [Insert FEDERAL REGISTER citation].
Sfmt 4700
E:\FR\FM\05DER5.SGM
Approved for purposes of the Fairbanks
189(d) Plan 2019 base year emissions
inventory.
Approved for purposes of the Fairbanks
189(d) Plan 2019 base year emissions
inventory.
Approved for purposes of the Fairbanks
Serious Plan and Fairbanks 189(d)
Plan for the following emission source
categories: solid fuel home heating
device; residential and commercial
fuel oil combustion; charbroiler; used
oil burner; incinerator; PM2.5 and NH3
BACT determination for Doyon-Fort
Wainwright Central Heating and
Power Plant; PM2.5 and NH3 BACT
determination for the University of
Alaska Fairbanks Campus Power
Plant except for the PM2.5 BACT determination for the three small diesel
fired engines (EUs 23, 26 and 27);
PM2.5 and NH3 BACT determinations
for Golden Valley Electric Association
Zehnder Power Plant; PM2.5 and NH3
BACT Determinations for the Golden
Valley Electric Association North Pole
Power Plant; and Nonattainment New
Source Review Requirements.
05DER5
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84675
TABLE 5 TO PARAGRAPH (e)—EPA-APPROVED ALASKA NONREGULATORY PROVISIONS AND QUASI-REGULATORY
MEASURES—Continued
Applicable geographic or
nonattainment area
Name of SIP provision
EPA approval date
Explanations
III.III.D.7.07 Appendix to
Control Strategies.
Fairbanks North Star Borough.
12/15/2020
12/5/2023, [Insert FEDERAL REGISTER citation].
II.III.D.7.08 Modeling ..........
Fairbanks North Star Borough.
12/15/2020
12/5/2023, [Insert FEDERAL REGISTER citation].
III.III.D.7.08 Appendix to
Modeling.
Fairbanks North Star Borough.
12/15/2020
12/5/2023, [Insert FEDERAL REGISTER citation].
II.III.D.7.13 Assurance of
Adequacy.
Fairbanks North Star Borough.
12/13/2019
III.III.D.7.13 Appendix to
Assurance of Adequacy.
Fairbanks North Star Borough.
12/13/2019
II.III.D.7.15 Acronyms and
Abbreviations.
Fairbanks North Star Borough.
12/13/2019
12/5/2023, [Insert FEDERAL REGISTER citation].
12/5/2023, [Insert FEDERAL REGISTER citation].
12/5/2023, [Insert FEDERAL REGISTER citation].
3. Amend § 52.73 by adding paragraph
(e)(2) to read as follows:
■
§ 52.73
Approval of plans.
*
khammond on DSKJM1Z7X2PROD with RULES5
State
submittal
date
*
*
*
*
(e) * * *
(2) Fairbanks.
(i) The EPA approves the revisions to
the Alaska State Implementation Plan
submitted on December 13, 2019, and
December 15, 2020, as meeting the
following requirements applicable to the
Fairbanks North Star Borough 2006 24hour PM2.5 Nonattainment Area:
(A) 2019 base year emissions
inventory (Clean Air Act section
172(c)(3), 42 U.S.C. 7502(c)(3), 40 CFR
51.1008(c)(1)) for areas subject to Clean
VerDate Sep<11>2014
18:44 Dec 04, 2023
Jkt 262001
Air Act section 189(d), 42 U.S.C.
7513a(d);
(B) PM2.5 precursor demonstrations
for NOX and VOC emissions (Clean Air
Act section 189(e), 42 U.S.C. 7513a(e);
40 CFR 51.1006(a));
(C) Partial approval of the control
strategy as meeting BACM and BACT
requirements under Clean Air Act
section 189(b)(1)(B), 42 U.S.C.
7513a(b)(1)(B), and 40 CFR 51.1010(a)
for ammonia controls for major
stationary sources, the solid fuel home
heating device source category (except
the requirements for dry wood sellers),
residential and commercial fuel oil
combustion source category; the
charbroiler source category, used oil
burner source category, and mobile
PO 00000
Frm 00051
Fmt 4701
Sfmt 4700
Approved for purposes of the Fairbanks
Serious Plan and Fairbanks 189(d)
Plan for the following emission source
categories: solid fuel home heating
device; residential and commercial
fuel oil combustion; charbroiler; used
oil burner; incinerator; PM2.5 and NH3
BACT determination for Doyon-Fort
Wainwright Central Heating and
Power Plant; PM2.5 and NH3 BACT
determination for the University of
Alaska Fairbanks Campus Power
Plant except for the PM2.5 BACT determination for the three small diesel
fired engines (EUs 23, 26 and 27);
PM2.5 and NH3 BACT determinations
for Golden Valley Electric Association
Zehnder Power Plant; PM2.5 and NH3
BACT Determinations for the Golden
Valley Electric Association North Pole
Power Plant; and Nonattainment New
Source Review Requirements.
Approved for purposes of the Fairbanks
189(d) Plan for the PM2.5 precursor
demonstration for NOX and VOC
emissions as it relates to BACM/BACT
control measure requirements and
control strategy requirements for areas
subject to CAA section 189(d).
Approved for purposes of the Fairbanks
189(d) Plan for the PM2.5 precursor
demonstration for NOX and VOC
emissions as it relates to BACM/BACT
control measure requirements and
control strategy requirements for areas
subject to CAA section 189(d).
source category (except for rejection of
vehicle anti-idling requirements); and
(D) Nonattainment New Source
Review Requirements under Clean Air
Act sections 172(c)(5), 189(b)(3), 189(d),
and 189(e), 42 U.S.C. 7502(c)(5),
7513a(b)(3), 7513a(d), 7513a(e), and 40
CFR 51.165, 40 CFR 51.1003(b)(1)(viii),
and 40 CFR 51.1003(c)(1)(viii).
(ii) The EPA disapproves the revisions
to the Alaska State Implementation Plan
submitted on December 13, 2019, and
December 15, 2020, as not meeting the
following requirements applicable to the
Fairbanks North Star Borough 2006 24hour PM2.5 Nonattainment Area:
(A) Attainment projected emissions
inventory requirements of Clean Air Act
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khammond on DSKJM1Z7X2PROD with RULES5
section 172(c)(1), 42 U.S.C. 7502(c)(1),
and 40 CFR 51.1008(c)(2));
(B) Partial disapproval as not meeting
applicable control strategy BACM and
BACT requirements (Clean Air Act
section 189(b)(1)(B), 42 U.S.C.
7513a(b)(1)(B), and 40 CFR 51.1010(a))
for the following emission source
categories: PM2.5 and SO2 control
analysis for major stationary sources,
requirements for wood sellers, coal-fired
heating devices, coffee roasters,
weatherization and energy efficiency
measures, mobile source category
(disapproving for lack of vehicle antiidling requirements);
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(C) Additional measures (beyond
those already adopted in previous
nonattainment plan SIP submissions for
the area as RACM/RACT, BACM/BACT,
and MSM (if applicable)) under Clean
Air Act section 189(d), 42 U.S.C.
7513a(d), and 40 CFR 51.1010(c);
(D) Attainment demonstration and
modeling requirements of Clean Air Act
sections 188(c)(2) and 189(b)(1)(A), 42
U.S.C. 7513(c)(2) and 7513a(b)(1)(A),
and 40 CFR 51.1003(c) and 51.1011;
(E) Reasonable further progress (RFP)
requirements of Clean Air Act section
172(c)(2), 42 U.S.C. 7502(c)(2), and 40
CFR 51.1012;
PO 00000
Frm 00052
Fmt 4701
Sfmt 9990
(F) Quantitative milestones
requirements of Clean Air Act section
189(c), 42 U.S.C. 7513a(c), and 40 CFR
51.1013;
(G) Contingency measures
requirements of Clean Air Act section
172(c)(9), 42 U.S.C. 7502(c)(9), and 40
CFR 51.1014 applicable to Serious areas
subject to Clean Air Act sections 189(b)
and 189(d), 42 U.S.C. 7513a(b) and
7513a(d); and
(H) Motor vehicle emission budgets
requirements under 40 CFR 51.1003(d)
and 93.118, without a protective finding
under 40 CFR 93.120.
[FR Doc. 2023–26521 Filed 12–4–23; 8:45 am]
BILLING CODE 6560–50–P
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]]>Agencies
[Federal Register Volume 88, Number 232 (Tuesday, December 5, 2023)]
[Rules and Regulations]
[Pages 84626-84676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-26521]
[[Page 84625]]
Vol. 88
Tuesday,
No. 232
December 5, 2023
Part V
Environmental Protection Agency
-----------------------------------------------------------------------
40 Part 52
Air Plan Partial Approval and Partial Disapproval; AK, Fairbanks North
Star Borough; 2006 24-hour PM2.5 Serious Area and 189(d) Plan; Final
Rule
Federal Register / Vol. 88 , No. 232 / Tuesday, December 5, 2023 /
Rules and Regulations
[[Page 84626]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2022-0115; FRL-9755-02-R10]
Air Plan Partial Approval and Partial Disapproval; AK, Fairbanks
North Star Borough; 2006 24-Hour PM2.5 Serious Area and
189(d) Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving in part
and disapproving in part the State implementation plan (SIP)
submissions, submitted by the State of Alaska (Alaska or the State) to
address Clean Air Act (CAA or Act) requirements for the 2006 24-hour
fine particulate matter (PM2.5) national ambient air quality
standard (NAAQS) in the Fairbanks North Star Borough PM2.5
nonattainment area (Fairbanks PM2.5 Nonattainment Area).
Alaska made these submissions on December 13, 2019, and December 15,
2020.
DATES: This final rule is effective on January 4, 2024.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R10-OAR-2022-0115. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available through https://www.regulations.gov, or please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: Matthew Jentgen, EPA Region 10, 1200
Sixth Avenue--Suite 155, Seattle, WA, 98101, (206) 553-0340,
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, it is intended to refer to EPA.
Table of Contents
I. Background
II. Public Comments and EPA Responses
A. Timing of the EPA's Rulemaking
B. Environmental Justice Considerations
C. Air Quality Monitoring in the Fairbanks PM2.5
Nonattainment Area
D. Clean Air Act Requirements for PM2.5 Serious Area
Plans and Serious PM2.5 Areas that Fail to Attain
E. Review of the Fairbanks Serious Plan and Fairbanks 189(d)
Plan
1. Emission Inventories
2. Pollutants Addressed
3. Control Strategy
4. Attainment Demonstration and Modeling
5. Reasonable Further Progress
6. Quantitative Milestones
7. Contingency Measures
8. Motor Vehicle Emissions Budgets for Transportation Conformity
9. Nonattainment New Source Review Requirements
10. Additional Comments
III. Final Action
A. Final Approval
B. Final Disapproval
IV. Consequences of a Disapproval
A. The Act's Provisions for Mandatory Sanctions
B. Federal Implementation Plan Provisions That Apply if a State
Fails to Submit an Approvable Plan
C. Ramifications Regarding Transportation Conformity
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132, Federalism
F. Executive Order 13175, Coordination With Indian Tribal
Governments
G. Executive Order 13045, Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211, Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Population
K. Submission to Congress and the Comptroller General
L. Petitions for Judicial Review
I. Background
For a complete regulatory history of the Fairbanks PM2.5
Nonattainment Area, see the EPA's proposal, published on January 10,
2023 (88 FR 1454) (Proposal). This action finalizes the EPA's specific
assessment of the State of Alaska's SIP submissions to meet
nonattainment plan requirements for the Fairbanks PM2.5
Nonattainment Area, as discussed in the Proposal.
In summary, Alaska submitted a plan to address the Serious area
plan requirements on December 13, 2019 (Fairbanks Serious Plan). On
September 2, 2020, the EPA determined that the area failed to attain
the NAAQS by the outermost statutory Serious area attainment date of
December 31, 2019, and denied the State's Serious area attainment date
extension request under CAA section 188(e) (85 FR 54509). As a result,
Alaska was required to submit a new SIP submission to meet both the
Serious area attainment plan requirements and the additional CAA
requirements set forth in CAA section 189(d) by December 31, 2020.\1\
---------------------------------------------------------------------------
\1\ 40 CFR 51.1003(c).
---------------------------------------------------------------------------
Prior to the EPA taking action to approve or disapprove the
Fairbanks Serious Plan, Alaska withdrew and replaced several chapters
of the Fairbanks Serious Plan with the Fairbanks 189(d) Plan
submission, submitted on December 15, 2020 (Fairbanks 189(d) Plan).\2\
Thus, the State intended to address the Serious area plan requirements
with a combination of unwithdrawn portions of the Fairbanks Serious
Plan and revised elements submitted as part of the Fairbanks 189(d)
Plan. In this final action, the EPA is not acting on the withdrawn
elements of the prior Fairbanks Serious Plan, but only acting on those
elements that remain as revised by Alaska in the Fairbanks 189(d) Plan.
Additionally, on September 25, 2023, Alaska withdrew the State's sulfur
dioxide (SO2) best available control technology (BACT)
findings submitted as part of the Fairbanks Serious Plan.\3\
---------------------------------------------------------------------------
\2\ See SIP submission cover letter, submitted by Alaska
Department of Environmental Conservation (ADEC) Commissioner Jason
Brune to EPA Regional Administrator, Chris Hladick, on December 15,
2020.
\3\ ``Fairbanks SIP submissions for the Serious area and 189(d)
plans'' Letter from Emma Pokon, Acting Commissioner, Alaska
Department of Environmental Conservation, to Casey Sixkiller,
Regional Administrator, EPA Region 10, September 25, 2023. Included
in the docket for this action.
---------------------------------------------------------------------------
In the Proposal, the EPA proposed to approve the following
components of the Fairbanks Serious Plan and Fairbanks 189(d) Plan: the
base year emissions inventory; the State's PM2.5 precursor
demonstrations for nitrogen oxide (NOX) and volatile organic
compound (VOC) emissions; the control strategy for the solid fuel-fired
heating device source category and ammonia (NH3) BACM and
BACT findings, as applicable; specific regulations under 18 AAC 50.075
through 077 and the Fairbanks Emergency Episode Plan \4\
[[Page 84627]]
(except for the contingency measure provision).
---------------------------------------------------------------------------
\4\ State Air Quality Control Plan, Vol. II, Chapter III.D.7.12.
This portion of Alaska's SIP is distinct from Alaska's emergency
powers under Alaska Statutes 46.03.820 and 18 AAC 50.245-50.246 that
authorize ADEC to declare an air alert, air warning, or air advisory
to notify the public and prescribe and publicize curtailment action.
In prior actions, the EPA has determined that these authorities are
consistent with CAA section 110(a)(2)(G) and 40 CFR 51.150 through
51.153. See 83 FR 60769, November 27, 2018, at p. 60772.
---------------------------------------------------------------------------
The EPA proposed disapproval of the following elements of the
Fairbanks Serious Plan and the Fairbanks 189(d) Plan as not meeting
applicable requirements for Serious area plan requirements and CAA
section 189(d) plan requirements: attainment projected emissions
inventory; best available control measure (BACM) requirements for
residential and commercial fuel combustion, wood sellers; coal-fired
heating devices, coffee roasters, charbroilers, used oil burners,
weatherization and energy efficiency measures, and mobile source
emissions. The EPA proposed disapproval of most of the control strategy
BACT requirements for certain large stationary sources in the Fairbanks
PM2.5 Nonattainment Area. Additionally, the EPA proposed
disapproval of the Fairbanks Serious Plan and Fairbanks 189(d) Plan for
not meeting the remaining nonattainment planning elements: the CAA
section 189(d) requirement to analyze additional measures (beyond those
already adopted in previous nonattainment plan SIP submissions for the
area as reasonably available control measure/technology (RACM/RACT),
BACM/BACT, and Most Stringent Measures (MSM)); \5\ attainment
demonstration and modeling; reasonable further progress; motor vehicle
emission budgets; quantitative milestones; and contingency measures.
---------------------------------------------------------------------------
\5\ MSM is applicable if the EPA has previously granted an
extension of the attainment date under CAA section 188(e) for the
nonattainment area and NAAQS at issue. As mentioned above, the EPA
denied Alaska's request to extend the Serious area attainment date
for the Fairbanks Serious Nonattainment Area.
---------------------------------------------------------------------------
Section II of this preamble summarizes comments received during the
public comment period for the Proposal and provides the EPA's
responses. With respect to most planning requirements, the EPA is
finalizing approval and disapproval of the Fairbanks Serious Plan and
Fairbanks 189(d) Plan as proposed. However, based on the comments
received, the EPA is finalizing approval of certain portions of the
Fairbanks Serious Plan and Fairbanks 189(d) Plan that it originally
proposed to disapprove. Specifically, the EPA is finalizing approval of
Alaska's economic infeasibility demonstrations for a number of area
sources identified in Alaska's 2019 base year emission inventory.
Alaska's economic infeasibility demonstration provided updated cost
information and additional considerations for a number of control
measures. Based on these comments, we are finalizing approval for
residential and commercial fuel oil combustion, charbroilers, used oil
burners, and most of the measures for mobile sources. This means the
EPA is approving Alaska's evaluation that ULSD adoption for residential
and commercial fuel oil combustion is not economically feasible at this
time and that Alaska will not have to adopt additional controls for
these emission sources to satisfy the control strategy requirements for
Serious areas and Serious areas that fail to attain.\6\
---------------------------------------------------------------------------
\6\ We note that while we are approving most of Alaska's
analysis for mobile sources, Alaska will need to further evaluate,
and adopt and implement as necessary, light-duty vehicle anti-idling
measures to meet CAA requirements.
---------------------------------------------------------------------------
The EPA will work with the State of Alaska to address those
portions of the Fairbanks Serious Plan and Fairbanks 189(d) Plan that
the EPA is disapproving in this action. Alaska may rectify each of
these disapprovals with a revised SIP submission. The EPA understands
that the State is developing a revised SIP submission to address the
plan deficiencies that are identified in section III of this preamble.
Specifically, with this new SIP submission, the EPA anticipates Alaska
will identify, adopt, and implement all feasible control measures and
ensure that such control measures are adopted and submitted in a manner
that is enforceable as a practical matter and permanent.
The EPA also understands that the State is nearing completion of an
updated air quality model that may better characterize particulate
emissions in the Fairbanks PM2.5 Nonattainment Area. Given
this development, Alaska may potentially address the EPA's disapproval
of the Fairbanks Serious Plan and Fairbanks 189(d) Plan for failure to
adopt and implement SO2 BACT requirements for major
stationary sources though either identifying, adopting, and
implementing BACT for the control of SO2 emissions from
these sources or a major stationary source SO2 precursor
demonstration that meets statutory and regulatory requirements and
clearly demonstrates these sources do not contribute significantly to
PM2.5 levels that exceed the NAAQS in the Fairbanks
PM2.5 Nonattainment Area.
The State may also update its modeled attainment demonstration,
reasonable further progress provisions, quantitative milestones, and
attainment projected inventories. Finally, the State will need to
evaluate and adopt adequate contingency measures.
II. Public Comments and EPA Responses
The EPA provided a 72-day period for the public to comment on the
proposed action that ended on March 23, 2023. We received 164 public
comments.\7\ The public comments are included in the docket for this
action. On March 7, 2023, the EPA held a public hearing in Fairbanks,
Alaska, at the Wood Center, University of Alaska Fairbanks. Comments
received at the public hearing have been treated the same as written
comments submitted to the docket and are summarized in this section II
of the preamble. The transcript for the March 7, 2023, public hearing
is also included in the docket for this action. Additionally, on April
17, 2023, EPA Region 10 Regional Administrator Sixkiller engaged in
consultation with Doyon, Limited as an Alaska Native Corporation under
the Alaska Native Claims Settlement Act (ANCSA) on the Proposal.\8\
Separately, Doyon, Limited provided comments during the public hearing.
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\7\ The EPA received 61 comments as part of oral testimony
provided during EPA's March 7, 2023, public hearing and 103 comments
as part of written testimony submitted to the docket.
\8\ Letter from Region 10 Regional Administrator Casey Sixkiller
to Aaron Schutt, President and CEO of Doyon, Limited, March 30,
2023. Included in the docket for this action.
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A. Timing of the EPA's Rulemaking
The State of Alaska submitted the Fairbanks Serious Plan on
December 13, 2019. On January 10, 2020, the EPA made a finding that
this submission was administratively complete.\9\ Alaska subsequently
submitted the Fairbanks 189(d) Plan on December 15, 2020. That
submission was deemed complete by operation of law on June 15, 2021.
Therefore, in accordance with CAA section 110(k)(2), the EPA's
statutory deadlines to act on the Fairbanks Serious Plan and Fairbanks
189(d) Plan were January 10, 2021, and June 15, 2022, respectively. In
order to satisfy its mandatory duties under the CAA, the EPA proposed
action on both the Fairbanks Serious Plan and Fairbanks 189(d) Plan on
January 10, 2023. After holding a public hearing on March 7, 2023,
accepting written comments, and considering said comments, the EPA is
finalizing action on these plans.
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\9\ 85 FR 7760, February 11, 2020.
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Comments: The EPA received several comments requesting that it
delay finalizing action on the Fairbanks Serious Plan and Fairbanks
189(d) Plan. The primary basis for the request was to allow Alaska to
complete modeling work necessary to support a future SO2
precursor demonstration for major
[[Page 84628]]
stationary sources. Many of the commenters presumed that the outcome of
the precursor demonstration would show that SO2 emissions
from major stationary sources is not a significant contributor to
PM2.5 formation in the Fairbanks 2006 PM2.5
Nonattainment Area. Other commenters stated generally that the EPA
should avoid hasty decisions.
In its comments submitted during the public comment period, Alaska
represented that it would complete the necessary modeling work and
submit a revised SIP submission to the EPA by May 1, 2024. After the
close of the public comment period, Alaska submitted additional
comments via letter requesting an additional year from the date of the
letter--until July 24, 2024--for Alaska to submit a revised SIP
submission. In the latter letter, Alaska enclosed Regional Applied
Research Effort (RARE) \10\ meeting notes that include preliminary
modeling results for the Fairbanks PM2.5 Nonattainment Area
based on continuing analysis of sulfate formation in the area. Alaska
asserted that these preliminary modeling results indicate that major
point sources of SO2 emissions do not significantly
contribute to particulate matter pollution during winter-time episodic
conditions in the area. Alaska further asserted that the EPA has the
discretion and authority to grant the State an additional year from
July 24, 2023, to provide a revised SIP submission before taking final
action on the already submitted Fairbanks Serious Plan and Fairbanks
189(d) Plan.
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\10\ EPA's Regional Applied Research Effort (RARE) is an Office
of Research and Development (ORD) program administered by the Office
of Science Policy (OSP) that responds to the high[hyphen]priority
research needs of EPA Regions.
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Response: Consistent with its obligations in CAA section 110(k)(2)
to act on SIP submissions, the EPA is finalizing action on the
Fairbanks Serious Plan and Fairbanks 189(d) Plan in this action. By
statute, the EPA is required to take final action within one year of a
SIP submission being complete or complete by operation of law. The EPA
has already delayed action well past the deadlines imposed by the CAA.
Thus, further delay would not be consistent with these requirements.
Contrary to Alaska's comments, the EPA does not have generic authority
to modify the CAA deadlines that pertain to when States must submit SIP
submissions, or to when the EPA must take action on such SIP
submissions. Nor does the EPA have the authority to postpone the
statutory deadline for the imposition of mandatory sanctions under CAA
section 179, or its obligation to promulgate a Federal Implementation
Plan pursuant to CAA section 110(c).
The CAA establishes a process for States to rectify SIP
disapprovals via a new SIP submission.\11\ The CAA does not impose a
mandatory deadline for States to make a new SIP submission in response
to an EPA disapproval. Rather, the CAA imposes mandatory sanctions on
the State at 18 and 24 months following the effective date of the EPA's
disapproval, and an obligation on the EPA to promulgate a FIP within
two years of the effective date of such disapproval. To avoid the
potential for mandatory sanctions and a FIP, Alaska should follow this
process to make a timely corrective SIP submission to address the
portions of the Fairbanks Serious Plan and Fairbanks 189(d) Plan that
the EPA is disapproving. Alaska may include an optional SO2
precursor demonstration in this SIP submission, if it provides a valid
basis to establish that SO2 emissions from either all
sources or major stationary sources do not significantly contribute to
PM2.5 formation.
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\11\ CAA section 110(k)-(l) and 179. 40 CFR part 51, subpart F.
---------------------------------------------------------------------------
As discussed further in the following sections of this preamble,
the EPA will review any future SO2 precursor demonstration
based on the statutory and regulatory requirements and EPA guidance.
The EPA emphasizes that the Agency will review the entire weight-of-
evidence of any precursor demonstration, not only the outputs of any
particular air quality model. Moreover, delaying action on a SIP
submission based on an anticipated future SIP submission that may or
may not address identified SIP deficiencies would be arbitrary and
inconsistent with the CAA's mandatory requirements.
The commenters advocating further delay of this final action,
appeared to suggest that if the EPA finds that any portion of a SIP
submission does not meet CAA requirements, then the EPA must delay
fulfilling its statutory obligation in order to allow a State to revise
the SIP submission, rather than act on the SIP submission. The EPA does
not interpret the CAA as requiring this approach. Rather, the CAA
requires the EPA to approve or disapprove a SIP submission within 12
months of the date on which it is complete.\12\ To the extent that a
State seeks to revise its approach in a SIP submission following a
disapproval, it may do so consistent with the process and schedule
provided for in CAA sections 179(a) and 110(c)(1). Thus, the EPA is
satisfying its CAA obligation to take action on the Fairbanks Serious
Plan and Fairbanks 189(d) Plan.
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\12\ CAA section 110(k)(2), 42 U.S.C. 7410(k)(2).
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B. Environmental Justice Considerations
Executive Order 12898 (59 FR 7629, February 16, 1994) requires that
Federal agencies, to the greatest extent practicable and permitted by
law, identify and address disproportionately high and adverse human
health or environmental effects of their actions on minority and low-
income populations. Additionally, Executive Order 13985 (86 FR 7009,
January 25, 2021) directs Federal government agencies to assess
whether, and to what extent, their programs and policies perpetuate
systemic barriers to opportunities and benefits for people of color and
other underserved groups, and Executive Order 14008 (86 FR 7619,
February 1, 2021) directs Federal agencies to develop programs,
policies, and activities to address the disproportionate health,
environmental, economic, and climate impacts on disadvantaged
communities.
In the Proposal, the EPA provided the results of a screening-level
analysis using the EPA's environmental justice (EJ) screening and
mapping tool (``EJSCREEN'').\13\ The purpose of conducting this
analysis and sharing the results was to provide information and
context. The EPA did not base the proposed action nor this final action
on environmental justice considerations. Rather, the EPA based the
proposed action and this final action on a determination of whether the
Fairbanks Serious Plan and Fairbanks 189(d) Plan meet applicable CAA
requirements.
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\13\ 88 FR 1454, January 10, 2023, at pp.1455-1456. EJSCREEN
provides a nationally consistent dataset and approach for combining
environmental and demographic indicators. EJSCREEN is available at
https://www.epa.gov/ejscreen/what-ejscreen.
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The EPA noted in the Proposal that the Fairbanks PM2.5
Nonattainment Area has some of the highest PM2.5
concentrations in the country and has been designated nonattainment for
the 2006 24-hour PM2.5 NAAQS since 2009. Residents in
Fairbanks and North Pole have been subjected to a high pollution burden
for many years. Other health and socioeconomic indices, identified in
EJSCREEN, that are impacted by elevated ambient PM2.5
concentrations include: low life expectancy (95-100 percentile) and
asthma (90-95 percentile) in an area south of downtown Fairbanks, and
population under age 5 (95-100 percentile) in various areas within the
Fairbanks PM2.5 Nonattainment Area. Most of Alaska,
[[Page 84629]]
including the Fairbanks area, is considered ``medically underserved.''
\14\
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\14\ Medically Underserved Areas are defined by the Health
Resources and Services Administration as geographic areas with a
lack of access to primary care services. For more information see:
https://bhw.hrsa.gov/workforce-shortage-areas/shortage-designation#mups.
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A review of other environmental justice indices in EJSCREEN for the
cities of Fairbanks, Alaska and North Pole, Alaska are below the 80th
percentile, with some areas around downtown Fairbanks in the 80-90th
percentile for the following indices: Superfund proximity, Hazardous
waste proximity, and Underground storage tanks. No indices are above
the 90th percentile for the Fairbanks PM2.5 Nonattainment
Area. EJSCREEN reports for Fairbanks and North Pole are included in the
docket for this action.
The EPA noted in the Proposal that Alaska's expeditious submission
of a new SIP to correct the deficiencies identified in this final
action will ensure the plan meets CAA requirements and achieve
attainment as expeditiously as practicable, consistent with the
principles of environmental justice.
1. Comments and Responses
The EPA received multiple comments regarding environmental justice
considerations.
Comment: Alaska argued that the EPA proposed to improperly shift
the burden of addressing environmental justice from the EPA to the
State of Alaska and that the EPA's proposed disapproval of certain
elements of the Fairbanks Serious Plan and Fairbanks 189(d) Plan is
inconsistent with the principles of environmental justice. As support,
Alaska quoted from the EPA's statement in the proposed action:
``Alaska's expeditious submission of plan revisions that correct the
deficiencies identified in this document will ensure the plan meets CAA
requirements, and the measures in the plan when implemented achieves
attainment as expeditiously as practicable. And in doing so, the plan
revisions address harmful and disproportionate health and environmental
effects on underserved and overburdened populations, consistent with
the principles of environmental justice.''
Alaska also stated that Fairbanks residents already face severe
economic challenges including utility costs, transportation,
healthcare, internet connectivity, and food and that adopting and
implementing additional control measures will exacerbate these
challenges. The commenter stated that the EPA ignored the economic
challenges faced by Fairbanks residents in its proposed rule.
Response: The EPA is finalizing action on the Fairbanks Serious
Plan and Fairbanks 189(d) Plan based on a determination of whether
these plans meet applicable CAA requirements. The EPA did not propose
to disapprove any portion of the Fairbanks Serious Plan and Fairbanks
189(d) Plan based on environmental justice considerations. The EPA
clearly articulated that it was proposing to disapprove certain
portions of the SIP submissions because of specifically identified
deficiencies with respect to CAA requirements.
In the Proposal the EPA did, however, provide factual information
concerning environmental justice concerns in the Fairbanks
PM2.5 Nonattainment Area as part of its own evaluation.\15\
The EPA provided the results of EJSCREEN and evaluated the impacts of
finalizing its proposal for informational purposes only. The EPA
expressly stated that it did so ``to better understand the context of
our proposed action on the Fairbanks Serious Plan and Fairbanks 189(d)
Plan on these communities.'' \16\ Thus, the EPA disagrees with Alaska
that it proposed to transfer the EPA's obligations under Executive
Order 12898 to the State. Executive Order 12898 does not impose any
such obligations on the State of Alaska. Alaska does, however, have the
obligation to develop and submit implementation plans for the Fairbanks
2006 24-hour PM2.5 Nonattainment Area that meet CAA
requirements. In the Proposal, the EPA observed that the State doing so
will reduce air pollution in the nonattainment area and thus reduce the
burden on Fairbanks residents who experience some of the worst air
pollution in the country.
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\15\ See, e.g., 88 FR 1454, January 10, 2023, at p. 1455
(``Executive Order 12898 . . . requires that Federal agencies, the
greatest extent practicable and permitted by law, identify and
address disproportionately high and adverse human health or
environmental effects of their actions.'').
\16\ 88 FR 1454, January 10, 2023, at pp. 1455-1456.
---------------------------------------------------------------------------
The EPA also disagrees with Alaska that it ignored the economic
challenges faced by Fairbanks residents in its proposed action. On the
contrary, the EPA's proposed action and this final action, particularly
with regards to the adequacy of the control strategy, was based on a
thorough review of the technological and economic infeasibility of
specific measures. In many cases, the EPA is finalizing approval of
Alaska's rejection of certain control measures based in part on
Alaska's demonstrations that the measures are infeasible due either to
local circumstances or cost. Nevertheless, the State also
oversimplifies this issue by claiming that the cost of imposing
controls as required by the CAA to achieve actual attainment of the
NAAQS in the Fairbanks PM2.5 Nonattainment Area necessarily
outweighs any public health benefits from such controls. The ongoing
nonattainment of the NAAQS in the area likewise imposes costs, as
measured in adverse public health impacts due to exposure to air
pollution.
Comment: The EPA also received comments from environmental
organizations representing citizens in the Fairbanks PM2.5
Nonattainment Area concerning environmental justice issues. The
commenter advocated that ``all possible measures should be taken to
reduce and eliminate exposures.'' In particular, the commenter asserted
that there should be additional Federal Reference Method (FRM) monitors
in the area, as well as additional monitors near schools, elder care
facilities, and hospitals to assess impacts on vulnerable communities.
The commenter asked that regulators give attention to cumulative
impacts from exposure in the area, such as from coal ash and per-and
polyfluoroalkyl substances (PFAS) in drinking water. Finally, the
commenter expressed concern that ``without the intervention of the EPA
and Federal regulators, those who already bear a disproportionate
burden will continue to experience the worst outcomes due to Alaska's
inaction on this issue.''
Response: The EPA agrees with the commenter that there are
environmental justice concerns in the Fairbanks PM2.5
Nonattainment Area, as evidenced by facts indicated by the EJSCREEN
analysis, such as the prevalence of asthma and life expectancy. The EPA
anticipates that compliance with CAA requirements for nonattainment
plans should result in improvements for purposes of environmental
justice in this area. As explained in the preceding paragraphs of this
preamble, however, the EPA discussed environmental justice impacts of
this action in the Proposal for informational purposes only. The EPA's
final action, with respect to both approvals and disapprovals, is based
on the Agency's evaluation of the Fairbanks Serious Plan and Fairbanks
189(d) Plan with respect to applicable CAA requirements. The EPA will
address the commenters specific concerns with respect to monitoring in
the area in section II.C. of this preamble.
[[Page 84630]]
C. Air Quality Monitoring in the Fairbanks PM2.5 Nonattainment Area
In the Proposal we described Alaska's air quality monitoring
network for the Fairbanks PM2.5 Nonattainment Area, and
noted that it includes four regulatory monitor site locations. Table 1
of this preamble includes the site names, identification numbers,
monitor data, and updated design values for the PM2.5
monitor site locations in Fairbanks. In the Proposal, we explained that
with EPA approval, the State discontinued the monitor location at the
State Office Building and established the A Street monitor as a monitor
location in 2019. Alaska established the A Street monitor location as a
State or Local Air Monitoring Station (SLAMS) PM2.5
monitoring station to characterize PM2.5 concentrations in
the Fairbanks portion of the nonattainment area. The EPA also explained
in the Proposal that the Hurst Road monitor measures expected maximum
concentrations for the nonattainment area.\17\ Following is a table of
air quality monitoring data in the Fairbanks PM2.5
Nonattainment Area. The EPA notes this table was updated from the
Proposal because monitoring data from 2022 became available since the
Proposal was published. Therefore, Table 1 of this preamble includes
the 2020-2022 24-hour Design Values, while the Proposal included the
2019-2021 24-hour Design Values.
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\17\ For further details of the air quality monitoring network
in the Fairbanks PM2.5 Nonattainment Area, see the EPA's
approval letters of Alaska's Annual Monitoring Network Plans for
each year between 2019 to 2022, which are included in the docket for
this action.
Table 1--Fairbanks PM2.5 Monitoring Locations and Recent Site-Level Design Values
--------------------------------------------------------------------------------------------------------------------------------------------------------
98th percentile ([micro]g/m\3\)
---------------------------------------------------------------
Local site name Site location AQS ID 2020-2022 24-
2020 2021 2022 ** hour Design
Value **
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hurst Road *.............................. 3288 Hurst Road, North Pole. 02-090-0035 71.4 65.5 72.5 70
A Street.................................. 397 Hamilton Ave, Fairbanks. 02-090-0040 36.1 *** 29.6 *** 84.2 50
NCore..................................... 809 Pioneer Road, Fairbanks. 02-090-0034 26.6 27.5 76.3 43
---------------------------------------------------------------
State Office Building..................... 675 7th Avenue, Fairbanks... 02-090-0010 Site closed in 2019, monitor equipment relocated to A Street
location.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Monitor location previously referred to as North Pole Fire Station.
** Data in this table includes monitor days in 2022 that the state flagged as influenced by wildfires.
*** Monitor data in 2021 and 2022 impacted by data completeness issues.
Source: EPA 2022 AQS Design Value Report.
1. Comments and Responses
Comment: As noted in the prior paragraphs of this preamble, in the
context of commenting on environmental justice concerns in the
Fairbanks PM2.5 Nonattainment Area, a commenter questioned
the adequacy of monitoring in the area. The commenter stated that the
environmental justice concerns highlight the need for more Federal
Reference Monitors (FRM) in the Fairbanks PM2.5
Nonattainment Area. Specifically, the commenter states that three
monitors are insufficient for the nonattainment area, that Alaska
should reestablish the State Office Building monitoring site, and
establish additional sites, including in the Bjerremark neighborhood.
Response: As stated in Section II.B of this preamble, the EPA is
finalizing action on the Fairbanks Serious Plan and Fairbanks 189(d)
Plan based on a determination of whether these plans meet applicable
CAA requirements. Regarding the adequacy of the existing monitoring
network, the EPA's review and approval of Alaska's PM2.5
monitoring network for the Fairbanks 2006 PM2.5
Nonattainment Area is outside the scope of this action. The EPA
separately evaluates the adequacy of the State's monitoring network in
the context of the Annual Monitoring Network Plans (ANP) developed and
submitted by the State to the EPA pursuant to 40 CFR part 58, or in the
context of an Infrastructure SIP submission for a new or revised NAAQS.
The commenter specifically questioned the State's decision to shut
down the State Office Building monitor location and to relocate the
monitor to the A Street monitor location. Alaska documented the basis
for this change and requested the site relocation in a letter to the
EPA dated May 15, 2019, per 40 CFR 58.14(b). The EPA approved the
relocation of the State Office Building monitoring site to A Street and
the establishment of the A Street station as a SLAMS station, including
the site relocation, as meeting the requirements of 40 CFR part 58,
Appendix D in a letter dated June 26, 2019.\18\ This network
modification was also documented in Alaska's 2019 ANP dated June 28,
2019,\19\ which the EPA approved on November 21, 2019. Prior to
submitting its 2019 ANP, Alaska offered a 32-day public comment period
starting on May 23, 2019, during which members of the public could
submit comments on the adequacy of the ANP.
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\18\ Letter from Debra Suzuki, EPA Region 10 Air Planning,
State/Tribal Coordination Branch to Barbara Trost, Alaska Department
of Environmental Conservation, Air Monitoring and Quality Assurance
Program, June 26, 2019, included in the docket for this action.
\19\ 2019 Annual Air Quality Monitoring Network Plan, Alaska
Department of Environmental Conservation, June 28, 2019, at p 33,
available at: https://dec.alaska.gov/air/air-monitoring/monitoring-plans.
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The EPA notes that 40 CFR part 58, Appendix D sets the minimum
monitoring network design criteria State ambient air networks must
meet. Alaska submitted their 2022 ANP on June 28, 2022.\20\ Prior to
submitting the 2022 ANP, Alaska held a 30-day public comment period. On
September 21, 2022, the EPA approved Alaska's 2022 ANP as meeting the
requirements of 40 CFR part 58, Appendix D. The EPA is not revisiting
its prior ANP approvals as part of this action. Most recently, Alaska
submitted its 2023 ANP on June 30, 2023. The 2023 ANP was available for
public comment from May 21-June 21, 2023. The EPA has 120 days to
review and approve Alaska's 2023 ANP. Neither the CAA nor 40 CFR part
58, Appendix D preclude the State from exceeding these minimum
requirements, including deploying
[[Page 84631]]
additional monitors beyond the minimum number required.
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\20\ 2022 Annual Air Quality Monitoring Network Plan, Alaska
Department of Environmental Conservation, Final Draft, June 28,
2022.
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If the commenter has specific concerns with the adequacy of the
monitoring network, then the appropriate place to raise these issues is
with the State during the public comment period for their next ANP.
State ANPs typically are posted for public comment annually in late May
to allow for a 30-day comment period before the ANP is due to the EPA
on July 1. States are required to include and address all comments in
their final ANP submission per 40 CFR 58.10(a)(1).
Comment: Several commenters raised concerns with the ambient air
monitors. Specifically, one commenter stated that monitors were sited
in the worst areas and not representative of air quality in the
Fairbanks PM2.5 Nonattainment Area. Other commenters
asserted that the monitors are outdated, inaccurate below negative 20
degrees Fahrenheit, and do not distinguish between
hydroxymethanesulfonate (HMS) from inorganic sulfate and organic mass
and PM2.5. These commenters stated this is creating problems
with monitors in the North Pole and Fairbanks portions of the
nonattainment area, respectively.
Response: As previously discussed, in this action, the EPA is
evaluating whether the Fairbanks Serious Plan and Fairbanks 189(d) Plan
meet applicable requirements for nonattainment plans. These commenters
raised concerns about the adequacy of the monitor network. The EPA's
review and approval of Alaska's PM2.5 monitoring network for
the Fairbanks PM2.5 Nonattainment Area is outside the scope
of this action. The EPA is finalizing action on the Fairbanks Serious
Plan and Fairbanks 189(d) Plan. These SIP submissions do not contain
Alaska's monitoring plans. Such monitoring plans are contained in
Alaska's ANP developed and submitted to the EPA pursuant to 40 CFR part
58. The EPA approved these monitoring network plans as meeting the
requirements of 40 CFR part 58,\21\ including that the monitoring
stations are representative of area-wide air quality and that Alaska
sited at least one monitoring station at neighborhood or larger scale
in an area of expected maximum concentration.\22\ Alaska also measures
SO2 at the Hurst Road site in North Pole, and speciated
PM2.5 at both Hurst Road and the Fairbanks National Core
multipollutant (NCore) monitoring station.
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\21\ 2022 Annual Air Quality Monitoring Network Plan, Alaska
Department of Environmental Conservation, Final Draft, June 28,
2022. Letter from Debra Suzuki, Manager Air Planning, State/Tribal
Coordination Branch, EPA Region 10, to Barbara Trost, Division of
Air Quality, Alaska Department of Environmental Conservation,
September 21, 2022.
\22\ See Section 4.7.1(b) of Appendix D to 40 CFR part 58.
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Table 2 of this preamble contains details on the make and model of
air samplers Alaska has deployed as part of the ambient air monitoring
network in the Fairbanks PM2.5 Nonattainment Area.
Table 2--Air Quality Samplers in the Fairbanks PM2.5 Nonattainment Area
------------------------------------------------------------------------
Monitoring station Air samplers
------------------------------------------------------------------------
NCore/Fairbanks 02-090-0034............ Thermo Scientific Sequential
Partisol 2025i (VSCC)-FRM.
Thermo Scientific Partisol
2000i (VSCC)-FRM.
A Street/Fairbanks 02-090-0040......... Thermo Scientific Sequential
Partisol 2025i (VSCC)-FRM.
Met One BAM 1020 (SCC) non-FEM.
Hurst Road/North Pole 02-090-0035...... 2 Thermo Scientific Sequential
Partisol 2025i (VSCC)-FRM.
Met One BAM 1020 (SCC) non-FEM.
------------------------------------------------------------------------
Although outside the scope of this action, and not relevant to the
action on these SIP submissions, the EPA notes that it has approved
each of these monitoring methods as meeting the FRM or Federal
Equivalent Method (FEM) pursuant to 40 CFR part 53.\23\ Furthermore,
Alaska performs the required quality assurance and quality control
measures pursuant to 40 CFR part 58, Appendix A.
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\23\ U.S. Environmental Protection Agency, Center for
Environmental Measurements & Modeling, Air Methods &
Characterization Division, List of Designated Reference and
Equivalent Methods, June 15, 2023, available at https://www.epa.gov/system/files/documents/2023-06/List_of_FRM_FEM_%20June%202023_Final.pdf.
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Scientific studies being conducted as part of the Alaskan Layered
Pollution and Chemical Analysis (ALPACA) research project being led by
the University of Alaska Fairbanks are expected to focus on state-of-
the-science measurements of Fairbanks air quality, including
measurements of HMS. The EPA will consider the results of peer-reviewed
journal articles from ALPACA studies that are relevant to Alaska's
future annual network plans or a future SIP submission for the
Fairbanks PM2.5 Nonattainment Area.
D. Clean Air Act Requirements for PM2.5 Serious Area Plans and Serious
PM2.5 Areas That Fail To Attain
1. Summary of Proposal
The Proposal contains a summary of the statutory and regulatory
requirements for Serious area plans for PM2.5 nonattainment
areas and requirements for CAA section 189(d) plans and will not be
restated here. In the Proposal, the EPA proposed combined requirements
for PM2.5 Serious areas and Serious areas that fail to
attain. Specifically, the EPA explained in the Proposal that the CAA
does not contain provisions that address precisely how a State should
meet all of the planning requirements for a Serious nonattainment area,
in the case where the area has already failed to attain the NAAQS by
the Serious area attainment date, but before the State has met all of
the planning requirements for Serious nonattainment areas. By
extension, the CAA does not account for potential conflicts between the
required plan provisions for Serious area plans and CAA section 189(d)
plans, particularly with respect to the attainment projected inventory,
attainment demonstration, reasonable further progress (RFP), and
quantitative milestone (QM) plan provisions. These elements are
required for all PM2.5 nonattainment plans and are dependent
on a single projected attainment date that complies with the statutory
requirements governing the area. Thus, in the event that a State is
obligated to submit both a Serious area plan and a CAA section 189(d)
plan, a conflict arises between the applicable attainment date by which
States should structure these plan provisions and against which the EPA
should evaluate them.
Accordingly, the EPA proposed that it should evaluate any
previously unmet Serious area plan requirements based on the current,
applicable attainment date for nonattainment areas subject to CAA
section 189(d), and not the original Serious area attainment date
December
[[Page 84632]]
31, 2019.\24\ In this instance, in the Fairbanks 189(d) Plan, the State
identified December 31, 2024, as the target attainment date that would
represent attainment as expeditiously as practicable. Thus, the EPA
proposed to evaluate the Fairbanks Serious Plan and Fairbanks 189(d)
Plan submissions based on the combined requirements included in Table 3
of this preamble (Table 2 in the Proposal).
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\24\ 86 FR 53150, September 24, 2021, at p. 53155. In accordance
with CAA section 172(a)(2) and 179(d) and 40 CFR 51.1004(a)(3),
``The projected attainment date for a Serious PM2.5
nonattainment area that failed to attain the PM2.5 NAAQS
by the applicable Serious area attainment date shall be as
expeditious as practicable, but no later than 5 years following the
effective date of the EPA's finding that the area failed to attain
by the original Serious area attainment date, except that the
Administrator may extend the attainment date to the extent the
Administrator deems appropriate, for a period no greater than 10
years from the effective date of the EPA's determination that the
area failed to attain, considering the severity of nonattainment and
the availability and feasibility of pollution control measures.''
\25\ 42 U.S.C. 7502(c)(3).
\26\ 42 U.S.C. 7502(c)(1).
\27\ 42 U.S.C. 7513a(b)(1)(B).
\28\ MSM is applicable if the EPA has previously granted an
extension of the attainment date under CAA section 188(e) for the
nonattainment area and NAAQS at issue. The EPA denied Alaska's
request to extend the Serious area attainment date for the Fairbanks
Serious Nonattainment Area.
\29\ 42 U.S.C. 7513a(d).
\30\ 42 U.S.C. 7513(c)(2) and 7513a(b)(1)(A).
\31\ 42 U.S.C. 7502(c)(2).
\32\ 42 U.S.C. 7513a(c).
\33\ 42 U.S.C. 7513a(e).
\34\ 42 U.S.C. 7502(c)(9).
\35\ 42 U.S.C. 7502(c)(5), 7513a(b)(3), 7513a(d), and 7513a(e).
In the Proposal, the EPA inadvertently omitted reference to CAA
sections 172(c)(5), 189(d), and 189(e), 40 CFR 51.1003(b)(1)(viii),
and 40 CFR 51.1003(c)(1)(viii).
Table 3--Combined Fairbanks Serious Plan and Fairbanks 189(d) Plan
Requirements
------------------------------------------------------------------------
Description Legal/regulatory requirement
------------------------------------------------------------------------
CAA planning requirements for PM Serious Areas and Areas That Fail To
Attain
------------------------------------------------------------------------
Base year emissions inventory for CAA section 172(c)(3); \25\ 40
Serious areas subject to CAA section CFR 51.1008(b)(1).
189(b) *.
Base year emissions inventory for areas CAA section 172(c)(3); 40 CFR
subject to CAA section 189(d). 51.1008(c)(1).
Attainment projected emissions inventory CAA section 172(c)(1); \26\ 40
CFR 51.1008(c)(2).
Serious area nonattainment plan control CAA section 189(b)(1)(B); \27\
strategy that ensures that best 40 CFR 51.1010(a).
available control measures (BACM),
including best available control
technologies (BACT), for the control of
direct PM2.5 and PM2.5 precursors are
implemented in the area.
Additional measures (beyond those CAA section 189(d); \29\ 40
already adopted in previous CFR 51.1010(c).
nonattainment plan SIP submissions for
the area as RACM/RACT, BACM/BACT, and
MSM \28\ (if applicable)) that provide
for attainment of the NAAQS as
expeditiously as practicable and, from
the date of such submission until
attainment, demonstrate that the plan
will at a minimum achieve an annual
five percent reduction in emission of
direct PM2.5 or any PM2.5 plan
precursor. The State must reconsider
and reassess any measures previously
rejected by the State during the
development of any Moderate area or
Serious area attainment plan control
strategy for the area.
Attainment demonstration and modeling... CAA sections 188(c)(2) and
189(b)(1)(A); \30\ 40 CFR
51.1003(c) and 51.1011.
Reasonable further progress (RFP) CAA section 172(c)(2); \31\ 40
provisions. CFR 51.1012.
Quantitative milestones................. CAA section 189(c); \32\ 40
CFR 51.1013.
An adequate evaluation by the State of CAA section 189(e); \33\ 40
sources of all four PM2.5 precursors CFR 51.1006.
for regulation, and implementation of
controls on all such precursors, unless
the State provides a demonstration
establishing that it is either not
necessary to regulate a particular
precursor in the nonattainment area at
issue in order to attain by the
attainment date, or that emissions of
the precursor do not make a significant
contribution to PM2.5 levels that
exceed the standard **.
Contingency measures applicable to CAA section 172(c)(9); \34\ 40
Serious areas subject to CAA section CFR 51.1014.
189(b).
Contingency measures applicable to CAA section 172(c)(9); 40 CFR
Serious areas subject to CAA section 51.1014.
189(d).
Nonattainment new source review CAA sections 172(c)(5),
provisions. 189(b)(3), 189(d), and
189(e), and 40 CFR 51.165 40
CFR 51.1003(b)(1)(viii), and
40 CFR
51.1003(c)(1)(viii).\35\
------------------------------------------------------------------------
* EPA finalized approval of this requirement on September 24, 2021 (86
FR 52997).
** EPA finalized approval of this requirement applicable to Serious
areas subject to CAA section 189(b) on September 24, 2021 (86 FR
52997).
2. Final Rule
The EPA is finalizing the approach to evaluating the Fairbanks
Serious Plan and Fairbanks 189(d) Plan submissions as proposed.
3. Comments and Responses
We received three comments regarding the proposed requirements. One
commenter agreed with the EPA's interpretation of the CAA with respect
to the attainment date. The second commenter opposed the EPA's
interpretation of the control strategy requirement for CAA section
189(d) areas. The final commenter opposed the EPA's statutory and
constitutional authority to regulate air quality in the State of
Alaska.
Comment: In its comment, Alaska stated that because CAA section
189(d) does not itself supply a specific attainment date for CAA
section 189(d) areas, the EPA interprets the CAA to impose the
attainment date requirements of CAA sections 172 and 179, and as
interpreted in 40 CFR 51.1004(a)(3), rather than the date imposed in
CAA section 188(c)(2),\36\ and as interpreted in 40 CFR 51.1004(a)(2).
Alaska agrees with the EPA's interpretation of the CAA and that
51.1004(a)(3) applies, which provides for 5 years past the finding of
failure to attain for the Serious area and may be extended up to 10
years if deemed appropriate by the Administrator.
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\36\ The EPA understands the intended reference here to be CAA
section 172(c).
---------------------------------------------------------------------------
Response: The EPA agrees with Alaska that the attainment date for
the Fairbanks PM2.5 nonattainment area is governed by CAA
sections 172 and 179 and 40 CFR 51.1004(a)(3), which require that the
new attainment date must be as expeditious as practicable, but no later
than five years from the date of publication in the Federal Register of
the EPA's determination that the area failed to attain the relevant
NAAQS. In addition, the EPA may extend the attainment date by up to
five additional years (thus up to 10 years from the date of publication
of the notice of finding of failure to attain by the applicable
attainment date for the area) if the EPA deems it appropriate
``considering the severity of nonattainment and the availability and
feasibility of pollution control measures.''
The EPA notes that any extension to the attainment date pursuant to
CAA section 172(a)(2)(A) must be predicated on a SIP submission that
demonstrates that attainment within five years from
[[Page 84633]]
the date of publication in the Federal Register of the EPA's
determination that the area failed to attain the relevant NAAQS is
infeasible and identifies the most expeditious date by which attainment
is feasible considering the severity of nonattainment and the
availability and feasibility of pollution control measures. Absent such
a SIP submission, the EPA does not have a basis to extend the
attainment date nor to identify the most expeditious attainment date.
Comment: Another commenter disagreed with the EPA's determination
that Alaska did not need to identify, adopt, and implement MSM as part
of the Fairbanks Serious Plan or Fairbanks 189(d) Plan. The commenter
stated that the EPA determined that MSM is not applicable to the
Serious Plan or the 189(d) plan because MSM ``is applicable if the EPA
has previously granted an extension of the attainment date under CAA
section 188(e)'' and ``EPA denied Alaska's [previous] request to extend
the Serious area attainment date.'' However, the commenter stated that
CAA section 188(e) provides that Alaska must demonstrate that its SIP
includes MSM before an extension may be granted, not if an extension
has been ``previously granted.'' The commenter asserted that an
approval of the Fairbanks Serious Plan under a 2024 attainment date
would amount to a de facto extension of the attainment date, and that
MSM should be applicable to the parts of the SIP submission being
evaluated under Serious SIP requirements.
Response: The EPA disagrees with the commenter that the State is
required to identify, adopt, and implement MSM under these
circumstances. In accordance with CAA section 188(e) and 40 CFR
51.1005(b), upon application by the State, the EPA may extend the
attainment date for a Serious area beyond the date required by CAA
section 188(c)(2) and 40 CFR 51.1004 if, inter alia, the State
demonstrates that the attainment plan for the area includes MSMs that
are included in the attainment plan of any State or are achieved in
practice in any State, and can feasibly be implemented in the area.
Thus, identifying, adopting, and implementing MSM is a necessary
condition of the EPA granting an extension to the Serious area
attainment date under CAA section 188(e). MSM is not, however, an
independent requirement for all Serious area plans under CAA section
189(b), nor for all CAA section 189(d) plans.
The CAA provides for the scenario whereby the State either never
applies for an attainment date extension under CAA section 188(e), or
the State requests an extension but the EPA denies such request because
the State failed to meet the conditions in CAA section 188(e). If
either of these scenarios occur and the State fails to attain the 2006
24-hour PM2.5 NAAQS by the Serious area attainment date,
then the statutory consequence is that the State is subject to the
planning requirements of CAA section 189(d).\37\ A State would only
have to comply with the MSM requirements of CAA section 188(e) if the
State had sought, and the EPA had granted, an extension of the Serious
area attainment date and then failed to attain by that extended
attainment date.
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\37\ The PM2.5 SIP Requirements Rule at 40 CFR
51.1005(c) implements this statutory prescription, stating: ``If a
Serious area fails to attain a particular PM2.5 NAAQS by
the applicable Serious area attainment date, the area is then
subject to the requirements of section 189(d) of the Act, and, for
this reason, the state is prohibited from requesting an extension of
the applicable Serious area attainment date for such area.''
---------------------------------------------------------------------------
On September 2, 2020, the EPA determined that the Fairbanks
PM2.5 Nonattainment Area failed to attain by the Serious
area attainment date.\38\ As part of that same action, the EPA denied
Alaska's request to extend the Serious area attainment date under CAA
section 188(e). As a result of this action, the State became subject to
the requirements of CAA section 189(d). Neither CAA section 189(d) nor
the PM2.5 SIP Requirements Rule under these circumstances
require that the State SIP include MSM, unless the EPA previously
approved the State's request to extend the Serious area attainment date
under CAA section 188(e). The regulation at 40 CFR 51.1010(c)(2)(i)
provides that: ``For the sources and source categories represented in
the emission inventory for the nonattainment area, the state shall
identify the most stringent measures for reducing direct
PM2.5 and PM2.5 plan precursors adopted into any
SIP or used in practice to control emissions in any state, as
applicable.'' (Emphasis added). As made clear in the response to
comments to the PM2.5 SIP Requirements Rule, the EPA
included the phrase ``as applicable'' in this regulation to make clear
that a State is only required to identify and impose MSM if the EPA has
previously extended the Serious area attainment date.\39\ Thus, the
requirement to identify, adopt, and implement MSM as part of the
control strategy for this NAAQS does not apply to the Fairbanks
PM2.5 Nonattainment Area.\40\
---------------------------------------------------------------------------
\38\ Determination of Failure To Attain by the Attainment Date
and Denial of Serious Area Attainment Date Extension Request; AK:
Fairbanks North Star Borough 2006 24-Hour Fine Particulate Matter
Serious Nonattainment Area, 85 FR 54509, September 2, 2020.
\39\ ``In the event the area previously had received an
extension of the Serious area attainment date pursuant to section
188(e), the reevaluation of control measures referenced in section
51.1010(c)(2) should include a reevaluation of MSM. (For this
reason, section 51.1010(c)(2)(i) refers to the reevaluation of MSM
``as applicable.'') If, however, the area did not previously request
and receive an extension of the Serious area attainment date under
section 188(e), the MSM requirement does not apply.'' Response to
Comments on the Fine Particulate Matter National Ambient Air Quality
Standards: State Implementation Plan Requirements, July 29, 2016,
Docket No. EPA-HQ-OAR-2013-0691-0145 at p. 155.
\40\ The EPA notes, however, that the state needs to consider
implementing MSMs as contingency measures.
---------------------------------------------------------------------------
Comment: One commenter questioned the Federal government's
authority generally and the EPA's authority and jurisdiction
specifically to regulate air quality in the State of Alaska. The
commenter stated that the Bill of Rights contains restrictions on the
Federal government's power and that the Tenth Amendment to the United
States Constitution states that the power not delegated to the United
States nor prohibited to the States are reserved to the States and the
people. The commenter further stated: ``There's nowhere in the
constitution that talks about a multitude of alphabet agencies the
Federal government has created, and you actually are the ones that are
in violation. You're talking about how we're in violation of your air
standards, but you're the agency that's in violation of our
constitutional limitations against you. You have no jurisdiction.
You're violating due process in separat[ion] of powers.''
Response: The EPA disagrees with the commenter that the Federal
government generally, and the EPA specifically, lack the authority to
regulate air quality in Alaska as in all other States. In the CAA,
Congress authorized the EPA to exercise numerous obligations related to
air quality, including establishing the NAAQS, designating areas that
fail to attain the NAAQS, and reviewing and approving or disapproving
State SIP submissions required to provide for attainment and
maintenance of the NAAQS.\41\ Congress also granted the EPA general
rulemaking authority to administer and implement the CAA.\42\ The
United States Supreme Court has acknowledged the Federal government's
and the EPA's authority to regulate national air quality in the manner
laid
[[Page 84634]]
out in the Clean Air Act.\43\ Thus, the EPA has the statutory authority
and obligation to act on Alaska's SIP submissions for the Fairbanks
PM2.5 Nonattainment Area. Furthermore, the EPA's exercise of
such authority--either in general or specific to these Plans--is within
the Federal government's constitutional authorities and does not
violate any individual constitutional or civil rights.
---------------------------------------------------------------------------
\41\ CAA sections 107, 109, 110, 171-192, 42 U.S.C. 7407, 7409,
7410, 7501-4514a; see also Sierra Club v. EPA, 671 F.3d 955, 958-959
(9th Cir. 2012).
\42\ CAA section 301(a), 42 U.S.C. 7601(a) (``The Administrator
is authorized to prescribe such regulations as are necessary to
carry out his functions under this chapter.'').
\43\ Train v. Nat'l Resources Def. Council, Inc., 421 U.S. 60,
64-65 (1975) (``[The 1970 Clean Air Act] Amendments sharply
increased Federal authority and responsibility in the continuing
effort to combat air pollution.''); Union Elec. Co. v. EPA, 427 U.S.
246, 249-250 (1976) (``[T]he Amendments reflect congressional
dissatisfaction with the progress of existing air pollution programs
and a determination to ``tak(e) a stick to the States,'' in order to
guarantee the prompt attainment and maintenance of specified air
quality standards. The heart of the Amendments is the requirement
that each State formulate, subject to EPA approval, an
implementation plan designed to achieve national primary ambient air
quality standards those necessary to protect the public health.'').
---------------------------------------------------------------------------
E. Review of the Fairbanks Serious Plan and Fairbanks 189(d) Plan
1. Emission Inventories
i. Summary of Proposal
The EPA proposed to approve the 2019 base year emissions inventory
on the basis that it met the requirements of CAA section 172(c)(3) and
40 CFR 51.1008. The EPA stated that calendar year 2019 was an
appropriate base year for the Fairbanks 189(d) Plan because it was one
of the three years for which the EPA used monitored data to determine
that the area failed to attain the PM2.5 NAAQS by the
applicable Serious area attainment date.\44\ The base year emissions
inventory was a seasonal inventory, based on two historical
meteorological episodes judged by the EPA to be representative of the
range of meteorological conditions that lead to exceedances of the 24-
hour NAAQS. This was an appropriate temporal scope for a base year
emissions inventory. Exceedances of the 24-hour NAAQS, other than those
exceedances attributable to non-anthropogenic emissions, occur
primarily in the colder months during fall, winter, and spring when
home heating sources are widely used. The State provided a
justification that for purposes of the emissions inventory, the
baseline emissions inventory season should be from October 1 to March
31, and the EPA agrees with this.
---------------------------------------------------------------------------
\44\ 85 FR 54509, September 2, 2020.
---------------------------------------------------------------------------
The EPA proposed to disapprove the projected emissions inventory on
the basis that the Fairbanks 189(d) Plan did not satisfy the
requirement of 40 CFR 51.1008(c)(2) regarding an attainment projected
emission inventory for the most expeditious attainment date. The
Fairbanks 189(d) Plan contained an attainment projected emissions
inventory, and Alaska projected attainment by December 31, 2024. The
EPA noted that the control strategy does not contain all required
control measures. Therefore, the attainment projected emissions
inventory does not necessarily take into consideration all required
emissions reductions. Because the State did not properly evaluate and
adopt control measures for all relevant source categories and
pollutants, it was neither possible nor appropriate to determine that
the projected emission inventory was consistent with the level of
emissions needed to meet the overarching requirement for attainment of
the NAAQS in the area as expeditiously as practicable. We do note that
on September 25, 2023, Alaska withdrew is SO2 BACT
determinations and analysis for major stationary sources in the
Fairbanks PM2.5 Nonattainment Area.\45\
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\45\ ``Fairbanks SIP submissions for the Serious area and 189(d)
plans'' Letter from Emma Pokon, Acting Commissioner, Alaska
Department of Environmental Conservation, to Casey Sixkiller,
Regional Administrator, EPA Region 10, September 25, 2023. Included
in the docket for this action.
---------------------------------------------------------------------------
In addition, the EPA observed that Alaska's proposed attainment
date of 2024 is predicated on a modeling platform that is in need of
improvement, including development of a quantitative performance
evaluation for the Hurst Road monitor in North Pole that is based on
recent meteorological episodes and PM2.5 speciation data.
ii. Final Rule
The EPA is finalizing approval of the base year 2019 emission
inventory. The EPA is finalizing disapproval of the projected
attainment year emission inventory.
iii. Comments and Responses
Comment: Alaska stated that the EPA should avail itself of the
opportunity to incorporate new data with the modeling updates described
in Alaska's Technical Analysis Protocol which, until this year, were
unavailable. The State suggested that the cumulative effect of new data
combined with the extensive modeling updates will strengthen planning
documents, improve accuracy, and expedite attainment.
Response: The EPA's final action is based on the SIP submissions
before it. As discussed in section II.A of this preamble, the EPA has a
mandatory duty to approve, disapprove, or conditionally approve the
Fairbanks Serious Plan and Fairbanks 189(d) Plan. Alaska intended these
submissions to meet applicable CAA requirements for Serious areas and
Serious areas that fail to attain by the Serious area attainment date.
Within these SIP submissions, Alaska based the attainment projected
emissions inventories and modeled attainment demonstrations on the 2008
episodes. Alaska thus represented that these episodes met CAA
requirements for the attainment projected inventory.
The EPA is disapproving the attainment projected emissions
inventory and modeled attainment demonstration in the Fairbanks 189(d)
Plan for the reasons stated in the Proposal and in this final action.
To the extent that the State elects to incorporate new data and new
modeling updates in a subsequent SIP submission, it may do so. The EPA
anticipates that the State will make a new SIP submission to address
the deficiencies that required disapproval in this action. The EPA
notes that CAA sections 110 and 179 provide a process whereby States
may rectify disapprovals through a subsequent SIP submission and
thereby avoid the potential for mandatory sanctions and a FIP. To that
end, the EPA has been coordinating with Alaska on the monitoring and
modeling analyses described by the State. The EPA will review the
modeled attainment demonstration, and the associated attainment
projected emission inventory, as updated by the State in subsequent SIP
submissions for compliance with applicable requirements.
Comment: GVEA stated that the trends and changing nature of
residential wood combustion need further attention. GVEA noted that
both the availability and projected demand for dried wood need to be
solidly developed and included in the projected emissions inventory.
GVEA stated that since residential wood combustion is demonstrated to
be an important contributor to PM2.5 concentrations in the
Fairbanks PM2.5 Nonattainment Area, that trend and
associated emissions reductions need to be assessed and included in a
robust modeling analysis that demonstrates compliance with the
PM2.5 Ambient Air Quality Standards.
Response: The EPA agrees with GVEA that usage of residential wood
combustion and the availability of dry wood are key factors that the
State needs to consider in an updated assessment of control measures
and expeditious attainment. We do note that Aurora Energy has
established one dry wood kiln in Fairbanks (using the waste heat from
the Chena Power Plant) with plans to expand operations. Ultimately,
[[Page 84635]]
we anticipate that as part of a subsequent SIP submission, Alaska will
evaluate the contributions of emissions from the solid fuel burning
source category and evaluate the various emission reductions
attributable to the suite of control measures, including the dry wood
requirements.
Comment: A number of commenters stated that much of the pollution
in Fairbanks comes from overseas from countries such as Russia and
China.
Response: International contributions to air quality in the
Fairbanks PM2.5 Nonattainment Area are part of the boundary
conditions input to the photochemical model that is used to evaluate
relevant sources. Neither the State nor the EPA have identified a
significant contribution from overseas emissions to ambient
PM2.5 levels in the area. Absent further evidence, the EPA
will continue to assess the impacts of sources of emissions in the
area, and control requirements for those sources, as identified in
Alaska's analysis.
2. Pollutants Addressed
i. Summary of Proposal
Alaska submitted as part of the Fairbanks 189(d) Plan comprehensive
precursor demonstrations for existing sources of NOX and VOC
emissions. Alaska did not submit a precursor determination for existing
sources of SO2 and NH3 emissions.\46\ Moreover,
Alaska did not submit a nonattainment new source review (NNSR)
precursor demonstration for any PM2.5 precursor. Alaska
regulates all PM2.5 precursors under its NNSR program. The
EPA approved Alaska's NNSR program on August 29, 2019 (84 FR 45419). In
the Proposal, the EPA evaluated the State's precursor demonstration
included in the Fairbanks 189(d) Plan consistent with the
PM2.5 SIP Requirements Rule and the recommendations in the
May 30, 2019, PM2.5 Precursor Demonstration Guidance.\47\
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\46\ According to Alaska, there is a negligible amount of
NH3 associated with coal-fired boilers, fuel oil-fired
turbines or diesel engine emissions and this amount is not in the
emissions inventory. See State Air Quality Control Plan, Vol. II,
Chapter III.D.7.7.8.1.
\47\ Memorandum from Scott Mathias, Acting Director, Air Quality
Policy Division and Richard Wayland, Director, Air Quality
Assessment Division, to Regional Air Division Directors, Regions 1--
10, Fine Particulate Matter (PM2.5) Precursor
Demonstration Guidance, May 30, 2019.
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The EPA proposed to approve the State's demonstration that
NOX and VOC emissions do not contribute significantly to
ambient PM2.5 levels that exceed the 2006 24-hour
PM2.5 NAAQS in the Fairbanks PM2.5 Nonattainment
Area for purposes other than nonattainment new source review (NNSR)
program requirements. As a result, Alaska would not be required to
identify and impose control measures for NOX and VOC
emission sources in Fairbanks, other than for NNSR purposes. Likewise,
the State would not be required to impose motor vehicle emission
budgets for NOX and VOC emissions.
The EPA noted that the concentration-based modeling analysis of VOC
emissions demonstrates that anthropogenic VOCs have impacts on
PM2.5 concentrations in the Fairbanks PM2.5
Nonattainment Area that are well below the 1.5 microgram per cubic
meter ([micro]g/m\3\) significance threshold. The EPA also proposed
that the weight of evidence presented in the Fairbanks Serious Plan and
Fairbanks 189(d) Plan suggested that NOX emitted from all
sources is an insignificant contributor to local PM2.5
concentrations.
ii. Final Rule
The EPA is finalizing approval of Alaska's PM2.5
precursor demonstrations for NOX and VOC emissions included
in the Fairbanks Serious and 189(d) Plans. The EPA reiterates that
Alaska did not submit a precursor determination for SO2 and
NH3 emissions, which remain subject to control requirements
under subparts 1 and 4 of part D, title I of the Act. Similarly, Alaska
did not submit NNSR precursor demonstrations. Thus, consistent with its
approved SIP, the State will continue to regulate NOX,
SO2, VOCs, and NH3 as precursors to
PM2.5 with respect to NNSR program requirements.
iii. Comments and Responses
Comment: Citizens for Clean Air, a project of Alaska Community
Action on Toxics, and the Sierra Club Alaska Chapter commented that
each day, 15.73 tons of NOX are emitted in Fairbanks. These
compounds are ``precursors'' that undergo chemical reactions to form
PM2.5. In September 2021, the EPA approved Alaska's 2019
precursor demonstrations for VOCs and NOX, finding that
Alaska had sufficiently demonstrated that VOCs and NOX do
not significantly contribute to the PM2.5 problem in
Fairbanks. To meet its CAA section 189(d) obligations, the State
submitted an updated precursor analysis in 2020. This updated analysis
included one new NOX model run, and Earthjustice noted that
the EPA proposed to find that the weight of evidence suggested that
NOX emitted from all sources is an insignificant contributor
to local PM2.5 concentrations.
The commenters disagreed with the EPA's approval of Alaska's new
NOX model run as satisfying precursor demonstration
requirements for the purposes of CAA 189(d). The commenters noted that
this modeling consisted of ``a 50% knock-out quantitative analysis''
for NOX emissions. Of note, when the State uses the
terminology ``50% knock-out'' analysis, they are referring to a
modeling evaluation where a model run that includes all emission
sources in the nonattainment area (a baseline model run) is compared to
a model run where 50% of the NOX emissions from
anthropogenic sources in the nonattainment area have been removed.
Based on this modeling, the State demonstrated that ``the maximum 24-
hour average PM2.5 concentrations due to anthropogenic
NOX emissions were <= 1.22 [mu]g/m\3\ in 2019 for all model
grid cells containing regulatory monitors, and therefore were below the
1.5 [mu]g/m\3\ threshold.'' However, the commenter noted that the EPA's
Precursor Demonstration Guidance recommends ``modeling reductions of
30-70 percent'' for such sensitivity analyses. Earthjustice questioned
why, when a 50% knock-out analysis showed concentration results up to
1.22 [mu]g/m\3\--approaching the 1.5 [mu]g/m\3\ threshold--it was not
appropriate to require a 70% knock-out analysis, or an emissions
control analysis to support the demonstration. The commenters noted
that the State has previously run 75% knock-out demonstrations, and
there is no adequate justification for its choice not to run a 70-75%
knock-out demonstration as part of the Fairbanks 189(d) Plan. The
commenters concluded that the EPA should require Alaska to better
justify its rejection of the need to regulate NOX.
Response: While the State only completed one new model run (a run
with a 50% reduction of NOX emissions from anthropogenic
sources) for the precursor demonstration in the Fairbanks 189(d) Plan,
the EPA also considered the NOX precursor model runs from
the Fairbanks Serious Plan when evaluating the NOX precursor
demonstration. The State decided it did not need to re-run all of the
Fairbanks Serious Plan precursor demonstration model runs because there
were not significant changes in emissions or air quality in the
Fairbanks PM2.5 Nonattainment Area or to the modeling
platform between the Fairbanks Serious Plan and the Fairbanks 189(d)
Plan. When evaluating the NOX precursor demonstration
submitted by the State, the EPA reviewed several model runs,
[[Page 84636]]
focusing on both the average and maximum modeled PM2.5
concentrations.
First, a major source precursor analysis where a baseline model run
was compared to a control model run with a 100% reduction of
NOX emissions from major stationary sources (presented in
the Fairbanks Serious Plan).
Second, a comprehensive precursor analysis where a baseline model
run was compared to a control model run with a 100% reduction of
NOX emissions from anthropogenic sources (presented in the
Fairbanks Serious Plan).
Third, a sensitivity precursor analysis where a baseline model run
was compared to a control model run with a 75% reduction of
NOX emissions from anthropogenic sources (presented in the
Fairbanks Serious Plan).
Fourth, a sensitivity precursor analysis where a baseline model run
was compared to a control model run with a 50% reduction of
NOX emissions from anthropogenic sources (presented in the
Fairbanks 189(d) Plan and referenced by the commenter).
In addition, the EPA reviewed supplementary information related to
the model runs (e.g., changes in emissions inventories between 2013 and
2019, which were the two years used for the precursor model runs). The
EPA also considered source apportionment analyses that have been
conducted for the Fairbanks area (Kotchenruther, 2016; Ward, 2013).\48\
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\48\ Kotchenruther (2016). Source apportionment of
PM2.5 at multiple Northwest U.S. sites: Assessing
regional winter wood smoke impacts from residential wood combustion.
Atmospheric Environment, 142, 210-219. Available at: https://doi.org/10.1016/j.atmosenv.2016.07.048. Ward (2013). The Fairbanks,
Alaska PM2.5 Source Apportionment Research Study Winters
2005/2006-2012/2013, and Summer 2012. University of Montana-Missoula
Center for Environmental Health Sciences. Available at: https://dec.alaska.gov/air/anpms/communities/fbks-pm2-5-science/.
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Based on all of these data sources, the EPA agrees with the State
that NOX is not a significant contributor to
PM2.5 measured in the nonattainment area.
3. Control Strategy
Alaska submitted as part of the Fairbanks Serious Plan BACM and
BACT analyses intended to identify and evaluate potential BACM and BACT
controls for the stationary area sources and source categories,
stationary point sources, and mobile sources in the baseline emissions
inventory. Alaska submitted an update to the analysis of control
measures for stationary area sources and mobile sources in the
Fairbanks 189(d) Plan. Alaska did not update the analysis for
stationary point sources, including major stationary sources.
The EPA proposed to approve Alaska's determination that there are
no specific NH3 emission controls for the major stationary
or area sources or source categories in the baseline emissions
inventory discussed in section II.E.2 of this preamble and that certain
measures designed to reduce direct PM2.5 emissions also
reduce NH3 emissions. Thus, the EPA proposed to determine
that Alaska has satisfied the requirement to identify, adopt and
implement BACM and BACT for the sources and source categories of
NH3 discussed in section II.E.2 of this preamble. Thus, the
EPA proposed to determine that no additional controls of NH3
are required to meet the BACM or BACT requirements for these specific
source categories for the Fairbanks Serious Plan or the Fairbanks
189(d) Plan. The EPA also proposed to approve the State's SIP
submissions with respect to BACM and BACT requirements for pot burners,
fuel oil boilers, incinerators, and portions of the solid fuel heating
device and mobile emission source categories. The EPA proposed to
disapprove the State's SIP submissions with respect to BACM and BACT
requirements for wood seller requirements, coal-fired heating devices,
coffee roasters, charbroilers, used oil burners, weatherization and
energy efficiency, oil-fired heating devices, and portions of the
mobile emission source category.
The EPA is finalizing partial approval of portions of Alaska's BACM
and BACT analyses and associated adopted and submitted rules to impose
the control measures, as described in table 4 of this preamble. The EPA
is finalizing approval of the BACM and BACT analysis for which the EPA
proposed approval, including Alaska's BACM determinations for
NH3 controls. Based on comments, the EPA is also finalizing
approval of certain portions of Alaska's supplemental BACM and BACT
analysis for stationary areas sources and mobile sources, as explained
further in section II.E.3 of this preamble. Alaska submitted comments
on the Proposal that provided additional analysis to demonstrate that
that potential control measures for certain source categories are
either technologically or economically infeasible at this time.
Measures that the EPA agrees are infeasible in the area at this time
include: an ultra-low sulfur diesel (ULSD) requirement for residential
and commercial fuel oil combustion; controls on charbroilers and used
oil burners; and certain transportation measures. The EPA is finalizing
disapproval of the remaining portions of Alaska's BACM analysis and
adopted rules as proposed. Table 4 of this preamble provides an
overview of the final action.
Table 4--Summary of the EPA's Final Evaluation of Alaska's BACM and BACT Analysis for Stationary Areas Sources
and Mobile Sources
----------------------------------------------------------------------------------------------------------------
Specific BACM
Emissions source category EPA evaluation of specific State rules relevant measures, as
BACM measures to adopted BACM identified by Alaska
----------------------------------------------------------------------------------------------------------------
Solid fuel burning................. Approve: wood-fired heating 18 AAC 50.075, except BACM Measures: 1-30,
device requirements and (d)(2); 18 AAC 33-47, 63, 65-66, R1,
resulting emissions. 50.077, except (g) R4-R7, R9-R12, R15,
and (q). R16-R17, R29.
Disapprove: Wood seller/dry 18 AAC 50.076(k); 18 BACM Measures: 31-32;
wood requirements; coal- AAC 50.079(d), (e), 48-49.
fired heating devices. and (f).
Residential and commercial fuel oil Approve: pot burners, waste 18 AAC 50.078(b)...... BACM Measures: 51, 52-
combustion. oil; fuel oil boilers; 53, 61-62.
ULSD as heating oil
(economically infeasible).
Small commercial area sources...... Approve: incinerators (no 18 AAC 50.078(c)...... BACM Measures: 68-70.
sources identified);
charbroilers (economically
infeasible); used oil
burners (economically
infeasible).
Disapprove: coffee roasters 18 AAC 50.078(d)...... BACM Measure: 67.
Energy efficiency measures......... Disapprove: weatherization ...................... BACM Measure: 64.
and energy efficiency.
Emissions from mobile sources...... Approve: CARB standards; ...................... BACM Measures: 54-59,
school bus retrofits; road 60 (in part), R20.
paving; other
transportation measures;
vehicle idling- heavy-duty
vehicles (economically
infeasible).
[[Page 84637]]
Disapprove: light-duty ...................... BACM Measure: 60 (in
vehicle idling at schools part).
and commercial
establishments.
----------------------------------------------------------------------------------------------------------------
i. Solid Fuel Burning
a. Summary of Proposal
The solid fuel burning source category includes a number of
measures that the State adopted as part of the Fairbanks Serious Plan
and relied on in the Fairbanks 189(d) Plan. These measures address
direct PM2.5, SO2, and NH3 emissions.
Alaska adopted a number of regulations based on the BACM review for
this source category.\49\ We proposed to find that Alaska's analysis
and adoption of control measures for this source category meet BACM and
BACT requirements for PM2.5 and SO2 emissions. We
also proposed to approve Alaska's analysis that found no available
controls that specifically reduce NH3.\50\ We noted that the
EPA has previously approved as federally enforceable SIP-strengthening
many of the control measures submitted as part of the Fairbanks Serious
Plan and prior SIP submissions in 2018 as part of a separate action (86
FR 52997, September 24, 2021).
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\49\ Alaska state regulations 18 AAC 50.075 (e)(3), (f)(2); 18
AAC 50.076 (d)-(e), (g), (j)-(l); 18 AAC 50.077(a)-(m); 18 AAC
50.078(b); 18 AAC 50.079(f).
\50\ Note that the EPA inadvertently indicated that it proposed
to disapprove the Fairbanks Serious Plan and Fairbanks 189(d) Plan
as not meeting BACT requirements for NH3 in Section V of
the Proposal. This was in error. The EPA made clear in the preamble
to the Proposal that it was proposing to approve Alaska's
determinations that no NH3 controls existed for each of
the stationary sources listed.
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We noted that Alaska's two-stage woodstove curtailment program,
included in the Fairbanks Emergency Episode Plan,\51\ is at least as
stringent as comparable curtailment programs in Idaho, Utah, and
California. Alaska accounts for the differences in natural gas
availability, seasonal climate conditions, and woodstove changeout
incentives in establishing the two-stage thresholds at 20 [micro]g/m\3\
(Stage 1) and 30 [micro]g/m\3\ (Stage 2), respectively. Alaska also has
an advisory level set at 15 [micro]g/m\3\ as part of the curtailment
program. Alaska has placed further limitations on the No Other Adequate
Source of Heat (NOASH) exemption waivers that limit applicability to
those who have economic needs based on objective criteria and limited
the number of years NOASH waivers are available. Therefore, we proposed
to approve the wood stove curtailment program and associated updates to
the NOASH waivers/temporary exemption as meeting the BACM requirement
for the solid fuel burning source category (i.e., Alaska State
regulations 18 AAC 50.075 (e)(3), (f)(2)) for the control of
PM2.5 and SO2 emissions.
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\51\ State Air Quality Control Plan, Vol. II, Chapter
III.D.7.12. This portion of Alaska's SIP is distinct from the
Alaska's emergency powers under Alaska Statutes 46.03.820 and 18 AAC
50.245-50.246 that authorize ADEC to declare an air alert, air
warning, or air advisory to notify the public and prescribe and
publicize curtailment action. In prior actions, the EPA has
determined that these authorities are consistent with CAA section
110(a)(2)(G) and 40 CFR 51.150 through 51.153. See 83 FR 60769,
November 27, 2018, at p. 60772.
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Alaska identified and evaluated as BACM the heating device
performance standards adopted previously by Missoula County,
Montana.\52\ Alaska adopted a regulation modeled after the rule in
Missoula County. Under 18 AAC 50.077(c), Alaska's regulations require
that woodstoves meet emissions standards that are more stringent than
the EPA's New Source Performance Standards (NSPS) requirement and also
include 1-hour testing requirements to ensure only the lowest-emitting
woodstoves are allowed to be sold and installed in the nonattainment
area. We proposed to find that Alaska adopted measures sufficient to
meet the BACM requirement for the solid fuel burning source category
(i.e., 18 AAC 50.077 (a-j) for PM2.5 and SO2
emissions.
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\52\ Missoula City-County Air Pollution Control Program, Rule
9.203(1)(a), available at: https://www.missoulacounty.us/government/health/health-department/administration/regulations-ordinances/air-pollution-control-program.
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Alaska's regulation 18 AAC 50.075(f), applicable to the Fairbanks
PM2.5 Nonattainment Area, prohibits the operation of a solid
fuel-fired heating device emissions when visible emissions exceed 20
percent opacity for more than six minutes in any one hour, except
during the first 15 minutes after initial firing of the device, when
the opacity limit must be less than 50 percent. The rule also prohibits
operation of the device such that visible emissions cross property
lines. These opacity limits provide a visual indicator for the proper
operation of a solid fuel heating device (for a discussion of the EPA's
SSM policy, see the Proposal). The EPA proposed to approve this measure
as BACM for this source category.\53\
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\53\ The regulation at 18 AAC 50.075(f)(2) specifies 40 CFR part
60, Appendix A, Method 22 as the monitoring method for determining
compliance with the visible emissions standard in 18 AAC
50.075(f)(1). One of the purposes of Method 22 is to determine
through visual observation the presence of smoke from a combustion
source. 40 CFR part 60, Appendix A-7 Method 22 at Section 1.0. Thus,
Method 22 is the appropriate monitoring method to ensure compliance
with this standard. The regulation does not prescribe mandatory
recordkeeping and reporting obligations. However, the EPA has
determined that this standard is enforceable as a practicable matter
without mandatory recordkeeping and reporting. The standard applies
to a multitude of area and point sources, most of which are owned by
individuals. Importantly, Method 22 observations can be made without
special training--thus enabling the owner and operator of the
source, Alaska, the EPA, and members of the public to readily
determine and enforce compliance without the need for recordkeeping
and reporting. See 40 CFR part 60, Appendix A-7 Method 22 at Section
2.3.
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The EPA proposed to approve and incorporate by reference Alaska's
rule 18 AAC 50.075(f) as BACM because it is a permanent and enforceable
measure that contributes to attainment of the 2006 PM2.5 24-
hour NAAQS. This provision includes limits on emissions that apply
during all modes of source operation and impose continuous emission
controls on solid fuel heating devices consistent with the requirements
of the CAA applicable to SIP provisions. In addition, the provision
supports progress toward attainment of the 2006 PM2.5 NAAQS
in the Fairbanks PM2.5 Nonattainment Area.
The EPA also proposed to find that the State's additional removal
or render inoperable restrictions placed on non-certified EPA
woodstoves, non-pellet outdoor hydronic heaters, coal-fired heating
devices, and EPA-certified woodstoves greater than 25 years old meet
BACM requirements for PM2.5 and SO2 emissions.
Owners of these devices will need to remove or render them inoperable
by December 31, 2024, or if a building or residence with such a device
is sold prior to that date (or if a woodfired heating device is 25
years old prior to that date).\54\ The EPA proposed to find that the
other solid fuel burning regulations adopted by Alaska,
[[Page 84638]]
including device registration under 18 AAC 50.077(h) and dry wood
requirements for wood sellers 18 AAC 50.076 represent BACM for
PM2.5 and SO2 emissions for the solid fuel
burning source category. These include Alaska State regulations 18 AAC
50.076 (d-e), (g), (j-l).
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\54\ State Air Quality Control Plan, 18 AAC 50.077 (l)-(m).
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The EPA proposed to disapprove revisions to 18 AAC 50.076(k) as
lacking sufficient monitoring to be enforceable as a practical matter
and thus meet BACM and BACT requirements. Likewise, the EPA proposed to
disapprove the regulations at 18 AAC 50.079(d), (e), and (f) that
impose a removal requirement on owners of coal-fired heating devices.
The EPA proposed to disapprove these regulations because 18 AAC
50.079(d) allows the owners to test out of the mandatory removal
requirements, 18 AAC 50.079(e) includes an unbounded waiver provision,
and 18 AAC 50.079(f) does not specify a process to confirm the device
was rendered inoperable.\55\
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\55\ Alaska ensures compliance with the installation and
conveyance restrictions and removal requirements via the
registration requirements in 18 AAC 50.077(h). The regulations
mandate certain recordkeeping and reporting obligations to ensure
the practical enforceability of the requirements and restrictions in
18 AAC 50.077.
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The regulations at 18 AAC 50.076(d)-(e) are registration
requirements for wood sellers, and thus are part of Alaska's overall
strategy with monitoring and recording compliance with the dry wood
requirements of 18 AAC 50.076. Alaska ensures compliance with 18 AAC
50.076(g) through moisture testing and documentation requirements. The
regulation at 18 AAC 50.076(l) prohibits non-commercial wood sellers
from selling wet wood in the Fairbanks PM2.5 Nonattainment
Area. Compliance with this prohibition is monitored and enforced
through the registration requirements in 18 AAC 50.076(d)-(e).
Collectively, the EPA proposed to find that Alaska met the BACM and
BACT requirements for the solid fuel burning source category for
PM2.5 and SO2 emissions. However, the proposed
approval excluded the dry wood requirements for wood sellers in 18 AAC
50.076(k) and coal-fired heating devices in 18 AAC 50.079(d), (e), and
(f), due to the lack of practical enforceability of the dry wood
requirement and the unbounded exemptions for the coal-fired heating
devices noted in section II.E.3.i.a of this preamble. The EPA also
proposed to approve Alaska's analysis that found no NH3-
specific emission controls for this source category.
b. Final Rule
The EPA is finalizing partial approval of the solid fuel device
heating requirements as BACM. The EPA is finalizing partial disapproval
of Alaska's measures regarding dry wood seller requirements and coal-
fired heating devices. The EPA recommends Alaska revise 18 AAC
50.076(k)(3) to require a specific frequency wood sellers are required
to measure the moisture content of the seller's wood stock. Likewise,
the EPA also recommends Alaska revise the regulations at 18 AAC
50.079(d), (e) and (f) to remove (or revise to BACM and BACT-level
stringency) the testing exemption in (d), remove or properly bound the
waiver provision in (e), and add requirements to verify compliance with
the requirement for the owner and operator to render the device
inoperative. Once Alaska submits a SIP revision resolving the
identified deficiencies, the EPA will evaluate whether the updated
rules meet BACM requirements.
c. Comments and Responses
Comment: Several commenters opposed the EPA's approval of the
State's control measures on solid fuel burning devices, specifically
wood-fired heating devices as meeting BACM requirements for this source
category. Specifically, several commenters expressed general concern
over restrictions on the sale and use of wood stoves. Other commenters
stated that the measures should include exemptions for the elderly,
people with financial difficulty, and people who only live in the
nonattainment area in the summer.
Response: Alaska adopted several restrictions and requirements for
the sale, distribution, and operation of solid fuel burning devices in
the Fairbanks Serious Plan and Fairbanks 189(d) Plan. Specifically, the
State has determined that it is appropriate to include restrictions on
the installation, reinstallation, sale, leasing, distribution, and
conveyance of solid fuel burning devices.\56\ Among other requirements
for this source category, the State has specified that only stoves that
meet certain emission standards may be sold, conveyed, or installed in
the nonattainment area.\57\
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\56\ 18 AAC 50.077(a)-(f).
\57\ Id.
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In addition, Alaska adopted a regulation that requires a person who
owns a woodstove or pellet stove that does not have a valid
certification from the EPA under 40 CFR 60.533 or a non-pellet fueled
wood-fired outdoor hydronic heater shall render the device inoperable
before December 31, 2024; or before the device is sold, leased, or
conveyed as part of an existing structure, whichever is earlier.\58\
---------------------------------------------------------------------------
\58\ 18 AAC 50.077(l).
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The EPA's position is that these, as well as other, measures are
necessary to control direct PM2.5 emissions and
SO2 emissions from the solid fuel heating device source
category. Alaska adopted these controls after determining that they are
technologically and economically feasible. As explained in the Proposal
and of this preamble, the EPA agrees with the State's determination
that these restrictions are appropriate and meet BACM requirements for
this source category.
These measures are a critical component of Alaska's overall
strategy to phase out older, more polluting wood stoves for liquid or
gas fired heating devices, or newer, cleaner-burning stoves. Adoption
of these controls was necessary to satisfy the BACM and BACT
requirements of the CAA and the overall requirement to achieve
attainment as expeditiously as practicable.
Comment: One commenter opposed the dry wood requirements as being
too costly.
Response: The EPA disagrees with the commenter that the dry wood
requirement is too costly or otherwise economically infeasible. Alaska
adopted a measure to mandate that users of wood-fired heating devices
only burn dry wood.\59\ Alaska also imposed requirements on commercial
wood sellers to ensure that they sell dry wood in the Fairbanks
PM2.5 Nonattainment Area.\60\ Alaska determined that these
measures were technologically and economically feasible. The EPA
concurs with this assessment. Absent a determination and supporting
documentation that these measures are infeasible, neither Alaska nor
the EPA have a basis to not adopt and implement these measures as
necessary components of the control strategy required by the CAA.
---------------------------------------------------------------------------
\59\ 18 AAC 50.076.
\60\ 18 AAC 50.076(g).
---------------------------------------------------------------------------
Comment: Several comments opposed the EPA's approval of the control
measures for solid fuel burning devices, arguing that Alaska should
instead ban all wood stoves in the nonattainment area.
Response: As part of development of the Fairbanks Serious Plan,
Alaska specifically assessed the feasibility of banning woodstoves all
together \61\ and the feasibility of banning woodstoves in
[[Page 84639]]
new construction.\62\ In both cases Alaska determined these bans were
not technologically or economically feasible. The EPA reviewed these
determinations and concurs with Alaska's determinations. The EPA agrees
with Alaska's determination that residents require the option of
heating their homes with wood--thus both bans are technologically
infeasible at this time. There are many residents whose only source of
heat in the winter is wood. Alaska and several commenters pointed out
that the area experiences power outages in the winter that necessitate
use of a space heating device that does not need electricity to
operate. While natural gas is available in the nonattainment area, and
access has increased in recent years, it remains significantly limited
across the nonattainment area.
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\61\ ADEC also reviewed this measure as part of development of
the Moderate Area Plan.
\62\ See State Air Quality Control Plan, Vol. III, Appendix
III.D.7.7-62.
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The EPA notes that, in lieu of woodstove bans, Alaska adopted a
suite of controls on solid fuel burning devices, including the
woodstove curtailment program.\63\ Under the curtailment program,
Alaska issues burn bans based on forecasted concentrations of
PM2.5. Once Alaska issues a burn ban, wood stove operators
must withhold fuel from wood stove devices (other than exempt devices)
and ensure that combustion has ceased within three hours of the
effective time of the declaration.\64\
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\63\ 18 AAC 50.075(e); 18 AAC 50.030(a); State Air Quality
Control Plan Vol. II, Chapter III.D.7.12.
\64\ 18 AAC 50.075(e)(3).
---------------------------------------------------------------------------
Comment: One commenter opposed the EPA's approval of the woodstove
curtailment program as meeting BACM requirements. The comment asserted
that the program cannot meet BACM requirements because Alaska does not
adequately enforce the program. According to the commenter, Alaska
estimated the compliance rate for the program in 2019 was 30 percent
and will achieve 45 percent by 2024. The commenter also stated that
meaningful enforcement could be accomplished by granting the Alaska
Department of Environmental Conservation citation authority. The
commenter also argued that Alaska's current ``three-strikes'' approach
to enforcement is ineffective and does not deter noncompliance.
Finally, the commenter argued that the EPA should not approve the
woodstove curtailment program as meeting BACM requirements without
further assurances from the State that it will practice meaningful
enforcement.
Response: The EPA disagrees with the commenter that the woodstove
curtailment program, as adopted via 18 AAC 50.075(e) and the Fairbanks
Emergency Episode Plan, does not meet the requirements for BACM for the
solid fuel burning emission source category. Consistent with 40 CFR
51.1010(a)(2), the State identified the curtailment program and
corresponding curtailment thresholds through surveying other NAAQS
nonattainment areas. In reflection of lower curtailment thresholds
adopted in other jurisdictions, the State lowered the curtailment
thresholds--making the measure more stringent than the measure
submitted as part of the Fairbanks PM2.5 Moderate area plan
(Fairbanks Moderate Plan) to meet RACM requirements.\65\ Thus, the
woodstove curtailment program meets the requirements as BACM for the
wood-fired heating device emission source category. Since adoption,
Alaska has employed a model to forecast days with high PM2.5
concentrations, regularly issued Stage 1 and Stage 2 alerts, monitored
compliance, and issued notices of noncompliance.\66\ Alaska issues
compliance letters, advisory letters, and Notice of Violation letters
each year. During the 2021-22 winter season, Alaska sent 136 compliance
or advisory letters.\67\ Thus, Alaska is implementing the measure.
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\65\ 82 FR 42457, September 8, 2017.
\66\ See Alaska Department of Environmental Conservation (ADEC)
Curtailment and Alerts in the Fairbanks North Star Borough
Nonattainment Area, available at https://dec.alaska.gov/air/anpms/communities/fbks-pm2-5-curtail-alert/. See also, State Air Quality
Control Plan Vol. II, Chapter III.D.7.12 Fairbanks Emergency Episode
Plan. See, e.g., Alaska Department of Environmental Conservation,
Division of Air Quality, FNSB Air Quality Stage 2 Alert, March 1,
2019 (included in Docket).
\67\ 2nd Annual Report, Air Quality Control Program
Implementation Status, Fairbanks North Star Borough PM2.5
Nonattainment Area, Alaska Department of Environmental Conservation
and Fairbanks North Star Borough, available at: https://dec.alaska.gov/air/anpms/communities/progress-annual-reports/.
---------------------------------------------------------------------------
With respect to compliance, the EPA understands the commenter's
concern that there is insufficient compliance and that compliance can
affect the effectiveness of a control measure. Alaska is likewise aware
of issues regarding compliance, and has taken steps to try to assure
better compliance. When assessing whether a specific control measure
meets BACM requirements, however, the EPA is evaluating whether the
measure as formulated meets applicable stringency requirements and
other requirements for SIP provisions, including that the measure is
legally and practically enforceable. A lack of total compliance (actual
or projected) does not necessarily disqualify a measure as BACM.
Concerns about compliance rates with the requirement are reflected in
other ways, such as in the amount of SIP emissions reduction credit the
State claims and the EPA provides for a given measure (e.g., a measure
with 50 percent compliance receives 50 percent credit towards other
requirements such as the attainment projected emissions inventory, RFP,
QMs, and the modeled attainment demonstration). In addition, consistent
with CAA section 110(a)(2)(C), States are required to have a program to
enforce SIP requirements. Similarly, the EPA determined that the State
met the requirements for CAA section 110(a)(2)(E) with respect to
adequacy of State legal authority, personnel, and resources need to
implement the SIP. The EPA determined that Alaska satisfied these
requirements in its latest approval of the State's PM2.5
infrastructure SIP submission.\68\ We note that a State's failure to
implement a control measure could be the basis for a finding under CAA
section 179 and that is likely the more appropriate authority to
address any failure to enforce SIP measures. The EPA has made no such
finding for Alaska, generally, nor the Fairbanks PM2.5
Nonattainment Area, specifically.
---------------------------------------------------------------------------
\68\ Air Plan Approval; AK: Fine Particulate Matter
Infrastructure Requirements, 83 FR 60769, November 27, 2018, at p.
60771.
---------------------------------------------------------------------------
Comment: One commenter questioned why use of electrostatic
precipitators (ESPs) is not part of the control strategy.
Response: Alaska and the Fairbanks North Star Borough (FNSB)
reviewed a requirement to install ESPs on woodstoves as part of its
BACM analysis in the Fairbanks Serious Plan.\69\ In the Fairbanks
Serious Plan, the State also included a summary of current ESP
requirements and the FSNB's research and assessment of the feasibility
of using ESPs.\70\ Ultimately, Alaska determined that requiring
installation of ESPs was technologically infeasible. In addition,
Alaska raised concerns that exempting persons who install ESPs from
having to comply with the curtailment program would be less stringent
than the current requirements.
---------------------------------------------------------------------------
\69\ State Air Quality Control Plan, Volume III, Appendix
III.D.7.07, at pp. 109-110, Adopted November 19, 2019.
\70\ State Air Quality Control Plan, Volume II, Chapter
III.D.7.07 at pp. 101-103, adopted November 19, 2019.
---------------------------------------------------------------------------
The EPA proposed to approve Alaska's determination that requiring
ESPs is not technologically feasible. The EPA is finalizing this
approval as proposed. Alaska's feasibility assessment identified
several technological challenges to
[[Page 84640]]
implementing the measure, including lack of professional installers,
lack of standard performance certification methods, frequent system
degradation, and frequent maintenance requirements from trained
professionals.\71\ The comment does not provide information to call
Alaska's assessment into question. Alaska and the FNSB may continue to
research the feasibility and efficacy of ESPs and potentially
incorporate a requirement to install and operate ESPs into a future
plan. Any future SIP revisions, however, must be consistent with CAA
section 110(l).
---------------------------------------------------------------------------
\71\ State Air Quality Control Plan Vol. III, Appendix III.D.7.7
at pp. 134-135.
---------------------------------------------------------------------------
Comment: One commenter requested that the EPA not approve the
requirement to destroy woodstoves. The commenter asserted that backup
heating sources are necessary. The commenter requested that the SIP
allow change-outs without the need to destroy the existing woodstove.
Response: The EPA disagrees with these comments. First, in this
action the EPA is evaluating the specific suite of control measures
that the State identified, adopted, and submitted to the EPA to meet
the BACM requirement for this source category. The EPA does not have
the authority under the CAA to modify a SIP submission unilaterally or
to disapprove a SIP provision in whole or in part on the basis of it
being too stringent.\72\ Second, the requirements that older,
uncertified devices be rendered inoperable are an important component
of Alaska's control strategy in the Fairbanks Serious Plan and
Fairbanks 189(d) Plan.\73\ Alaska's SIP requires, in pertinent part,
that a person who owns a device that may not be reinstalled within the
area to ensure the device is rendered inoperable when it is removed.
The EPA agrees that this approach is technologically and economically
feasible and is appropriate to assure that necessary emission
reductions from this source category actually occur.
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\72\ See CAA sections 110(k) and 116, 42 U.S.C. 7410(k) and
7416; see also Union Elec. Co. v. EPA, 427 U.S. 246, 256-257 (1976).
\73\ See 18 AAC 50.077(l)-(m); 18 AAC 50.079(f).
---------------------------------------------------------------------------
Alaska has also identified, adopted, and submitted provisions that
requires an owner of a woodstove or pellet stove that does not have a
valid certification from the EPA or a non-pellet fueled wood-fired
hydronic heater to render the device inoperable before December 1,
2024, or before the device is sold, leased, conveyed as part of an
existing structure, whichever is earlier. In each instance, the State
has determined that the requirement to render the device inoperable is
important to ensuring the emissions reductions are permanent and that
older, uncertified devices are not reinstalled in a home or business.
Again, the EPA agrees that this approach is technologically and
economically feasible and is appropriate to assure that necessary
emission reductions from this source category actually occur.
In addition, the FNSB operates a Wood Stove Change Out Program
using EPA Targeted Airshed Grant funding.\74\ A requirement to receive
reimbursement for the new stove or furnace is to turn in the old device
for recycling and to submit a Deed Restriction that restricts future
installations of wood, pellet, and coal burning appliances on the
property.\75\ The conditions are important components to ensuring the
integrity of the Wood Stove Change Out Program and the permanence of
emissions reductions.
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\74\ For information on the EPA's Targeted Airshed Program, see:
https://www.epa.gov/air-quality-implementation-plans/targeted-airshed-grants-program.
\75\ Voluntary Solid Fuel Burning Appliance Change Out Program
Application, available at https://www.fnsb.gov/DocumentCenter/View/811/WoodPelletCoal-Appliance-Change-Out-Program-Application-PDF.
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Comment: Several commenters suggested additional controls for the
solid fuel heating device source sector including utilizing temperature
sensors on woodstove flues to ensure compliance with the curtailment
program and switching energy generation from fossil fuels to solar,
hydro, and nuclear.
Response: The EPA understands the perspective of the commenters,
but the commenters do not provide any specific support or explanation
for why the additional measures they advocate are technologically or
economically feasible as BACM measures in the Fairbanks
PM2.5 Nonattainment Area. In this action, the EPA is
evaluating whether the control measures that the State has identified,
adopted and submitted constitute BACM for this source category. Alaska
conducted a review of available controls for the solid fuel heating
device source category and did not identify temperature sensors or
converting to renewable energy generation as potential control measures
in the nonattainment area. Alaska's BACM identification and evaluation
process for the solid fuel burning source category meets CAA
requirements. Based on the analysis in the Fairbanks Serious Plan and
the Fairbanks 189(d) Plan, the EPA has concluded that the existing
measures do meet BACM and does not agree that the additional control
strategies that the commenter suggest are required at this time.
To the extent that more measures may be required for attainment and
maintenance of the NAAQS in this area in the future, the commenters may
wish to continue to advocate for them in future SIP development
processes. In addition, consistent with CAA section 116, Alaska has
authority to adopt measures that are more stringent than required under
the CAA, within certain limitations, and may elect to do so.
ii. Residential and Commercial Fuel Oil Combustion
a. Summary of Proposal
In order to satisfy the SO2 BACM and BACT requirements
for the residential and commercial fuel oil combustion source category,
Alaska adopted the regulation at 18 AAC 50.078(b) that imposes a limit
of 1,000 parts per million sulfur (diesel #1) for residential and
commercial heating. This is a switch from the currently available
diesel #2 (approximately 2,000 parts per million sulfur) to diesel #1.
However, as part of its BACM analysis, Alaska identified 10 other
States and large municipal areas that have instituted ULSD home heating
requirements and found this measure to be technologically feasible and
economically feasible at a cost of $1,819 per ton SO2
removed (SO2 is a significant precursor in the Fairbanks
nonattainment area). Alaska provided a number of community-based
considerations were Fairbanks to undergo the switch from diesel #2 to
ULSD. These considerations included potential collateral environmental
impacts caused by greater fuel transportation requirements required to
maintain an adequate ULSD supply in the Fairbanks PM2.5
Nonattainment Area through the winter months.
The EPA noted that a State must adopt and implement an identified
BACM unless the State demonstrates the potential measure is either
technologically or economically infeasible. Alaska identified the ULSD
requirement as BACM for this source category and its own analysis
indicates this requirement is feasible. While the EPA acknowledged in
the Proposal that implementing a fuel switch from #2 to ULSD may be
challenging, The EPA also stated that the challenges identified by
Alaska in the Fairbanks Serious PM2.5 and the Fairbanks
Section 189(d) Plan were insufficient to support an infeasibility
demonstration. The EPA stated in the Proposal that this is particularly
so when many jurisdictions have successfully required ULSD as a control
measure. The EPA also noted in
[[Page 84641]]
the Proposal that reducing SO2 emissions from this source
category is particularly important to achieving expeditious attainment
because conversions to liquid-fueled heating devices constitute the
vast majority of activity in the woodstove changeout program. Thus, we
proposed to disapprove Alaska's determination that the less stringent
control measure imposing only the requirement to use diesel #1 under 18
AAC 50.078(b) meets BACM requirements for PM2.5 and
SO2 emissions. However, we proposed to approve Alaska's
analysis that found no NH3-specific emission controls for
this source category.
b. Final Rule
Based on comments received, the EPA is finalizing approval of
portions of the Fairbanks Serious Plan and Fairbanks 189(d) Plan,
pertaining to the regulation at 18 AAC 50.078(b), as meeting the
SO2 BACM and BACT requirements for the residential and
commercial fuel oil combustion source category. The EPA received
significant comments, including a revised economic feasibility analysis
from Alaska, that demonstrate that requiring ULSD for this source
category is not economically feasible at this time. However, as
discussed in detail in, Section II.D.7 of this preamble, this measure
appears to be feasible as a contingency measure that, if adopted, could
partially rectify deficiencies in the contingency measures submitted as
part of the Fairbanks Serious Plan and Fairbanks 189(d) Plan.
c. Comments and Responses
The EPA summarizes major comments and responses below. For a
detailed summary of relevant comments and the EPA's responses on this
requirement, see the Response to Comments document included in the
docket for this action.\76\
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\76\ Response to Comments Regarding Best Available Control
Measure Requirements for Residential and Commercial Fuel Oil
Combustion on the Air Plan Partial Approval and Partial Disapproval;
AK, Fairbanks North Star Borough; 2006 24-hour PM2.5
Serious Area and 189(d) Plan EPA-R10-OAR-2022-0115.
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Comment: Several commenters questioned the technological
feasibility of mandating ULSD use for the residential and commercial
fuel oil combustion source category. These commenters argued that
supplying sufficient ULSD to interior Alaska was not logistically
feasible considering constrained rail and highway capacity.
Response: The EPA disagrees that requiring the use of ULSD for the
residential and commercial fuel oil combustion source category is
technologically infeasible. In the Fairbanks Serious Plan and Fairbanks
189(d), Alaska evaluated the logistical challenges but at that time
Alaska concluded that this measure was technologically feasible.\77\
While Alaska updated this information, we do not find that the updated
information is sufficient to determine that the States' initial
technological evaluation was flawed.
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\77\ State Air Quality Control Plan, Vol. III, Appendix III.7.7-
5396, adopted November 18, 2020.
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There are already sources in the Fairbanks PM2.5
Nonattainment Area that are currently using ULSD fuel, so it is self-
evident that it is technologically and logistically feasible for some
amount of this fuel to be available today. Based on the comments, there
appear to be options available to minimize wintertime logistical and
supply issues. To address supply concerns, Alaska did evaluate the
potential for building local storage. Commenters have asserted that
refining ULSD locally has economic challenges, but we have not received
any economic data to support this assertion.
Comment: As part of its comments, Alaska submitted a revised
economic feasibility assessment for mandating ULSD for this source
category. In total, Alaska made eight distinct revisions to the cost-
effectiveness analysis that Alaska submitted for ULSD with the
Fairbanks 189(d) Plan. For example, Alaska updated the fuel use impacts
from switching from 2,000ppm sulfur fuel to ULSD and changes in price
premium for ULSD. Considering a number of scenarios in Alaska's updated
analysis, Alaska revised its BACM determination to state that ULSD
cost-effectiveness was calculated to range from $58,252 per
SO2 ton removed under low baseline oil market prices to
$73,816 per SO2 ton removed under high baseline oil market
price conditions that currently exist in early 2023.
Response: The EPA evaluated Alaska's methodology for producing its
cost effectiveness calculation submitted as part of its comments. The
EPA agrees with some of Alaska's methods and variables and disagrees
with others. The EPA produced a separate cost effectiveness calculation
that builds off Alaska's comment, but incorporates only those methods
and variables that the EPA determined are reasonable and well
supported. The EPA's cost effectiveness calculation is located in the
docket for this action.\78\
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\78\ See the EPA FR Technical Support Document--ULSD residential
and commercial fuel oil combustion, included in the docket for this
action.
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Overall, the EPA's updated cost effectiveness analysis leads to an
overall cost ranging from $13,046 and $22,893 per SO2 ton
removed. The lower-end of the range reflects incorporation of Alaska's
estimate of individuals substituting fuel use for wood use--thus
reducing overall ULSD expenses--in reaction to the price increase
associated with using ULSD. The upper-end of the range does not
incorporate this estimate. Given the variability in fuel prices and
speculative basis for estimating residents' economic behavior given the
ULSD mandate, the EPA believes that the upper-end of the estimate
reflects more accurate and conservative assumptions about the cost
effectiveness of mandating ULSD.
iii. Small Commercial Area Sources
a. Summary of Proposal
Alaska identified BACM and BACT requirements for small area source
categories as part of the Fairbanks Serious Plan and then updated those
findings as part of the Fairbanks 189(d) Plan.
Alaska adopted a control measure for coffee roasters at 18 AAC
50.078(d) that required installation of an emissions control device
unless the coffee roaster can demonstrate technological or economical
infeasibility. In the Proposal, the EPA stated that, as written, the
State rule purporting to implement this measure does not appear to be
enforceable as a practical matter. The rule does not require use of
emissions controls once installed, specify any emission limits, nor
monitoring requirements with which the subject sources must comply. In
addition, the rule contains a waiver provision based on the facility
providing information demonstrating that the control technology is
technologically or economically infeasible. This provision is not
adequately specific or bounded and, thus, may bar effective enforcement
(see 81 FR 58010, August 24, 2016, at p. 58047). In addition, the State
must adopt permanent and enforceable control measures for this source
category even if certain sources within the source category have
existing emissions controls. Therefore, the EPA proposed to disapprove
Alaska's determination that 18 AAC 50.078(d) satisfies BACM for coffee
roasters.
Alaska required commercial charbroilers to submit information to
Alaska related to the type, operation, and performance of the device as
part of
[[Page 84642]]
the Fairbanks Serious Plan.\79\ Based on the information provided,
Alaska then conducted an economic analysis as part of the Fairbanks
189(d) Plan that assessed the cost of installing an available control
measure, catalytic oxidizers, on each of the charbroilers in the
nonattainment area. The State estimated the cost of installing
catalytic oxidizers at $47,786 per ton of PM2.5 removed
(adjusted to 2019 dollars). Thus, Alaska ultimately determined that
BACM is economically infeasible for this source.
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\79\ 18 AAC 50.078(c).
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While the EPA found that Alaska's economic analysis is a reasonable
estimate of the cost of installing one potential emission control
device, Alaska did not evaluate all available control measures.
Currently available emission control devices include electrostatic
precipitators (ESP), wet scrubbers, and filtration.\80\ Moreover,
Alaska did not explain whether there are chain-driven or underfire
charbroilers in the Fairbanks Nonattainment Area, which have different
considerations for emission controls.\81\ Therefore, the EPA proposed
to disapprove Alaska's evaluation of, and BACM determination for,
charbroilers.
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\80\ See Gysel, et al. (2018). Particulate matter emissions and
gaseous air toxic pollutants from commercial meat cooking
operations. Journal of Environmental Sciences, 65, 162-170; Yang, et
al. (2021). Transient plasma-enhanced remediation of nanoscale
particulate matter in restaurant smoke emissions via electrostatic
precipitation. Particuology 55, 43-47; New York City Department of
Environmental Protection (February 2021). Certified Emission Control
Devices for Commercial Under-Fired Char Broilers. Available at
https://www1.nyc.gov/assets/dep/downloads/pdf/air/approved-under-fired-technology.pdf; Francis & R.E. Lipinski (2012). Control of Air
Pollution from Restaurant Charbroilers. Journal of the Air Pollution
Control Association, 27:7, 643-647, available at: https://doi.org/10.1080/00022470.1977.10470466.
\81\ Yang, et al. (2021). Transient plasma-enhanced remediation
of nanoscale particulate matter in restaurant smoke emissions via
electrostatic precipitation. Particuology, 55, pages 43-47.
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Alaska identified and evaluated the prohibition of used oil burners
as a potential BACM-level control measure. Alaska issued a regulation
at 18 AAC 50.078(c) requiring owners and operators of used oil burners
to provide certain information to assist Alaska in evaluating the
feasibility of imposing the prohibition. Ultimately, Alaska did not
adopt and submit any controls on used oil burners as part of the
Fairbanks Serious Plan or Fairbanks 189(d) Plan.
Alaska updated the BACM analysis in the Fairbanks 189(d) Plan to
address environmental impacts if used oil burning were restricted in
the Fairbanks PM2.5 Nonattainment Area. According to the
State, the only way to dispose of used oil in the nonattainment area is
through burning and that limiting this disposal method would likely
lead to dumping the used oil on land or water. While one factor the
State may consider in demonstrating the technological infeasibility of
a measure is collateral environmental impacts, the EPA stated in the
Proposal that Alaska's evaluation is insufficient to demonstrate that
prohibiting used oil burners is technologically infeasible. Notably,
illegal dumping of used oil is prohibited under State and Federal
laws.\82\ Thus, the State and the EPA have a basis for preventing or
mitigating any environmental impacts that may result from prohibiting
used oil burning. The EPA indicated that requiring used oil generators
to collect and ship used oil to a central disposal facility appears
feasible. Because Alaska imposed no controls on this source category
and did not adequately demonstrate that BACM for this emission source
is technologically or economically infeasible, we proposed to
disapprove Alaska's BACM evaluation and determination for use oil
burners.
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\82\ 18 AAC 60.020; 33 U.S.C. 1321; 40 CFR 279.12.
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Similarly, incinerators are another source category subject to the
information requirements under 18 AAC 50.078(c). However, after
receiving information related to this source category, Alaska
determined that there are no emission sources identified as
incinerators in the Fairbanks nonattainment area and thus, evaluation
of emissions controls is not necessary. We proposed to find that Alaska
reasonably determined that there were no affected sources for this
source category, therefore Alaska did not need to identify, adopt, or
implement BACM and BACT for this source category in the Fairbanks
PM2.5 Nonattainment Area.
Overall, for small commercial area sources, we proposed to approve
Alaska's BACM determination for incinerators (18 AAC 50.078(c)(2)). We
proposed to disapprove Alaska's BACM determination for coffee roasters,
charbroilers, and used oil burners for the reasons stated above (18 AAC
50.078(c)(1); 18 AAC 50.078(c)(3); 18 AAC 50.078(d)).
b. Final Rule
The EPA is finalizing approval of Alaska's BACM determination for
incinerators. Based on comments received, the EPA is also finalizing
approval of Alaska's BACM determination for charbroilers and used oil
burners. By extension, the EPA is approving 18 AAC 50.055 as
PM2.5 BACM and BACT for the chairbroiler source category.
The EPA is finalizing disapproval of Alaska's BACM determination for
coffee roasters.
c. Comments and Responses
Comment: Several commenters generally opposed the EPA's proposed
disapproval of Alaska's determinations with respect to small commercial
areas sources on various grounds, including that these sources are
insignificant contributors to pollution; focusing staff resources on
evaluating controls on these sources diverts attention to addressing
major contributors, such as woodstoves; and review of these sources
would not be necessary if the EPA better administered the wood heater
NSPS.
Response: The EPA disagrees with these comments. First, under the
CAA and PM2.5 SIP Requirements Rule, BACM and BACT are
required for all sources of direct PM2.5 and
PM2.5 precursors. In the PM2.5 SIP Requirements
Rule, the EPA expressly determined that given the nature of
PM2.5 that typically results from the combined emissions of
many sources of direct PM2.5 and PM2.5 precursors
that in the aggregate contribute to nonattainment, there should be no
de minimis source category exemption.\83\ Thus, even accepting the
commenter's assertion that these small commercial areas sources are
insignificant contributors to the overall nonattainment problem in
Fairbanks, that would not be a valid basis for not identifying,
adopting, and implementing BACM and BACT on these sources.
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\83\ 81 FR 58010, August 24, 2016, at p. 58082.
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Second, the EPA acknowledges that evaluating potential controls on
these sources takes time and requires staff and/or contractor
resources. For this reason, the EPA engaged with ADEC early in the SIP
development process for the Fairbanks Serious Plan and Fairbanks 189(d)
Plan to provide guidance on these requirements so that ADEC would have
the maximum amount of time to fulfill its obligations. The EPA
disagrees, though, that evaluating controls, adopting regulations, and
implementing and enforcing those regulations are mutually exclusive.
The CAA requires that States with a PM2.5 nonattainment area
to identify, adopt, and implement BACM and BACT. Moreover, the CAA
requires that the State provide necessary assurances that, inter alia,
it has adequate personnel, funding, and authority to carry out the SIP.
Thus, Alaska was aware of the extent of its analytical, rulemaking, and
enforcement obligations and ought to retain sufficient personnel to
carry out those obligations.
[[Page 84643]]
To the extent Alaska is reflecting on the burden of satisfying its
obligations in the context of comments submit of this rulemaking, the
EPA reiterates that it apprised Alaska of these obligations long before
the instant action. Moreover, the EPA repeated the CAA BACM and BACT
requirements in two comment letters submitted as part of the State's
public comment processes for the Fairbanks Serious Plan and Fairbanks
189(d) Plan.\84\
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\84\ ``EPA Comments on 2020 Department of Environmental
Conservation (DEC) Proposed Regulations and SIP Amendments'' Letter
from Krishna Viswanathan, Director, EPA Region 10 Air and Radiation
Division to Alice Edwards, Director, ADEC Division of Air Quality,
October 29, 2020; ``EPA Comments on 2019 DEC Proposed Regulations
and SIP--Fairbanks North Star Borough Fine Particulate Matter''
Letter from Krishna Viswanathan, Director, EPA Region 10 Air and
Radiation Division to Alice Edwards, Director, ADEC Division of Air
Quality, July 19, 2019.
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Third, the EPA disagrees with the commenters' assertion that
evaluating and imposing controls on small commercial area sources would
not be necessary if the EPA better implemented the wood heater NSPS.
The CAA and PM2.5 SIP Requirements Rule required Alaska to
implement BACM and BACT regardless of whether the EPA issued any NSPS
for wood heaters. Moreover, BACM and BACT is generally independent of
attainment needs. Thus, implementation of the NSPS does not alter
Alaska's BACM and BACT obligations under the CAA.
Comment: Alaska asserted that, based on monitoring data, Alaska's
control strategy has made significant progress towards attainment.
Additionally, some commenters referenced the improvement in air
quality based on measured concentrations at the monitors in the
Fairbanks PM2.5 Nonattainment Area. Commenters specifically
noted that concentrations have been cut in half generally and are below
the NAAQS at the ``downtown'' monitor. There are three regulatory
monitors currently operating in the Fairbanks PM2.5
Nonattainment Area: Hurst Road, A Street, and NCore. The Hurst Road
monitor, located in North Pole, has historically measured the highest
concentrations of PM2.5. The EPA acknowledges that measured
concentrations of PM2.5 at the Hurst Road Monitor have
declined from 158 [mu]g/m\3\ in 2012 to 72 [mu]g/m\3\ based on 2019-
2021 data.
Response: The EPA disagrees with the comment that the ``downtown''
monitor is measuring attainment of the NAAQS. The most recent monitor
data at the NCore monitoring station, arguably the closest air quality
monitor to the City of Fairbanks' downtown area, indicate
concentrations of 43 [mu]g/m\3\. The A Street monitor, located in a
portion of Fairbanks of expected maximum PM2.5
concentrations, has not yet established an official 3-year Design Value
to compare to the NAAQS. More importantly, however, all regulatory
monitors in a nonattainment area must have three-year design values at
or below the standard for the EPA to issue a Clean Data Determination
or redesignate the area to attainment.\85\ In addition, neither the A
Street nor NCore monitoring stations have a complete three-year design
value below the NAAQS. Finally, the EPA notes that Alaska established
the A Street monitor location as a SLAMS PM2.5 monitoring
station to characterize expected maximum concentrations in the
Fairbanks portion of the Fairbanks PM2.5 Nonattainment Area.
Thus, the A Street monitoring station, rather than the NCore monitoring
station is more representative of expected maximum concentrations in
the Fairbanks portion of the nonattainment area. Finally, the EPA notes
that an area's progress towards attainment does not affect the CAA's
nonattainment planning obligations, particularly the BACM and BACT
requirements. By extension, the BACM and BACT requirements are not
suspended with a Clean Data Determination issued under 40 CFR
51.1015.\86\ Thus, to the extent the commenters are suggesting that the
control strategy in the Fairbanks Serious Plan and Fairbanks 189(d)
Plan meet CAA requirements by virtue of reductions in measured air
quality, EPA disagrees.
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\85\ 40 CFR 50.13(a) & (c); 40 CFR part 50, Appendix N, Section
3.0(a); 40 CFR 51.1015.
\86\ 40 CFR 51.1015(b) (``Upon a determination by the EPA that a
Serious PM2.5 nonattainment area has attained the
PM2.5 NAAQS, the requirements for the state to submit an
attainment demonstration, reasonable further progress plan,
quantitative milestones and quantitative milestone reports, and
contingency measures for the area shall be suspended.'').
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Comment: In its comments on the Proposal, Alaska proposed to
develop a new regulation, replacing 18 AAC 50.078(d), to address the
EPA's concerns and make its coffee roaster controls enforceable. Alaska
plans to create a new regulation that will address the EPA's concerns
and be submitted in a future SIP revision. The regulation will be
structured as a `permit-by-rule' which will contain substantive
requirements that apply to coffee roasters over the 24 pounds per year
emission threshold.
Alaska further noted that the coffee roasters in the Fairbanks
PM2.5 Nonattainment Area emit a very small amount of direct
PM2.5--far less than the solid fuel burning device source
category. By extension, Alaska commented that spending time and
resources on regulating coffee roasters diverts limited resources away
from addressing the more significant sources of pollution and
ultimately hinders expeditious attainment.
Response: The EPA proposed disapproval of Alaska BACM determination
for coffee roasters because the State rule applicable to this source
category, 18 AAC 50.078(d), was not enforceable as a practical matter.
The EPA appreciates that Alaska indicated in its comments that the
State is planning to address the identified deficiencies in this rule
in a manner that meets BACM and BACT requirements and provides for
basic enforceability. The EPA will evaluate the merits of the revised
rule when the State submits it to the EPA as a SIP revision. The rule
before the EPA remains insufficient for BACM and BACT purposes and we
are finalizing the disapproval of this specific rule because it does
not meet the BACM and BACT requirement.
Comment: In comments, Alaska revised its prior analysis of
charbroilers located in the Fairbanks PM2.5 Nonattainment
Area and updated its cost analysis for emission controls. Alaska
examined survey responses and queried other agencies to determine which
types of charbroilers are present in the nonattainment area and found
that only underfired charbroilers are present. As such, Alaska amended
its analysis because it previously analyzed the cost-effectiveness of
catalytic oxidizers, but that control technology is not viable for
underfired charbroilers. Alaska stated that, based on the EPA's
suggestion and its review of the literature and other SIPs, ADEC
evaluated the feasibility of electrostatic precipitators (ESPs), wet
scrubbers, and filtration as potential control technologies for
underfired charbroilers.
Alaska stated that the EPA did not incorporate the visible emission
limits in 18 AAC 50.055 as being part of BACT for charbroilers despite
Alaska's inclusion of that regulation in its description of BACM for
this emission category. Alaska further commented that the EPA must
evaluate 18 AAC 50.055 as part of BACM for the underfired charbroilers
in the Fairbanks PM2.5 Nonattainment Area.
Alaska noted that, although Alaska believes this technology can be
properly dismissed under Step 3 of the BACM analysis (related to
technological infeasibility), Alaska also evaluated the economic
feasibility of ESPs, wet
[[Page 84644]]
scrubbers, and filtration as BACM for underfired charbroilers. ADEC
analyzed the cost-effectiveness of these control technologies based on
the most comprehensive economic analysis available, which was developed
by the San Joaquin Valley Air Pollution Control District (SJVAPCD).\87\
Alaska adjusted the costs for inflation and the difference in labor
costs between California and Alaska, plus projected shipping costs from
the continental United States to Alaska.
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\87\ Review of the San Joaquin Valley 2018 Plan for the 1997,
2006, and 2012 PM2.5 Standards, California Air Resources
Board, Staff Report, December 21, 2018; Revision to the California
State Implementation Plan for PM2.5 Standards in the San
Joaquin Valley, California Air Resources Board, Staff Report, April
24, 2020. Both documents are included in the docket for this action.
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Alaska stated that, according to SJVAPCD, it reported combined
costs for ESP and filtration technologies as a range rather than a
single number due to the variables involved in the cost estimates,
including equipment type, simple or complicated configuration, age of
the restaurant's infrastructure, and more. Installing new controls on
existing restaurants can be expensive, requiring structural,
electrical, or plumbing modifications, compared to new restaurants that
can integrate emission controls into the design. Based on SJVAPCD's
reasoning, Alaska chose to use this same approach of presenting cost-
effectiveness as a range rather than as a single number.
For the Fairbanks PM2.5 Nonattainment Area, Alaska found
the range of cost-effectiveness for installing an ESP for an underfired
charbroiler to be between $41,467 and $528,940 per ton of
PM2.5 removed, based on a removal efficiency of 86 percent.
Alaska found the range of cost-effectiveness of installing a filtration
system for an underfired charbroiler to be between $44,577 and $568,610
per ton of PM2.5 removed, based on a removal efficiency of
80 percent.
Alaska stated that the cost-effectiveness analysis for filtration
represents wet scrubbers, because wet scrubbers require filtration.
Alaska stated that a wet scrubber is essentially a fine stream of water
and detergent that washes the particulates from the underfired
charbroiler's exhaust, which passes through a filtration system before
discharging to the sewer. Therefore, Alaska stated that the cost
estimates developed for ESP and filtration systems conservatively
represent the cost estimates for wet scrubbers, because wet scrubbers
are an additional cost upstream of filtration systems.
Alaska stated that its review demonstrates that control measures
for underfired charbroilers are technologically and economically
infeasible for the Fairbanks PM2.5 Nonattainment Area.
Alaska based its prior analysis on chain-driven charbroilers and found
that catalytic oxidizers were technologically but not economically
feasible as BACM.\88\ Updated information and further research
indicated the presence of only underfired charbroilers in the
nonattainment area, and the controls for underfired charbroilers are
different. Alaska evaluated the technological and economic feasibility
analysis for ESP, filtration systems, and wet scrubbers for underfired
charbroilers and found all controls to be technologically and
economically infeasible as BACM.
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\88\ Note, in the Proposal, the EPA proposed to concur with this
aspect of Alaska's analysis.
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Response: In the Proposal, the EPA explained that the State had not
adequately identified and evaluated potential control measures for this
source category. For example, the State's analysis did not identify the
types of charbroilers located in the Fairbanks PM2.5
Nonattainment Area. Similarly, the State did not consider and evaluate
different forms of control measures that exist for each of the two
kinds of charbroilers. Instead, the State only identified one potential
control measure for one type of source and claimed this this one form
of control measure would not be economically feasible. Thus, the EPA
explained that the State had not properly identified, evaluated, and
adopted control measures to meet the BACM requirement for this source
category.
Comments on the Proposal provided by Alaska have filled the
analytical gaps. Alaska has gathered additional information to
determine that all existing charbroilers in Fairbanks are underfired
charbroilers. ADEC sent letters to restaurants requesting information
on charbroilers at each establishment. Of all those who responded that
the restaurant had a charbroiler, all stated that they were underfire
charbroilers. Alaska further confirmed with the Alaska Department of
Environmental Conservation's Environmental Health Division, State Fire
Marshalls, and third-party inspectors that there were no chain-driven
charbroilers in the area. The State also identified the range for
potential control measures for this type of source, including an ESP,
wet scrubber, or filtration, based on findings from San Joaquin Valley
Air Pollution Control District staff reports. Alaska noted that The
State evaluated the technological feasibility based on a review of
charbroiler regulations from San Joaquin Valley Air Pollution Control
District, South Coast Air Quality Management District, Bay Area Air
Quality Management District, Utah Department of Environmental Quality,
and the New York City Department of Environmental Protection. Finally,
Alaska performed a cost analysis for each of these control technologies
and provided an estimated range of costs for installing relevant
emission controls, which is included in the docket for this action.
Alaska evaluated the annual costs of installing emission controls
for under-fire charbroilers in new and existing restaurants. An ESP
device was estimated to have an 86 percent control efficiency, while
filtration was estimated to have 80 percent (wet scrubbers were assumed
to perform similar control efficiency as filtration). Estimated costs
were based on prior analyses by SJVAPCD and adjusted for higher costs
in Alaska. Alaska estimated that installation costs in existing
restaurants are twice the cost of new restaurants. Alaska's analysis
estimates an annual cost in new restaurants ranging from $12,817 to
$157,447, to install and operate emission controls. Such a range was
based on equipment type, simple or complicated configuration, age of
the restaurant's infrastructure, and more. Based on the control
efficiencies, estimated cost effectiveness figures for ESP in new
restaurants ranged from $41,467 to $506,171; while filtration ranged
from $50,696 to $568,610.
The EPA finds that Alaska's cost calculations are appropriate for
each of the control options and agree with the State that installing
charbroiler emission controls is economically infeasible at this time.
The EPA is thus finalizing approval of Alaska's PM2.5 BACT
and BACT determination that controls for charbroilers are economically
infeasible at this time. The EPA agrees with Alaska's comment that the
visible emission limit in 18 AAC 50.055 limit the direct
PM2.5 emissions from charbroilers. As a result, the EPA
finds that the visible emission limit in 18 AAC 50.055 constitutes BACM
for the charbroiler source category.
Comment: In its comments, Alaska evaluated the technological and
economic feasibility of shipping used oil via the FNSB Solid Waste
Division facility (Option 1). Alaska also evaluated the option of
purchasing, operating, and maintaining a centrifuge facility in
Fairbanks to process used oil
[[Page 84645]]
from all used oil generators in the community (Option 2).
In evaluating both options, Alaska reviewed data from 2010 and 2020
on used oil. In 2010, Alaska surveyed 25 local auto shops on used motor
oil usage data. The survey estimated the total amount of unprocessed
used motor oil used for burning purposes to be 135,100 gallons per
year. In 2020, after adopting 18 AAC 50.078(c), Alaska sent 129
requests to possible businesses that may have a used oil burner in the
Fairbanks PM2.5 Nonattainment Area. Alaska received 47
responses to the requests for information. Of the responses received,
31 verified that there is no used oil burner present at the business
location and 16 verified that there is a used oil burner present at the
location. Some businesses had multiple used oil burners for a total of
19 used oil burners. Due to varied results concerning the fuel quality
and quantity, Alaska did not find the 2020 collected data to be useful
information. Thus, between the two data collection efforts, Alaska
found the survey information obtained in 2010 to be comprehensive and
based its evaluation of Options 1 and 2 on this information.
Alaska noted that the local solid waste facility already has a
program in place as described above for accepting used oil from
residents and very small quantity generators limited to 26 gallons
(approximately 100 kilograms) of used oil per month. However, the
facility does not accept used oil from large-quantity generators
producing greater than 26 gallons per month. Due to this limitation,
Alaska would have to explore other alternatives for large-quantity
generators of used oil and Option 1, therefore, is only partly
technologically feasible.
In evaluating economic feasibility, Alaska assumed the emissions
reduction to be 50 percent since there is no information on the
fraction of used oil used for direct combustion versus disposal (while
shipping the used oil compared to disposal will result in 100 percent
emissions reduction, replacing used oil for combustion will not result
in 100 percent reduction as burning used oil results in additional
emissions). As demonstrated by the cost-effectiveness calculations
provided along with this comment, the cost-effectiveness for Option 1
is found to be $730,182 per ton of PM2.5 emissions
reduction. The higher shipping cost per gallon and a lower reduction in
emissions drive the higher cost-effectiveness numbers.
To evaluate the technological feasibility of Option 2, Alaska
reached out to commercial vendors and referred to publicly available
information from online vendors and the Fairbanks North Star Borough
Solid Waste Division. Based on that information, Alaska found Option 2
to be technologically feasible (in terms of shipping and maintenance
required for different components of the centrifuge facility).
In evaluating economic feasibility, Alaska assumed 100 percent
emissions reduction by processing the used oil at the centrifuge
facility. Costs to establish a centrifuge facility consist of building
costs, equipment costs (consisting of centrifuge, tankage, and
forklift), labor, and operational and maintenance costs. Discussions
with commercial vendors highlighted that centrifuging used oil (e.g.,
motor oil, cooking oil, and oil containing animal fat) is a labor-
intensive process as the oil must be separated due to the differences
in boiling point. As demonstrated by the cost-effectiveness
calculations provided along with this comment, the cost-effectiveness
for Option 2 is found to be $653,989 per ton of PM2.5
emissions reduction.
Based on Alaska's additional technological and economic feasibility
analysis, Alaska's dismissal of Measure 70 is unchanged. The combustion
of used oil is the only acceptable disposal method available in the
Fairbanks PM2.5 Nonattainment Area without shipping the used
oil to a central facility at Anchorage or processing it at a centrifuge
facility in Fairbanks. While Alaska found both options to be partly or
fully technologically feasible, the economic analysis resulted in high
cost-effectiveness numbers due to higher costs and minimal emissions
reduction. Due to economic infeasibility, Alaska dismissed this measure
as BACM in the Fairbanks PM2.5 Nonattainment Area.
An additional comment noted that burning used oil is cost efficient
and responsible compared to trucking it off site.
Response: The EPA proposed to disapprove Alaska's BACM analysis for
used oil burners because Alaska's initial justification for not
adopting control measures was not sufficient to demonstrate the measure
was infeasible. In comments, Alaska provided additional information
concerning potential control strategies that would achieve emission
reductions and has assessed the economic feasibility these strategies.
Based on the additional facts and analysis that the State has
provided, the EPA agrees that there is a significant cost to reducing
PM2.5 for this emission source category. However, we
observed in the data provided by Alaska that for the waste oil emission
estimates there are considerably more SO2 emissions than
PM2.5 emissions, and thus potential for greater reductions
in SO2.\89\ Alaska estimated SO2 emissions of
0.0185 tons per day from waste oil (compared to 0.0026 tons per day for
PM2.5). Alaska estimates 135,150 gallons per year of waste
oil is produced Fairbanks. By applying the SO2 emission
factor (instead of PM2.5) into the cost calculations for
each of the two options, the EPA estimates a cost effectiveness value
of $102,838 per SO2 ton reduced for Option 1 and $92,107 per
SO2 ton reduced for Option 2. While considering
SO2 emission reductions provides a more reasonable estimate
of benefits, we agree with Alaska that Measure 70--banning used oil
burners is economically infeasible as BACM at this time.
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\89\ ADEC comments on the Proposal, Docket Identification No.
EPA-R10-OAR-2022-0115-0353-A5.
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iv. Energy Efficiency and Weatherization Measures
a. Summary of Proposal
In the Proposal,\90\ the EPA proposed disapproval of Alaska's BACM
analysis with respect to potential energy efficiency and weatherization
measures. The State had provided a number of reasons for declining to
adopt and implement any such measures, each of which the EPA proposed
to reject as bases to not adopt weatherization and energy efficiency
measures. Specifically, the EPA noted the State and local government
have the authority to require adequate insulation in buildings,
particularly new construction. Therefore, the State's reliance on the
ostensible lack of authority is not a valid justification for rejecting
this type of control measure. In addition, the EPA stated in the
Proposal that the just because emissions benefits are hard to quantify
does not mean there are no emissions benefits. As stated above, the
BACM requirement is generally independent of attainment needs. Finally,
a State cannot reject a measure just because another jurisdiction has
not adopted and implemented the measure.\91\
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\90\ The EPA Technical Support Document--control measures. EPA-
R10-OAR-2022-0115-000004, at p. 34.
\91\ See 81 FR 58010, August 24, 2016, at p. 58085.
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b. Final Rule
The EPA is finalizing disapproval of Alaska's BACM analysis and
determination that no weatherization or energy efficiency type measures
are required for purposes of BACM in the Fairbanks area. As noted in
the responses to comments, the EPA
[[Page 84646]]
encourages Alaska to evaluate this type of control measure and to
identify, adopt, and implement all feasible measures as part of a
subsequent SIP submission.
c. Comments and Responses
Comment: Several commenters asserted that improving building energy
efficiency and weatherization practices are important strategies for
reducing wood burning and improving air quality in the Fairbanks
PM2.5 Nonattainment Area. One commenter stated that most
homes in the Fairbanks North Star Borough were built in the 1970s and
1980s.
Response: The EPA agrees with the commenters that improving energy
efficiency and weatherization practices is an important strategy for
reducing the amount of wood, and other fuels, combusted in the
Fairbanks PM2.5 Nonattainment Area and, thus, improving air
quality. This is particularly important given the age of many homes in
the Fairbanks PM2.5 Nonattainment Area, because older homes
may not meet modern energy efficiency building standards. In
conjunction with other measures that Alaska has imposed to address
source categories such as wood fired heating devices, reducing the
usage of such sources through improved weatherization and energy
efficiency would further reduce resulting emissions from these sources.
Comment: One commenter opposed the EPA's proposed disapproval of
Alaska's rejection of weatherization measures, asserting that such
measures are unrealistic.
Response: The comment does not provide a basis for its assertion
that weatherization requirements are unrealistic or that imposing any
weatherization requirement or program will be harmful. Nor does the
comment provide a basis for demonstrating that all weatherization
measures or programs are infeasible in the Fairbanks PM2.5
Nonattainment Area.
The EPA notes that the Alaska Community Development Corporation
offers a weatherization assistance program using Alaska Housing Finance
Corporation and U.S. Department of Energy Funding.\92\ This program
reflects the energy efficiency benefits of weatherization and
demonstrates the feasibility of implementing weatherization programs in
Alaska. The EPA also notes there has been significant research and
technological advances related to building and retrofitting homes in
arctic and sub-arctic environments that also illustrates the
feasibility of such measures.\93\ Thus, the comment does not provide a
basis for the EPA to approve Alaska's rejection of any weatherization
and energy efficiency measures as BACM and BACT for sources in
Fairbanks PM2.5 Nonattainment Area.
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\92\ See Alaska Community Development Corporation,
Weatherization Assistance Program, https://www.alaskacdc.org/weatherization-assistance-program.html.
\93\ See Cold Climate House Research Center, Retrofits,
available at https://cchrc.org/retrofits/.
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Comment: Alaska commented that, in response to the EPA's proposed
disapproval with respect to this issue, the State conducted a thorough
review of weatherization and energy efficiency programs throughout the
continental United States. Alaska also performed a deeper investigation
of local efforts that it had not accounted for in Alaska's SIP
submission to evaluate an emissions reduction commitment in the SIP.
Based on this review, Alaska identified weatherization programs that
fall into three board categories: (1) Public Education and Outreach
Programs; (2) Energy Audits; and (3) Building Energy Codes.
With respect to public education and outreach programs, Alaska
identified existing weatherization related programs implemented by the
San Joaquin Valley Air Pollution Control District and Sacramento
Metropolitan Air Quality Management District. These programs include
educating the public on the effects of air pollution on health and
dissemination of weatherization information in the form of pamphlets,
brochures, and other materials.
Alaska also identified and evaluated weatherization-type controls
implemented though building energy codes. Alaska identified several
jurisdictions that incorporate building energy codes in SIP provisions,
including the South Coast Air Quality Management District (``SCAQMD'')
and Dallas-Ft Worth Texas Commission of Environmental Quality.
In addition, Alaska evaluated programs that perform energy audits.
Alaska identified energy audit programs implemented in the City of
Berkeley, San Francisco, California; Boulder, Colorado; Burlington,
Vermont; and Ann Arbor, Michigan. According to Alaska, the City of
Berkeley adopted its Building Energy Saving Ordinance (``BESO'') in
2015. BESO requires homeowners to complete energy efficiency
assessments and publicly report the building's energy efficiency
information. This assessment and reporting requirement is triggered by
a sale, transfer, or renovation, and at specified intervals based on a
phase-in schedule.
Alaska noted that it has several voluntary programs to provide
weatherization measures, provide education and outreach, and improve
energy efficiency. For example, the Alaska Housing Finance Corporation
(``AHFC'') energy programs have continued to be implemented in the
Fairbanks nonattainment area since Alaska adopted them as a voluntary
measure under the Fairbanks Moderate Plan. Currently, AHFC offers an
energy efficiency interest rate reduction (``EEIRR'') program, home
energy loan program, and weatherization program. These programs are
designed to make homes more energy efficient and reduce the amount of
fuel and electricity required for power and heating purposes thereby
leading to reduced emissions and air quality benefits.
In Fairbanks, the program is implemented by Interior
Weatherization, Inc., (``Interior Weatherization'') a non-profit
corporation founded in 1985. The program provides low- and moderate-
income households with improvements to their homes at no cost to
increase the energy efficiency of a dwelling. The organization's
website states that it weatherizes approximately 500 homes each year
and that it has improved over 5,000 homes since its inception.
Alaska also identified the Heating Assistance Program, administered
by the Alaska Department of Health, which offsets the cost of home
heating for households with income at or below 150% of the Federal
poverty income guidelines, the Alaska Energy Authority's Energy
Efficiency and Conservation education and outreach campaign, and the
Southwest Alaska Municipal Conference's low-cost energy audits and
grant assistance to small businesses and commercial fishers as ongoing
voluntary programs.
With respect to building codes, according to Alaska, the AHFC has
established Building Energy Efficiency Standards (``BEES'') to improve
energy efficiency in the construction of new buildings. The BEES set
standards for thermal resistance, air leakage, moisture protection, and
ventilation. The AHFC requires these standards to be met only for
buildings built on or after January 1, 1992, if the owner applies for
AHFC financial assistance.
Alaska noted in its comments that implementation of these types of
programs in Alaska varies depending on the availability of contractors
to perform the work, funding levels, and changes in congressional
authorizations. Alaska made clear that all such programs are
[[Page 84647]]
voluntary and therefore do not provide enforceable emission reductions.
Alaska commented that it does not intend to adopt any building
energy efficiency codes or mandatory weatherization requirements due to
limitations on ADEC's legal authority. Alaska stated that the City of
Fairbanks is a home rule municipality that has exclusive authority to
enforce a specific building code and the City has, indeed, enacted
several discrete code provisions that could authorize certain
weatherization measures. Because the City is a home rule entity with
certain constitutional powers, the State would have to enact a statute
to preempt the City's building code authority before Alaska could issue
a regulations package requiring additional or new insulation. Thus, as
of the date of this comment, neither the State nor the Borough has the
authority to enact and enforce a building code measure that overlaps
the authority of the City.
Alaska stated that outside Fairbanks city limits, but within the
Fairbanks North Star Borough, the Borough implements the
PM2.5 Air Quality Control Program which includes voluntary
home heating source removal funding. However, in 2018 voters approved
the Home Heating Reclamation Act which precludes the Borough from ``in
any way'' regulating, prohibiting, curtailing, banning, or issuing
fines or fees associated with the sale, distribution, installation, or
operation of solid fuel heating appliances or any type of combustible
fuels. Thus, according to Alaska, even though the Borough may have the
authority to provide for air pollution control by virtue of Alaska
Statute (AS) 29.35.210 and AS 46.14.400, the Borough cannot exercise
that authority. According to Alaska, the Borough does not have the
authority to enact and enforce a building code.
Alaska commented that it may have some State law authority to adopt
and enact weatherization measures such as insulation requirements
pursuant to AS 46.03.020 (10) and AS 46.14.030 within the Borough.
However, Alaska commented that it lacks the technical expertise to
implement such a measure and that such measures would be economically
infeasible due to the implementation and enforcement costs and small
emission reduction benefits.
Alaska also commented that weatherization and energy efficiency
measures would not be necessary or required if the EPA had not failed
to correctly test and certify wood stoves under the NSPS. Alaska
commented that improving the efficiency of the residence is necessarily
subsequent to the heating process--it is a reaction to the source (e.g.
the stove). According to Alaska, the heating source was purchased and
installed on the basis that it did not exceed emission standards and
was tested and certified as such. Thus, Alaska concluded, consideration
and adoption of weatherization and energy efficiency measures is only
necessary due to the EPA's failure to property test and certify wood
stoves.
Finally, Alaska commented that to address the EPA's disapproval of
the Fairbanks Serious Plan and Fairbanks 189(d) Plan for lack of energy
efficiency and weatherization control measures it will propose a
regulation requiring a robust advertising and education program to the
citizens of Fairbanks North Star Borough and will include best
practices to improve efficiency in an arctic environment and available
economic and practical mechanisms that can assist homeowners in
improving both efficiency and regulatory compliance. Alaska also
commented that it will disseminate weatherization information in the
form of pamphlets or brochures.
In addition, Alaska commented that it plans to implement a
regulation requiring energy efficiency audits for buildings at the time
of conveyance. The regulation will consist of a building owner
completing an energy efficiency assessment with a licensed energy
assessor. This measure will require the owners to pay for the audit.
Any improvements identified by the assessor are voluntary. Alaska noted
the difficulty of implementing this measure due to lack of qualified
energy auditors in the Fairbanks North Star Borough.
Response: The EPA disagrees with the Alaska's view that no
weatherization- or energy efficiency-type control measures are needed
to meet BACM requirements in the Fairbanks area. The EPA appreciates
that the State did further investigation and analysis of the types of
measures that, if adopted, might meet BACM requirements for the
Fairbanks PM2.5 Nonattainment Area. This additional analysis
illustrates the types of measures that other jurisdictions have enacted
as SIP provisions to achieve this objective.
The EPA acknowledges the various voluntary incentive programs in
Alaska for energy efficiency upgrades and weatherization. These
measures, however, do not appear to meet the EPA guidelines for
enforceability and SIP emission reduction credit.\94\ The EPA also
notes that the City of Fairbanks and City of North Pole have adopted
building and energy efficiency codes; however, these codes are not
included in Alaska's SIP and only cover a portion of the Fairbanks
PM2.5 Nonattainment Area.\95\ Alaska's comment indicates
that several jurisdictions have implemented different forms of energy
efficiency and weatherization programs beyond Alaska's voluntary
measures. This supports the EPA's disapproval of Alaska's rejection of
these measures.
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\94\ See PM2.5 SIP Requirements Rule, 81 FR 58010,
August 24, 2016, at p. 58139; see also U.S. Environmental Protection
Agency, Office of Air and Radiation, Incorporating Emerging and
Voluntary Measures in a State Implementation Plan (SIP), September
2004, available at https://www.epa.gov/sites/default/files/2016-02/documents/emerging_vol_measures.pdf.
\95\ City of Fairbanks Ordinance 6153; City of North Pole Code
15.12.010.
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Alaska misconstrues the EPA's statements regarding authority.
First, Alaska cited a lack of authority as a basis for technological
infeasibility of weatherization and energy efficiency measures. In the
Technical Support Document reviewing this determination, the EPA stated
that the State and local governments have the authority to require
adequate insulation in buildings, particularly new construction.\96\
The CAA requires States to provide necessary assurances that ``the
State (or, except where the Administrator deems inappropriate, the
general purpose local government or governments, or a regional agency
designated by the State or general purpose local government for such
purpose) will have adequate personnel, funding, and authority under
State (and, as appropriate, local) law to carry out such implementation
plan (and is not prohibited by any provision of Federal or State law
from carrying out such implementation plan or portion thereof).'' \97\
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\96\ Jentgen, M. (September 27, 2022). Technical support
document for Alaska Department of Environmental Conservation's
(ADEC) control measure analysis, under 40 CFR 1010(a) and (c). U.S.
Environmental Protection Agency, Region 10, Air and Radiation
Division.
\97\ CAA section 110(a)(2)(E)(i), 42 U.S.C. 7410(a)(2)(E)(i).
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By ``State,'' the EPA did not mean merely ADEC, but the State of
Alaska.\98\ A State is required to have legal authority under State law
to meet CAA requirements. A State may under State law elect to share
its authority and responsibility for meeting CAA requirements with
local governments.\99\ Having done so, however, it is not appropriate
for a State to claim that it cannot meet a CAA requirement due to this
division of authority and responsibility.
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\98\ CAA section 302(d), 42 U.S.C. 7602(d).
\99\ 40 CFR 51.232.
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[[Page 84648]]
The legislative power of the State is vested in the
Legislature.\100\ Regarding Home Rule Cities and Boroughs, the EPA
acknowledges that certain home rule cities and borough may have
exclusive legislative powers under the Constitution of the State of
Alaska, including building codes. This does not mean that no State or
local government has authority to enact weatherization or energy
efficiency measures, but merely means that the home rule city or
borough must do so. The EPA approved SIPs often include city and county
ordinances for this reason.\101\ Such local control may mean that
multiple city and borough ordinances need to be incorporated into a
State's SIP and approved by the EPA to ensure coverage across a
particular nonattainment area. With respect to the economic feasibility
of implementing weatherization measures and building codes, the cost to
the State or local agency of administering a control measure is not a
valid consideration when evaluating the economic infeasibility of the
measure nor a valid basis for not implementing an otherwise feasible
measure.
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\100\ The Constitution of the State of Alaska, Article II,
Section 1.
\101\ See, e.g., 40 CFR 52.70(c), Table 3.
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The EPA also disagrees with the commenter's assertion that
weatherization and energy efficiency measures are only necessary
because certain woodstoves operated in the nonattainment area do not
meet the NSPS. The EPA rejects the premise that weatherization and
energy efficiency measures are necessarily a reaction to the heating
source or that the emission performance of a space heater correlates to
the energy efficiency or insulation of the home. Weatherization and
energy efficiency measures, such as increased insulation, improve the
retention of space heat regardless of the source of such heat and
regardless of air pollutant emissions (if any) from that source.\102\
Thus, improved weatherization and energy efficiency have the potential
to reduce emissions from all space-heating source categories--not just
the solid fuel burning source category.
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\102\ See U.S. Department of Energy, Energy Saver--Insulation,
available at https://www.energy.gov/energysaver/insulation.
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Moreover, the EPA believes that improved heat retention means less
fuel use, which means less cost to the resident.\103\ As a result,
better heat retention can reduce costs for all residents and may make
switching to higher cost fuels more affordable for residents. In
contrast, poor weatherization and energy efficiency can undermine
advances in the emissions performance of space heaters because it
forces the operator to burn more fuel to heat a volume of air. Thus,
the EPA's position remains that disapproval of Alaska's rejection of
this measure is appropriate.
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\103\ Id. See also, U.S. Environmental Protection Agency, Energy
Resources for State and Local Governments, Local Residential Energy
Efficiency, available at https://www.epa.gov/statelocalenergy/local-residential-energy-efficiency.
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In response to the Proposal, Alaska's comments indicate that the
State intends to evaluate and adopt additional measures to address
weatherization and energy efficiency. For example, the State indicated
its intention to propose a regulation to require a more robust
advertising and education program to advise residents of best practices
to improve energy efficiency, and about available economic and
practical mechanisms to improve energy efficiency, analogous to such
efforts in other jurisdictions. Likewise, the State indicated that it
intends to evaluate and adopt a regulation related to energy efficiency
audits, analogous to efforts in other jurisdictions. The EPA will
review Alaska's revised energy efficiency and weatherization measures
once Alaska formally submits them to the EPA as part of a SIP revision.
Consistent with the CAA and PM2.5 SIP Requirements Rule, the
EPA encourages Alaska to identify, adopt, and implement all feasible
energy efficiency and weatherization measures.
v. Emissions From Mobile Sources
a. Summary of Proposal
Alaska identified and evaluated several mobile source emission
reduction measures and other transportation control measures as
potential BACM for purposes of the 2006 24-hour PM2.5 NAAQS
in the Fairbanks PM2.5 Nonattainment Area. These measures
included: California Air Resources Board (CARB) vehicle standards
(Measure 54); school bus retrofits (Measure 55); road paving (Measure
56); controls on road sanding and salting (Measure 58); a vehicle
inspection and maintenance (I/M) program (Measure 59); vehicle idling
restrictions (Measure 60); and Other transportation control measures
(Measures 57 and R20) including high-occupancy vehicle (HOV) lanes,
traffic flow improvements, non-motorized traffic zones; employer-
sponsored flexible work schedules, diesel fleet retrofitting (school
buses, transit fleets), an on-road vehicle I/M program; a heavy-duty
vehicle I/M program, and a low-emission vehicle (LEV) program. Alaska
rejected each of these measures as either technologically infeasible,
economically infeasible, providing low emissions reductions benefits,
or because emissions reductions benefits are difficult to quantify.
The EPA proposed to approve in part and disapprove in part Alaska's
BACM determinations with respect to these potential measures.
Specifically, the EPA proposed to approve Alaska's rejection of the
CARB vehicle standards (Measure 54) as economically infeasible. The EPA
proposed to approve Alaska's rejection of school bus retrofits (Measure
55); road paving (Measure 56); and controls on road sanding and salting
(Measure 58) as technologically infeasible. Finally, the EPA proposed
to approve Alaska's rejection of a vehicle I/M program (Measure 59)
because such a program only reduces NOX and VOC emissions
and the EPA proposed to approve Alaska's precursor demonstration that
shows NOx and VOCs are not significant precursors to PM2.5
formation in the Fairbanks PM2.5 Nonattainment Area.
The EPA also proposed to approve Alaska's determination that no
NH3-specific emission controls exist for this source
category. However, the EPA proposed to disapprove Alaska's rejection of
vehicle idling restrictions (Measure 60) and other transportation
measures (Measures 57 and R20) \104\ as BACM. In support of its
proposed disapproval, the EPA noted that Alaska did not demonstrate
that these specific measures were either technologically or
economically infeasible. The EPA further noted that BACM is generally
independent of attainment needs and that Alaska cannot reject potential
BACM merely because the emissions from a source category are de
minimis. Finally, the EPA stated that certain on-going transportation
programs for which Alaska took credit were not included in the SIP
submission.
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\104\ Measure R20 includes: HOV lanes; Traffic flow improvement
program; Create non-motorized traffic zones; Employer-sponsored
flexible work schedules; Retrofit diesel fleet (school buses,
transit fleets); On-road vehicle I/M program; Heavy-duty vehicle I/M
program; and State LEV program.
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b. Final Rule
The EPA is finalizing approval of Alaska's rejection of the CARB
vehicle standards (Measure 54) as economically infeasible, as proposed.
The EPA is likewise finalizing approval of Alaska's rejection of school
bus retrofits (Measure 55) road paving (Measure 56); and controls on
road sanding and salting (Measure 58) as technologically infeasible, as
proposed. The EPA is also finalizing approval of Alaska's rejection of
a vehicle I/M program (Measure 59),
[[Page 84649]]
as proposed. The EPA is also finalizing its approval of Alaska's
determination that no NH3-specific emission controls exist
for this source category.
Based on comments received, the EPA is finalizing approval in part
and disapproval in part of Alaska's rejection of vehicle idling
restrictions (Measure 60) and Other Transportation Measures (Measures
57 and R20). Specifically, the EPA is finalizing approval of Alaska's
rejection of vehicle idling restrictions for heavy-duty diesel vehicles
as economically infeasible. The EPA is finalizing disapproval of
Alaska's rejection of vehicle idling restrictions for light-duty
vehicles at schools and commercial establishments. The EPA is
finalizing approval of Alaska's rejection of other transportation
measures (Measures 57 and R20) as either technologically infeasible
(HOV lanes) or economically infeasible (traffic flow improvements,
diesel retrofit projects, and ridesharing programs).
c. Comments and Responses
The EPA received no comments regarding its proposed approval of
Alaska's rejection of the CARB vehicle standards (Measure 54), school
bus retrofits (Measure 55), road paving (Measure 56); controls on road
sanding and salting (Measure 58); and Vehicle I/M program (Measure 59)
as either technologically or economically infeasible. The EPA received
no comments regarding its proposed approval of Alaska's determination
that no NH3-specific emission controls exist for this source
category.
The EPA received one comment supportive of imposing vehicle idling
restrictions. The EPA received several comments opposing the EPA's
Proposal to disapprove Alaska's rejection of vehicle idling
restrictions (Measure 60) and other transportation measures (Measures
57 and R20).
Comment: One commenter stated that ``vehicle pollution is a smaller
component of the problem. Idling vehicles in parking lots create a lot
of exhaust. Just like burning wood on bad days, vehicle idling needs to
be curtailed.''
Response: The EPA agrees with the commenter that idling vehicles in
parking lots creates exhaust which degrades air quality, particularly
during air stagnation events. The EPA also agrees that absent a
credible technological or economic infeasibility demonstration, Alaska
should impose vehicle anti-idling restrictions. As discussed in the
following paragraphs of this preamble, the EPA is disapproving Alaska's
determination that anti-idling measures are technologically and
economically infeasible. The EPA encourages Alaska to adopt and
implement an anti-idling regulation and incorporate this regulation
into a subsequent SIP submission.
Comment: Alaska opposed the EPA's proposed disapproval of Alaska's
rejection of vehicle idling restrictions and Other Transportation
Measures on three main grounds: (1) Alaska did not predicate its
rejection of the measures on a determination that the mobile source
category is de minimis and its initial rejection of the measures was
consistent with the CAA, PM2.5 SIP Requirements Rule, EPA
guidance, and other prior EPA actions on other State's SIPs; (2)
certain measures are approved into the Alaska SIP; and (3) the measures
are infeasible based on a supplementary analysis.
Alaska asserted that it did not reject the control measures based
on a determination that the source category was de minimis. Alaska
stated that it did not determine that the mobile source category had a
de minimis contribution to PM2.5 levels or predicate
dismissal of the control measures on that basis. Rather, Alaska
dismissed the measures as technologically infeasible. Alaska also noted
that the EPA inconsistently interpreted and applied the
PM2.5 SIP Requirements Rule in proposing to disapprove
Alaska's BACM analysis for the mobile source category. Specifically,
Alaska cited to two prior EPA actions approving nonattainment plans
submitted by South Coast Air Quality Management District and San
Joaquin Air Quality Management District that rejected certain control
measures as technologically infeasible on similar grounds as Alaska.
As to whether certain measures were SIP approved, Alaska asserted
that the EPA approved expanded availability of plug-ins and an
ordinance mandating electrification of outlets at certain temperatures
as RACM in the Fairbanks Moderate Plan. Alaska also commented that all
ongoing transportation programs in the approved Fairbanks Moderate Plan
are transportation control measures for conformity purposes.
Finally, Alaska provided supplemental economic infeasibility
demonstrations for HOV lanes, traffic flow improvements, anti-idling
measures, diesel retrofit projects, and ridesharing programs. Regarding
HOV lanes, ADEC evaluated the feasibility of constructing an HOV Lane
on the Steese Expressway, a four-lane divided highway in the area. As
part of its assessment, Alaska assumed peak hour volume and a
conservative highway capacity. Alaska determined that even with these
conservative assumptions, the Steese Expressway would experience a
reasonably free-flow operations and free flow speed. Thus, Alaska
concluded that construction of an HOV lane on the Steese Highway or
similar four-lane divided highways in the Fairbanks PM2.5
Nonattainment Area would provide no emissions benefits and would be
technologically infeasible.
With respect to Traffic flow improvements, Alaska conducted an
economic feasibility assessment of traffic signal improvements and
synchronization, roundabouts, and intersection improvement projects.
Alaska determined that the cost effectiveness of each of these projects
exceeded $1 million per ton of PM2.5 removed.
For anti-idling measures, Alaska conducted economic feasibility
assessments of implementing an anti-idling program of heavy-duty diesel
vehicles, light-duty passenger vehicles at schools, and light-duty
passenger vehicles at commercial establishments. Alaska determined that
the cost effectiveness of implementing these programs ranged from
$455,675.88 to $210,198,489 per ton of PM2.5 reduced.
Alaska also evaluated the economic feasibility of diesel retrofit
projects. Alaska referenced a Federal Highway Administration study that
evaluated 27 diesel retrofit projects that consisted of retrofitting
older diesel vehicle engines with emissions reduction technologies such
as diesel particulate filters, selective catalytic reduction, diesel
oxidation catalysts, and exhaust gas recirculation technologies.
According to the study, the median cost effectiveness was $165,130 per
ton of PM2.5 reduced.
Similarly, Alaska evaluated the economic feasibility of
implementing various ridesharing programs. Alaska referenced a Federal
Highway Administration (FHWAI) study that evaluated 40 ridesharing
programs. Based on the study, Alaska determined that the median cost
effectiveness of implementing the programs would $6,010,024 per ton of
PM2.5 reduced.
In addition to Alaska, Fairbanks Area Surface Transportation (FAST)
Planning opposed the EPA's proposed disapproval of Alaska's rejection
of vehicle idling restrictions and other transportation measures. FAST
Planning commented that Alaska did not predicate its rejection of the
measures on a determination that the mobile source category is de
minimis. FAST Planning also noted that the EPA was internally
inconsistent in its Proposal--proposing to approve Alaska's rejection
of vehicle I/M program (Measure 59) and proposing to disapprove
Alaska's rejection of a similar I/M program
[[Page 84650]]
evaluated as part of a suite measures included as other transportation
control measures (Measure 57, Measure R20).
FAST Planning commented that the EPA is requiring the State to
consider implementing transportation controls that will result in
limited to no reductions of PM2.5 emissions without regard
to cost to the community. Similarly, FAST Planning commented that some
measures are not warranted or appropriate for the Fairbanks
nonattainment area. In particular, FAST Planning stated that HOV lanes
are not appropriate for the Fairbanks PM2.5 Nonattainment
Area because they are meant for communities with much larger
populations and severe congestion. Fairbanks has a comparatively small
traffic size and has a lack of congested roadways.
FAST Planning also commented that the EPA did not provide credit to
the State for existing and ongoing transportation control measures
listed in the SIP. FAST Planning asserted that Alaska included a list
of voluntary transportation measures in the SIP submission (such as the
expansion of transit service, motor vehicle plug-ins, public education
and outreach, and anti-idling measures). FAST Planning stated that
these measures are not voluntary because the State is required to fund
these measures.
Response on de minimis source category comments: The EPA
acknowledges that Alaska did not explicitly designate the mobile source
category as a de minimis source category in the Fairbanks Serious Plan
and Fairbanks 189(d) Plan for the purposes of avoiding adopting and
implementing BACM and BACT on mobile sources. The EPA's proposal to
disapprove Alaska's rejection of these control measures for mobile
sources was based on several factors: (1) low emissions benefits is not
a valid basis to reject a measure as technologically infeasible; (2)
BACM is generally independent of attainment needs; and (3) Alaska's
rejection of all measures to control emissions from mobile sources
appeared to implicitly determine that this source category was de
minimis. The EPA notes that in its comments Alaska supplemented its
infeasibility demonstrations for the mobile source control measures.
These supplemental demonstrations alleviate the EPA's concern about
effectively determining that the mobile source category is de minimis.
The ensuing discussion provides further explanation for the EPA's
proposed disapproval and position regarding technologically
infeasibility demonstrations:
CAA section 189(b) and 40 CFR 51.1010(a) contain the control
measure requirements for Serious areas. CAA section 189(d) and 40 CFR
51.1010(c) contain the control measure requirements for Serious areas
that fail to attain. The EPA summarized these requirements in the
proposed rule.\105\ Of particular relevance here, in accordance with 40
CFR 51.1010(a), the State must adopt and implement the best available
control measures and technologies for each emission source. However,
the State may demonstrate that any measure identified under 40 CFR
51.1010(a)(2) is not technologically or economically feasible to
implement in whole or in part by the end of the tenth calendar year
following the effective date of designation of the area and may
eliminate such whole or partial measure from further consideration.
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\105\ 88 FR 1454, January 10, 2023, at pp. 1464-1465.
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In addition, the EPA's longstanding interpretation of the CAA is
that BACM and BACT determinations are to be generally independent of
attainment for purposes of implementing the PM2.5
NAAQS.\106\ The EPA interprets the CAA requirement to impose BACM and
BACT-level control as requiring more emphasis on what controls are the
best for the relevant source and whether those controls are feasible
rather than on the attainment needs of the area.\107\ Finally, States
also may not decline to evaluate, or to control as necessary, sources
or source categories on the basis that they are de minimis.\108\
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\106\ Addendum to the General Preamble, 59 FR 41998, August 16,
1994, at p. 42011; 81 FR 58010, August 24, 2016, at p. 58081.
\107\ Id.
\108\ 81 FR 58010, August 24, 2016, at p. 58082.
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Subsequently, for a State with a Serious PM2.5
nonattainment area that has failed to attain by the applicable
attainment date, the State must submit a revised attainment plan with a
control strategy that (1) demonstrates that each year the area will
achieve at least a 5 percent reduction in emissions of direct
PM2.5 or a 5 percent reduction in emissions of a
PM2.5 plan precursor based on the most recent emissions
inventory for the area and (2) includes such other additional control
measures necessary to achieve attainment as expeditiously as
practicable consistent with the attainment date requirements under 40
CFR 51.1004(a)(3).\109\ The regulation at 40 CFR 51.1010(c) required
the State to reconsider and reassess any measures previously rejected
by the State during the development of any Moderate area or Serious
area attainment plan control strategy for the area.
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\109\ CAA section 189(d), 42 U.S.C. 7513a(d), and 40 CFR
51.1010(c).
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Based on these requirements and interpretations, the EPA proposed
to disapprove Alaska's rejection of certain control for the mobile
source category (Measures 57, 60, and R20). Alaska's evaluation of
other transportation control measures consisted of a review of measures
evaluated as RACM for the Fairbanks Moderate Plan.\110\ Alaska
referenced the prior analysis as determining limited emission reduction
benefits from these measures. Alaska also referenced the EPA and FHWA
studies that indicated small emissions reductions from these
measures.\111\ In addition, while Alaska acknowledged that these
measures are technologically feasible in the analysis,\112\ it
concluded that the measures are not technologically feasible in the
Fairbanks area.\113\ Alaska did not re-evaluate this analysis or
conclusion as part of the Fairbanks 189(d) Plan.\114\
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\110\ State Air Quality Control Plan, Vol. III, Appendix
III.D.7.7 at p. 166 (November 19, 2019).
\111\ Id. at p. 167-168.
\112\ Id. at 168 (``With regard to the BACM finding,
transportation control measures are technologically feasible; they
have been implemented all over the country. That said, independent
studies have documented that while states and communities continue
to adopt them, where funding is available, growing experience in
lower-48 states has demonstrated emissions benefits are limited.'').
\113\ Id.
\114\ State Air Quality Control Plan, Vol. III, Appendix
III.D.7.7 at pp. 5435-538, adopted November 18, 2020.
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Alaska's evaluation of anti-idling programs (Measure 60) in the
Fairbanks Serious Plan consisted of a study of the effects on carbon
monoxide emissions of turning off a warmed-up vehicle compared to
leaving it running.\115\ Alaska concluded based on this study that
further study of PM2.5 emission reductions is necessary to
determine whether anti-idling programs are feasible. Nevertheless, ADEC
concluded that such a measure would produce no emissions benefit and
was, therefore, technologically infeasible. Alaska modified this
analysis slightly as part of the 189(d) Plan--drawing a connection
between low carbon monoxide (CO) emission benefits and low
PM2.5 benefits.\116\ Alaska ultimately concluded anti-idling
programs are technologically infeasible due to lack of evidence of
emission benefits.
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\115\ State Air Quality Control Plan, Vol. III, Appendix
III.D.7.7 at pp.105-106, adopted November 19, 2019.
\116\ State Air Quality Control Plan, Vol. III, Appendix
III.D.7.7 at pp. 5405-5406, adopted November 18, 2020.
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However, the emissions reduction benefit of a particular measure is
not a factor assessing whether the measure is
[[Page 84651]]
technologically feasible. Such considerations are more appropriate
under an economic feasibility assessment. Alaska did not assess the
economic feasibility of anti-idling programs or any of the other
transportation control measures as part of the Serious Area Plan or
189(d) Plan. The EPA notes, however, that Alaska submitted supplemental
infeasibility demonstrations as part of its comments.
Relatedly, the substantive basis for Alaska's rejection of these
measures was that they provided limited emissions benefits, such
benefits were difficult to quantify given the climate in Fairbanks,
and/or that additional studies were necessary to understand the
emissions reduction benefits. The EPA's position is that these are
inadequate reasons for rejecting otherwise feasible measures.
Response to Alaska's comment on inconsistent application of the
PM2.5 SIP Requirements Rule: The EPA disagrees with Alaska
that it interpreted and applied the PM2.5 SIP Requirements
Rule inconsistently with respect to the EPA's proposed disapproval of
Alaska's BACM analysis for the mobile source category. Contrary to
Alaska's assertions, a comparison of the EPA's actions on the South
Coast Air Quality Management Plan and 2018 San Joaquin Valley
PM2.5 Plan with the EPA's review of the Fairbanks Serious
Plan and Fairbanks 189(d) evinces the EPA's consistent application of
the CAA and PM2.5 SIP Requirements Rule.
On April 27, 2017, the California Air Resources Board (CARB)
submitted two SIP submissions to the EPA for the South Coast Serious
nonattainment area for the 2006 PM2.5 NAAQS.\117\ One such
submission was entitled Final 2016 Air Quality Management Plan (March
2017) (2016 AQMP) and contained, inter alia, control strategies for
mobile sources. The EPA proposed to approve these SIP submissions as
meeting CAA requirements for the 2006 PM2.5 24-hour NAAQS on
October 3, 2018.\118\ For the mobile source category, the EPA proposed
to approve the control strategy for numerous reasons.
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\117\ Approval and Promulgation of Implementation Plans;
California; South Coast Serious Area Plan for the 2006
PM2.5 NAAQS, 83 FR 49872, October 3, 2018, at p. 49873.
\118\ Id. at 49872. The EPA finalized approval on February 12,
2019. Approval and Promulgation of Implementation Plans; California;
South Coast Serious Area Plan for the 2006 PM2.5 NAAQS,
84 FR 3305, February 12, 2019, at p. 3308.
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According to the 2016 AQMP, CARB and other State agencies
implemented 24 individual mobile source and transportation control
measures, including school bus idling measures, school bus retrofit
program, and heavy-duty vehicle inspection program.\119\ Pursuant to a
SIP-approved transportation control measure selection and rollover
process,\120\ several government agencies in the South Coast area
implemented numerous major transportation control measures in South
Coast, including HOV lanes, regular transit bus, bus rapid and express
bus, transit rail, and bikeway projects.\121\Appendix IV-C of the 2016
AQMP includes a list of TCM projects that are specifically identified
and committed to in the plan, including, among many other types of
TCMs, traffic flow improvement projects.\122\
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\119\ 2016 AQMP at Appendix IV-C-29.
\120\ 40 CFR 52.220(c)(204)(i)(B)(2). The specific TCM selection
and rollover process is identified in the 1994 South Coast AQMP as
TCM-1 (``Transportation Improvements'').
\121\ 2016 AQMP at Appendix IV-C-34.
\122\ Id. at IV-C-51--IV-C-74.
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For the 2016 AQMP, in order to determine whether adoption of
additional controls on mobile sources was necessary to satisfy the BACM
requirement, the Southern California Association of Governments (SCAG)
surveyed other nonattainment areas. SCAG is the region's metropolitan
planning organization. SCAG found that, at the time of the survey, no
other nonattainment areas were implementing measures beyond what CARB,
SCAG and the local agencies already implemented.\123\ Thus, SCAG
reevaluated 24 measures previously rejected as RACM for potential
implementation as BACM.\124\ SCAG summarized its evaluation in Table 9
of Appendix IV-C of the 2016 AQMP. However, a more thorough analysis is
included as Attachment B to Appendix IV-C of the 2016 AQMP. A review of
Attachment B indicates that for each measure dismissed, SCAG correctly
cited a technological or economic infeasibility basis. For example,
SCAG evaluated numerous specific anti-idling measures and adopted some,
while determining that others raised safety concerns or were
economically infeasible.\125\
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\123\ Id. at IV-C-36--IV-C-40.
\124\ Id. at IV-C-40--IV-C-50.
\125\ Id. at 100-101.
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Alaska's comments appear to target measures that SCAG dismissed as
providing no emissions benefits as the crux of its inconsistency
argument. The EPA disagrees that SCAG's analysis or the EPA's
subsequent approval of California's SIP submission demonstrate
inconsistent application of the PM2.5 SIP Requirements Rule.
Measures that SCAG dismissed as providing no emissions benefits
included banning left turns, limiting excessive car dealership vehicle
starts, requiring pay-as-you drive insurance, and demolishing impounded
vehicles that are high emitters.\126\ SCAG noted that some left turns
were already banned and other rules incentivized destruction of high-
emitting vehicles.\127\ For a measure referred to as limiting excessive
car dealership starts, SCAG noted that car dealerships need to start
cars to avoid battery failure and that in contrast to colder climates
where vehicles are started on a daily basis, and the South Coast Air
Quality Management District had determined that vehicles in the South
Coast are started less frequently. For pay-as-you-drive insurance, SCAG
noted that there was no clear demonstration of emission reduction
benefits. Given this context, the EPA has consistently interpreted and
applied the PM2.5 SIP Requirements Rule in its action on the
2016 AQMP and proposed action on the Fairbanks Serious Plan and
Fairbanks 189(d) Plan.
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\126\ Id. at 43--50.
\127\ Id. at 43; 49.
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As for the San Joaquin PM2.5 Nonattainment area, on
March 27, 2020, the EPA proposed to approve the portions of the 2018
San Joaquin Valley Plan for the 1997, 2006, and 2012 PM2.5
Standards (2018 SJVAPCD Plan) and the San Joaquin Valley Supplement to
the 2016 State Strategy for the State Implementation Plan that pertain
to the 2006 24-hour PM2.5 NAAQS.\128\ The EPA finalized its
approval on July 22, 2020.\129\ The EPA determined that CARB's control
measures for the mobile source category constituted the most stringent
control program currently available.\130\ The 2018 SJVAPCD Plan
includes existing measures and CARB and San Joaquin Air Quality
Management District's identification and evaluation of additional
measures.\131\ The evaluation of mobile source controls is embodied in
Appendix D--Mobile Source Control Measure Analyses to the 2018 SJVAPCD
Plan. Notably, CARB implements the control measures Alaska rejected as
part of the Fairbanks Serious Plan and Fairbanks 189(d) Plan, including
a vehicle inspection program, school bus anti-idling measures (School
Bus Airborne Toxic Control Measure in effect since July 16, 2003),\132\
and a
[[Page 84652]]
Heavy-Duty Diesel Vehicle Idling Reduction Program.\133\
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\128\ Clean Air Plans; 2006 Fine Particulate Matter
Nonattainment Area Requirements; San Joaquin Valley, California; 85
FR 17382, March 27, 2020.
\129\ 85 FR 44192, July 22, 2020.
\130\ Clean Air Plans; 2006 Fine Particulate Matter
Nonattainment Area Requirements; San Joaquin Valley, California, 85
FR 17382, March 27, 2020, at p. 17404.
\131\ Id.
\132\ 2018 SJVAPCD Plan at Appendix D, D-42.
\133\ Id. at D-41 and D-42.
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Contrary to Alaska's assertion, CARB's BACM and MSM evaluation for
mobile sources and the EPA's approval of the resultant SIP submissions
indicates the EPA's consistent interpretation and application of the
PM2.5 SIP Requirements Rule. CARB demonstrated that for
multiple mobile sources, it had already adopted the most stringent
measures and committed to adopting additional measures. As with the
2016 AQMP, the EPA's action on the 2018 SJVAPCD Plan when compared to
its proposed action on the Fairbanks Serious Plan and Fairbanks 189(d)
does not indicate inconsistent interpretation or application of the
PM2.5 SIP Requirements Rule.
Response to Alaska's comment on prior SIP approvals: Regarding
controls included in the Fairbanks Moderate Plan, the commenters
correctly point out that the EPA previously approved the Moderate Plan,
including RACM for the mobile source category.\134\ The approved
measures included: Fairbanks North Star Borough Ordinance No. 2001-17
that requires employers or businesses that have 275 or more parking
spaces to provide power to electrical outlets at temperatures of 20
degrees F or lower for engine block heaters; expanded availability of
plug-ins; public education focused on the benefits of plugging-in and
using the transit program; expanded transit service; commuter van pool
program; anti-idling program for heavy-duty diesel vehicles focused on
the purchase and installation of auxiliary heaters to reduce idle time;
and the Federal motor vehicle control program.\135\
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\134\ 82 FR 42457, September 8, 2017.
\135\ 82 FR 42457, September 8, 2017; State Air Quality Control
Plan, Volume III, Appendix III.D.5.7-43, adopted December 24, 2014.
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Save for the Fairbanks North Star Borough Ordinance and the Federal
standards, these measures were designated as voluntary in the moderate
plan and the EPA's approval.\136\ These RACM, however, do not fully
satisfy the CAA BACM requirements. As part of the BACM evaluation
process, ADEC identified additional measures for the mobile source
category or reevaluated measures previously rejected as part of
development of the Moderate Plan. In accordance with 40 CFR 51.1010(a)
and (c), Alaska must either adopt those measures or provide a
demonstration that those measures are not technologically or
economically feasible. Alaska did not adopt all identified measures and
did not demonstrate that those measures were either technologically or
economically feasible consistent with the PM2.5 SIP
Requirements Rule. Therefore, the EPA proposed to disapprove the
Fairbanks Serious Plan and Fairbanks 189(d) plan, in part, on that
basis.
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\136\ State Air Quality Control Plan, Volume III, Appendix
III.D.5.7-24, adopted December 24, 2014; 82 FR 9035, February 2,
2017, at p. 9045.
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Response to Alaska's supplemental feasibility analyses: Turning to
ADEC's updated BACM analysis submitted as part of its comments, the EPA
finds that Alaska has demonstrated that constructing HOV lanes is
technologically infeasible at this time and anti-idling requirements on
heavy-duty diesel vehicles, traffic flow improvements, diesel retrofit
programs, and ridesharing programs are economically infeasible at this
time. The EPA evaluated Alaska's cost-effectiveness calculations and
confirmed the inputs and calculation methodology are sound and
reasonable. The EPA finds that Alaska has not demonstrated that anti-
idling requirements on light duty vehicles at schools and commercial
establishments are either technologically or economically infeasible.
Regarding anti-idling restrictions on heavy-duty diesel vehicles,
Alaska submitted, as part of its comments on our proposed action, an
economic infeasibility assessment that concluded that such a measure
has a cost per SO2 ton reduced of $455,675.88. Alaska based
its cost effectiveness calculations on information gained from a July
2011 anti-idling pilot project conducted by the Alaska Department of
Transportation & Public Facilities.\137\ According to its comments,
Alaska estimated the heavy-duty vehicle fleet PM2.5 idle
emission rates using the MOVES3 model. The costs of implementing the
program include purchasing and installing auxiliary heaters, such as
cab heaters and hydronic coolant heaters. Alaska's cost effectiveness
calculations appear sound. Thus, the EPA concurs with Alaska's
assessment that anti-idling restrictions on heavy-duty diesel vehicles
are economically infeasible at this time.
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\137\ State Air Quality Control Plan Vol. III, Appendix
III.D.7.7 at p.19, adopted November 19, 2019.
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With respect to vehicle anti-idling restrictions for light-duty
passenger vehicles at schools and commercial establishments, Alaska
commented that imposing such anti-idling restrictions would pose an
unacceptable safety risk. Alaska also included an economically
infeasibility assessment. With respect to safety risks, Alaska stated,
``ADEC has significant safety concerns regarding these measures. As was
evidenced during the Public Hearing in Fairbanks on March 9, 2023, when
temperatures are -20 to -60, idling is often done to ensure that small
children and infants aren't exposed to frostbite conditions or to
prevent cars from being stranded after being turned off without being
plugged in to a heat source.''
The EPA recognizes the potential safety risk posed to vehicle
occupants of an absolute prohibition on idling. However, Alaska need
not impose such a prohibition to adopt and implement idling
restrictions that satisfy controls strategy requirements for Serious
areas and Serious areas the fail to attain. A review of State and local
anti-idling restrictions illustrates a variety of approaches to
limiting idling.\138\ Many of these examples include idling duration
limits that vary depending on ambient temperature and provide
exemptions for safety.\139\ Likewise, Alaska may adopt an anti-idling
regulation that takes into consideration the unique local conditions in
the Fairbanks PM2.5 Nonattainment Area.
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\138\ U.S. Environmental Protection Agency, Office of
Transportation and Air Quality, Compilation of State, County, and
Local Anti-Idling Regulations, EPA420-B-06-004, April 2006,
available at https://www.epa.gov/sites/default/files/documents/CompilationofStateIdlingRegulations.pdf.
\139\ New Hampshire Administrative Code Env-A 1102.2 Idling
Limitations for Motor Vehicles (providing an exemption when
temperatures are below -10 [deg]F); Code of Village of Northport,
Sec. 289-2; City of Philadelphia Air Management Regulations Ch. IX,
Section III Idling of Diesel Powered Motor Vehicles.
---------------------------------------------------------------------------
Alaska did not provide data supporting the prevalence of cars
failing to start or run in cold weather in the Fairbanks nonattainment
area. The EPA searched for documentation of this issue and could not
find any studies or data. The EPA did find information that indicates
that frequent engine restarts have little impact on engine components
and unnecessary vehicle idling can damage engine components and waste
fuel.\140\
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\140\ State of Alaska Department of Transportation and Public
Facilities, Vehicle/Equipment Idle Reduction, Policy and Procedure
02.01.110, January 29, 2014, available at https://dot.alaska.gov/admsvc/pnp/local/dot-jnu_122970.pdf.
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The EPA reviewed the transcript from the public hearing for
statements regarding idling cars to protect children and cars being
stranded without being plugged into a heat source. The EPA found that
one commenter raised concerns about electric vehicles failing to work
in cold weather.\141\ However, this comment was contradicted by another
commenter who testified to
[[Page 84653]]
owning an electric car that functions in -30 [deg]F.\142\ Thus, Alaska
has not demonstrated that vehicle anti-idling restrictions for light-
duty passenger vehicles at schools or commercial establishments are
technologically infeasible. The EPA reiterates that Alaska may craft
the measure in a manner that accommodates safety concerns.
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\141\ EPA public hearing transcript, held on March 7, 2023, p.
22-23, included in docket for this action.
\142\ EPA public hearing transcript, held on March 7, 2023, p.
35, included in docket for this action.
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Regarding Alaska's economic infeasibility demonstration, Alaska
estimated that imposing vehicle anti-idling restrictions for light-duty
passenger vehicles at commercial establishments would have a cost
effectiveness of between $20,420,145 to $10,837,330,902. Alaska derived
these calculations in part by incorporating the annual salaries of two
Fairbanks North Star Borough employees to patrol parking lots to
enforce the program. Alaska estimated the annual salary of a Borough
employee at $105,929. Based on Alaska's calculations, these salary
costs are the dominant cost of the program.
Incorporating the cost of implementing and enforcing a control
strategy is inconsistent with the CAA and PM2.5 SIP
Requirements Rule. Pursuant to CAA section 110(a)(2)(E), the State is
required to provide necessary assurances that the State will have
adequate personnel, funding, and authority under State law to carry out
its implementation plan. In contrast, economic infeasibility
assessments are focused on the costs projected to be borne by the owner
and operator of the subject source.\143\ Setting aside the cost of
Borough employee salaries, the measure appears to yield cost savings
from estimated fuel savings. Thus, the EPA finds that Alaska has not
demonstrated that vehicle anti-idling restrictions for light-duty
passenger vehicles at commercial establishments and schools are
economically infeasible.
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\143\ 40 CFR 51.1010; 81 FR 58010, August 24, 2016, at p. 58085.
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Regarding constructing HOV lanes, the EPA finds Alaska's
technological infeasibility demonstration as supplemented in the
State's comments compelling. The EPA agrees this measure is
technologically infeasible taking into consideration local conditions,
including infrastructure, population, and traffic flow.
Regarding traffic flow improvements, Alaska determined that the
cost effectiveness of each of these projects exceeded $1 million per
ton of PM2.5 removed. Alaska referenced the July 20, 2020
Congestion Mitigation and Air Quality Improvement (CMAQ) Program 2020
Cost-Effectiveness Tables Update produced by the FHWA (CMAQ
Tables).\144\ According to the CMAQ Tables, traffic flow improvements
such as signal synchronization, roundabouts, and intersection
improvements ranged in cost $250,000 to $2.9 million which amounted to
a cost effectiveness of between $1,136,071 and $13,255,774 per ton of
PM2.5.\145\ Based on this information, the EPA concurs with
Alaska's determination that traffic flow improvements are economically
infeasible for the Fairbanks PM2.5 Nonattainment Area, at
this time.
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\144\ Office of the Natural Environment, Federal Highway
Administration, U.S. Department of Transportation, Congestion
Mitigation and Air Quality Improvement (CMAQ) Program 2020 Cost-
Effectiveness Tables Update, July 20, 2020, available at https://www.fhwa.dot.gov/ENVIRonment/air_quality/cmaq/reference/cost_effectiveness_tables/fhwahep20039.pdf.
\145\ Id. at 63-72.
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With respect to diesel retrofits, Alaska cited the CMAQ Table as a
basis for estimating a median cost effectiveness of $165,130 per ton of
PM2.5 reduced.\146\ The EPA verified these calculations in
the CMAQ Table and we concur with Alaska that diesel retrofits are
economically infeasible in the Fairbanks PM2.5 Nonattainment
Area, at this time.
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\146\ Id. at 75-82.
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Finally, ADEC cited the CMAQ Tables as evidence that ridesharing
programs are economically infeasible. Specifically, according to the
CMAQ Tables, ridesharing programs have a median cost effectiveness of
$6,010,024 per ton of PM2.5 reduced.\147\ The EPA verified
these calculations in the CMAQ Table and concur with Alaska that
ridesharing programs are economically infeasible, at this time.
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\147\ Id. at
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vi. Alaska's Identification and Adoption of BACT
a. Summary of Proposal
The EPA proposed to partially approve and partially disapprove
Alaska's identification and adoption of BACT for stationary sources.
The EPA proposed to approve most of Alaska's PM2.5 BACT
determinations for stationary sources but proposed to disapprove the
Fairbanks Serious Plan and Fairbanks 189(d) Plan due to lack of
monitoring, recordkeeping, and reporting requirements necessary to
ensure the BACT limits are enforceable as a practical matter. The EPA
proposed to partially approve and partially disapprove Alaska's
SO2 BACT determinations for the stationary sources.\148\
Finally, the EPA proposed to approve Alaska's NH3 BACT
determinations for all stationary sources. Details on the scope and
basis of the EPA's proposed partial approval and partial disapproval
are included in section III.C(3)(c) of the Proposal and will not be
restated here.
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\148\ On September 25, 2023, Alaska withdrew is SO2
BACT determinations and analysis for major stationary sources in the
Fairbanks PM2.5 Nonattainment Area.
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Alaska noted that large stationary sources are a subgroup of
emissions sources that have specific requirements in the BACM analysis.
Alaska evaluated all stationary sources with potential to emit (PTE)
greater than 70 tons per year (tpy) of PM2.5 or
PM2.5 precursors for potential BACT-level controls.
According to Alaska, sources with emissions below the 70 tpy threshold
only require evaluation for BACM. Alaska states that this emissions
threshold is in place to distinguish between the planning requirements
for certain sources emitting above and below this threshold and is
consistent with an emissions threshold in the 2016 PM2.5 SIP
Requirements Rule.\149\
---------------------------------------------------------------------------
\149\ The EPA notes that Alaska applied this threshold to
emissions units at the GVEA Zehnder facility.
---------------------------------------------------------------------------
The EPA disagrees with this assessment. All emissions sources
identified in the emissions inventory are subject to BACM requirements,
and the BACT evaluation process is merely a sub-set of BACM.
Accordingly, all sources of direct PM2.5 and
PM2.5 precursors are subject to BACM and BACT requirements
regardless of PTE. There is no PTE threshold below which BACT
requirements do not apply. The 70 tons per year PTE threshold cited by
Alaska only has relevance in determining whether a new stationary
source proposed to be constructed in a nonattainment area meets the
definition of a major stationary source pursuant to the nonattainment
new source review provisions.\150\
---------------------------------------------------------------------------
\150\ 40 CFR 51.165(a)(1)(iv)(A)(1); see also 18 AAC 50.040(i).
---------------------------------------------------------------------------
b. Final Rule
Please see the following paragraphs addressing each stationary
source regarding the EPA's final determinations.
c. Comments and Responses
For a summary of relevant comments and the EPA's detailed responses
on this requirement, see the Response to Comments document included in
the docket for this action.\151\
---------------------------------------------------------------------------
\151\ Response to Comments Regarding Best Available Control
Technology Requirements on the Air Plan Partial Approval and Partial
Disapproval; AK, Fairbanks North Star Borough; 2006 24-hour
PM2.5 Serious Area and 189(d) Plan, EPA-R10-OAR-2022-
0115.
---------------------------------------------------------------------------
[[Page 84654]]
vii. Chena Power Plant
a. Summary of Proposal
The Chena Combined Heat and Power Plant (Chena Power Plant) is an
existing stationary source owned and operated by Aurora Energy, LLC,
which consists of four existing coal-fired boilers: three 76 million
British Thermal Units (MMBtu) per hour overfeed traveling grate stoker
type boilers and one 269 MMBtu per hour spreader-stoker type boiler
that burn coal to produce steam for heating and power (497 MMBtu per
hour combined).
The State's BACT determination for the Chena Power Plant evaluated
potential controls to reduce NOX, and PM2.5
emissions from its four coal-fired boilers.\152\ Regarding Alaska's
analysis for PM2.5 emission controls, Alaska noted that the
source currently uses the baghouse to achieve 99.9 percent capture
efficiency, but did not definitively determine this control was
required as BACT or submit for SIP approval an enforceable requirement
to operate the baghouse. Operation of the baghouse to achieve 99.9
percent capture efficiency is likely to be BACT for PM2.5
for this source, but the State must revise the SIP to include an
enforceable requirement to operate the baghouse to achieve this level
of control before we can determine whether BACT requirements are
satisfied. Therefore, the EPA proposed to disapprove Alaska's BACT
finding for PM2.5 for the four coal-fired boilers at the
Chena Power Plant.
---------------------------------------------------------------------------
\152\ On September 25, 2023, Alaska withdrew its BACT
determination and analysis for SO2 controls and emission
limits at the Chena Power Plant. Alaska evaluated potential
NOX controls for each emission unit, but because the EPA
is approving Alaska's determination that NOX emissions
are not significant for PM2.5 formation in the Fairbanks
nonattainment area, Alaska is not required to identify, adopt, or
implement BACM or BACT for NOx on any sources in the Fairbanks
PM2.5 Nonattainment Area. See 40 CFR 51.1006,
51.1010(a)(2)(ii).
---------------------------------------------------------------------------
For SO2 emission controls, the EPA proposed to
disapprove Alaska's infeasibility demonstrations on several grounds
that are detailed in the Proposal and are not restated here.
We proposed to approve Alaska's analysis that found no
NH3-specific emission controls for the sources at this
facility.
Table 5--Chena Power Plant BACT Summary
------------------------------------------------------------------------
Alaska's BACT determination, by
Pollutant source category
------------------------------------------------------------------------
Chena Power Plant, Aurora Energy, LLC
------------------------------------------------------------------------
Coal-fired boilers (EUs 4-7)--3 boilers rated 76 MMBtu per hour and 1
boiler rated 269 MMBtu per hour
------------------------------------------------------------------------
PM2.5............................. N/A (Alaska claims installed single
full steam baghouse is highest
rated control available, but no
PM2.5 BACT analysis or emission
limitation was submitted).
------------------------------------------------------------------------
Source: State Air Quality Control Plan, Vol. II, Chapter III.D.7.7,
Table 7.7-10 and Section 7.7.8.2.5.
b. Final Rule
The EPA is finalizing partial disapproval of the Fairbanks Serious
Plan and Fairbanks 189(d) Plan because the plans do not identify,
adopt, and implement BACT for PM2.5 and SO2 for
the Chena Power Plant. The EPA is finalizing approval of Alaska's BACT
analysis for NH3 emission controls for the Chena Power
Plant.
c. Comments and Responses
For a summary of relevant comments and the EPA's detailed
responses, see the Response to Comments document for this requirement,
included in the docket for this action.\153\
---------------------------------------------------------------------------
\153\ Response to Comments Regarding Best Available Control
Technology Requirements on the Air Plan Partial Approval and Partial
Disapproval; AK, Fairbanks North Star Borough; 2006 24-hour
PM2.5 Serious Area and 189(d) Plan, EPA-R10-OAR-2022-
0115.
---------------------------------------------------------------------------
viii. Fort Wainwright
a. Summary of Proposal
Fort Wainwright is an existing U.S. Army installation. Emission
units located within the military installation include boilers and
generators that are owned and operated by the U.S. Army Garrison Alaska
(referred to as FWA). The Central Heating and Power Plant (CHPP), also
located within the installation footprint, is owned and operated by
Doyon Utilities, LLC (DU), a subsidiary of Doyon, Limited. Doyon,
Limited is the regional Alaska Native corporation for Interior Alaska.
The two entities, DU and FWA, comprise a single stationary source
operating under two permits.
The CHPP is comprised of six spreader-stoker type coal-fired
boilers each rated at 230 MMBtu per hour, that burn coal to produce
steam for stationary source-wide heating and power. In addition to the
CHPP, the source contains additional emission units comprised of small
and large emergency engines, fire pumps and generators, diesel-fired
boilers, and material handling equipment. Alaska's BACT analysis
evaluated potential controls to reduce NOX and
PM2.5, emissions from each of these emissions units at the
stationary source.\154\
---------------------------------------------------------------------------
\154\ On September 25, 2023, Alaska withdrew its BACT
determination and analysis for SO2 controls and emission
limits at Fort Wainwright. Alaska evaluated potential NOX
controls for each emission unit, but because the EPA is approving
Alaska's determination that NOX emissions are not
significant for PM2.5 formation in the Fairbanks
nonattainment area, Alaska is not required to identify, adopt, or
implement BACM or BACT for NOX on any sources in the
Fairbanks PM2.5 Nonattainment Area. See 40 CFR 51.1006,
51.1010(a)(2)(ii).
Table 6--Fort Wainwright BACT Summary
------------------------------------------------------------------------
Alaska's BACT determination, by
Pollutant source category
------------------------------------------------------------------------
Fort Wainwright, Doyon Utilities
------------------------------------------------------------------------
Coal-fired boilers (EUs 1-6)--each unit rated 230 MMBtu per hour
------------------------------------------------------------------------
PM2.5............................. Operate and maintain a full
stream baghouse at all times the
units are in operation;
PM2.5 emissions from DU EUs
1 through 6 shall not exceed 0.045
lb/MMBtu over a 3-hour averaging
period; and
[[Page 84655]]
Conduct an initial
performance test to obtain an
emission rate.
------------------------------------------------------------------------
Diesel-fired oil boilers (27 emissions units)
------------------------------------------------------------------------
PM2.5............................. PM2.5 emissions from the
diesel-fired boilers shall not
exceed 0.012 lb/MMBtu averaged over
a 3-hour period, with the exception
of the waste fuel boilers which
must comply with the State
particulate matter emissions
standard of 0.05 grains per dry
standard cubic foot under 18 AAC
50.055(b)(1);
Limit combined operation of
FWA EUs 8, 9, and 10 to 600 hours
per year; and
Maintain good combustion
practices by following the
manufacturer's maintenance
procedures at all times of
operation.
------------------------------------------------------------------------
Large diesel-fired engines, fire pumps, and generators (8 emissions
units; greater than 500 horsepower)
------------------------------------------------------------------------
PM2.5............................. Limit combined operation of
FWA EUs 11, 12, and 13 to 600 hours
per year;
Limit operation of DU EU 8
to 500 hours per year;
PM2.5 emissions from DU EU
8, FWA EUs 50, 51, and 53 shall not
exceed 0.15 g/hp-hr;
PM2.5 emissions from FWA
EUs 11 through 13 and 54 shall not
exceed 0.32 g/hp-hr;
Limit non-emergency
operation of FWA EUs 50, 51, 53,
and 54 to no more than 100 hours
each per year;
Combust only ULSD; and
Maintain good combustion
practices by following the
manufacturer's operating and
maintenance procedures at all times
of operation.
------------------------------------------------------------------------
Small emergency engines, fire pumps, and generators (41 emissions units)
------------------------------------------------------------------------
PM2.5............................. Combust only ULSD;
Limit non-emergency
operation of DU EUs 9, 12, 14, 22,
23, 29a, 30, 31a, 32, 33, 34, 35,
36, FWA EUs 26 through 39, and 55
through 65 to no more than 100
hours each per year;
For engines manufactured
after the applicability dates of 40
CFR part 60 Subpart IIII, comply
with the applicable particulate
matter emission standards in 40 CFR
part 60 Subpart IIII;
Maintain good combustion
practices by following the
manufacturer's operating procedures
at all times of operation; and
Demonstrate compliance with
the numerical BACT emission limits
(emission limit of 0.015-1 g/hp-hr
(3-hour average) varies by emission
unit, listed in the State Air
Quality Control Plan, Vol II,
Chapter III.D.7.7, Table 7.7-13) by
maintaining records of maintenance
procedures conducted in accordance
with 40 CFR parts 60 and 63, and
the EU operating manuals.
------------------------------------------------------------------------
Material handling sources (6 emissions units; coal prep and ash
handling)
------------------------------------------------------------------------
PM2.5............................. PM2.5 emissions from the
material handling equipment EUs 7a-
7c, 51a, and 51b shall be
controlled by operating and
maintaining fabric filters at all
times the units are in operation;
PM2.5 emissions from DU EU
7a shall not exceed 0.0025 gr/dscf;
PM2.5 emissions from DU EUs
7b, 7c, 51a, and 51 b shall not
exceed 0.02 gr/dscf;
PM2.5 emissions from DU EU
52 shall not exceed 1.42 tpy.
Continuous compliance with the
PM2.5 emissions limit shall be
demonstrated by complying with the
fugitive dust control plan
identified in the applicable
operating permit issued to the
source in accordance with 18 AAC 50
and AS 46.14; and
Compliance with the PM2.5
emission rates for the material
handling units shall be
demonstrated by following the
fugitive dust control plan and the
manufacturer's operating and
maintenance procedures at all times
of operation.
------------------------------------------------------------------------
Source: State Air Quality Control Plan, Vol II, Chapter III.D.7.7, Table
7.7-11 and Chapter III.D.7.7.8.3.4.
The EPA proposed to disapprove Alaska's BACT determination for
PM2.5 and SO2 controls for each of the emission
sources at the CHPP. Regarding PM2.5 controls for the coal-
fired boilers and material handling equipment and PM2.5 and
SO2 controls for the small and large emergency engines, fire
pumps, and generators, and diesel-fired boilers, the EPA proposed to
find Alaska's BACT determinations are appropriate. However, Alaska did
not submit source-specific permits or rules with monitoring,
recordkeeping, and reporting (MRR) requirements necessary to make these
BACT requirements enforceable as a practical matter. Therefore, the EPA
proposed to disapprove the BACT determination for these sources as not
meeting the CAA requirement that the SIP include enforceable emission
limitations. The EPA stated in the Proposal that Alaska may rectify
this issue by submitting the MRR requirements necessary (such as the
requirements included in the current operating permit) to ensure the
BACT requirements are enforceable as a practical matter.
Regarding SO2 emission controls, the EPA proposed to
disapprove Alaska's SO2 BACT determinations and associated
infeasibility demonstrations on several grounds that are detailed in
the Proposal and are not restated here.
The EPA proposed to approve Alaska's analysis that found no
NH3-specific emission controls for the sources at this
facility.
b. Final Rule
The EPA is finalizing a partial approval and partial disapproval of
the Fairbanks Serious Plan BACT provisions for PM2.5
controls for each of the emission sources at Fort Wainwright. The EPA
is finalizing a partial approval because Alaska's BACT findings for
PM2.5 (embodied in State Air Quality Control Plan, Vol. II,
Chapter III.D.7.7, Tables 7.7-11 and 7.7-13 and Chapter
III.D.7.7.8.3.4) are consistent with CAA section 189(b) and 40 CFR
51.1010(a). The EPA is finalizing a partial disapproval because the
Fairbanks Serious Plan and Fairbanks 189(d) Plan lack provisions
necessary to ensure the BACT determinations for PM2.5 are
enforceable
[[Page 84656]]
as a practical matter as required by CAA Sections 110(a)(2)(A) and
172(c)(7).
On September 25, 2023, Alaska withdrew its SO2 BACT
determinations for Fort Wainwright. Therefore, the EPA is finalizing
partial disapproval of the Fairbanks Serious Plan and Fairbanks 189(d)
Plan because the plans do not identify, adopt, and implement BACT for
SO2 at Fort Wainwright. The EPA is finalizing approval of
Alaska's analysis that found no NH3-specific emission
controls for the sources at this facility.
c. Comments and Responses
For a summary of relevant comments and the EPA's detailed
responses, see the Response to Comments document for this requirement,
included in the docket for this action.\155\
---------------------------------------------------------------------------
\155\ Response to Comments Regarding Best Available Control
Technology Requirements on the Air Plan Partial Approval and Partial
Disapproval; AK, Fairbanks North Star Borough; 2006 24-hour
PM2.5 Serious Area and 189(d) Plan, EPA-R10-OAR-2022-
0115.
---------------------------------------------------------------------------
ix. University of Alaska Fairbanks Campus Power Plant
a. Summary of Proposal
The Fairbanks Campus Power Plant is an existing stationary source
owned and operated by University of Alaska Fairbanks (UAF) comprised of
a circulating fluidized bed (CFB) dual fuel-fired boiler (coal and
biomass) rated at 295.6 MMBtu per hour. UAF installed this emission
unit in 2016-2018.\156\ Other emission units at the source include a
13,266 horsepower (hp) backup diesel generator, 13 diesel-fired
boilers, one classroom engine, one diesel engine permitted but not yet
installed, and a coal handling system for the new dual-fuel fired
boiler.
---------------------------------------------------------------------------
\156\ The CFB dual fuel fired boiler replaced two coal-fired
boilers installed in 1962.
---------------------------------------------------------------------------
The State's BACT determination for the Fairbanks Campus Power Plant
evaluated potential controls to reduce NOX and
PM2.5 emissions from each of the emissions units at the
source.\157\
---------------------------------------------------------------------------
\157\ On September 25, 2023, Alaska withdrew its BACT
determination and analysis for SO2 controls and emission
limits at the University of Alaska Fairbanks Campus Power Plant.
Alaska evaluated potential NOX controls for each emission
unit, but because the EPA is approving Alaska's determination that
NOX emissions are not significant for PM2.5
formation in the Fairbanks nonattainment area, Alaska is not
required to identify, adopt, or implement BACM or BACT for
NOX on any sources in the Fairbanks PM2.5
Nonattainment Area. See 40 CFR 51.1006, 51.1010(a)(2)(ii).
Table 7--University of Alaska Fairbanks Campus Power Plant--BACT Summary
------------------------------------------------------------------------
Alaska's BACT determination, by
Pollutant source category
------------------------------------------------------------------------
University of Alaska Fairbanks
------------------------------------------------------------------------
Dual fuel-fired boiler (EU 113)--unit rated at 295 MMBtu per hour; coal
and woody biomass fuel; constructed in 2019.
------------------------------------------------------------------------
PM2.5............................. Operate and maintain fabric
filters at all times the unit is in
operation;
PM2.5 emissions from EU 113
shall not exceed 0.012 lb/MMBtu
over a 3-hour averaging period; and
Maintain good combustion
practices at all times of operation
by following the manufacturer's
operating and maintenance
procedures.
Conduct an initial
performance test to obtain an
emission rate.
------------------------------------------------------------------------
Mid-sized diesel-fired boilers (EUs 3 and 4)--each unit rated 180 MMBtu
per hour
------------------------------------------------------------------------
PM2.5............................. PM2.5 emissions from EUs 3
and 4 shall not exceed 0.012 lb/
MMBtu averaged over a 3-hour period
while firing diesel fuel;
PM2.5 emissions from EU 4
shall not exceed 0.0075 lb/MMBtu
averaged over a 3-hour period while
firing natural gas;
Maintain good combustion
practices at all times of operation
by following the manufacturer's
operating and maintenance
procedures; and
Limit NOX emissions from
EUs 4 and 8 to no more than 40 tons
per year combined.
------------------------------------------------------------------------
Small-sized diesel-fired boilers (EUs 19-21)--each unit rated 6 MMBtu
per hour
------------------------------------------------------------------------
PM2.5............................. Combined boilers operating
limit of no more than 19,650 hours
per year;
PM2.5 emissions from EUs 19-
21 shall not exceed 0.012 lb/MMBtu;
and
Maintain good combustion
practices by following the
manufacturer's operating and
maintenance procedures at all times
of operation.
------------------------------------------------------------------------
Large diesel-fired engine (EU 8)--unit rated 13,266 horsepower
------------------------------------------------------------------------
PM2.5............................. PM2.5 emissions from EU 8
shall be controlled by operating
positive crankcase ventilation and
combusting only low ash diesel at
all times of operation;
Limit NOX emissions from
EUs 4 and 8 to no more than 40 tons
per year combined;
Limit non-emergency
operation of EU 8 to no more than
100 hours per year; and
PM2.5 emissions from EU 8
shall not exceed 0.32 g/hp-hr
averaged over a 3-hour period.
------------------------------------------------------------------------
Small diesel-fired engines (EUs 23-24, 26-29)
------------------------------------------------------------------------
PM2.5............................. Limit the operation of EU
27 to no more than 4,380 hours per
year;
Limit non-emergency
operation of EUs 24, 28, and 29 to
no more than 100 hours per year
each;
EU 27 shall comply with the
Federal emission standards of NSPS
Subpart IIII, Tier 3;
Maintain good combustion
practices at all times of operation
by following the manufacturer's
operating and maintenance
procedures; and Demonstrate
compliance with the numerical BACT
emission limits (emission limit of
0.015-1 g/hp-hr (3-hour average)
varies by emission unit, listed in
State Air Quality Control Plan, Vol
II, Chapter III.D.7.7, Table 7.7-
18) by maintaining records of
maintenance procedures conducted in
accordance with 40 CFR parts 60 and
63, and the EU operating manuals.
------------------------------------------------------------------------
[[Page 84657]]
Pathogenic waste incinerator (EU 9a)--unit rated 533 lb per hour
------------------------------------------------------------------------
PM2.5............................. PM2.5 emissions from EU 9A
shall be controlled with a multiple
chamber design;
Limit the operation of EU
9A to no more than 109 tons of
waste combusted per year;
PM2.5 emissions from EU 9A
shall not exceed 4.67 lb/ton;
Maintain good combustion
practices at all times of operation
by following the manufacturer's
operating and maintenance
procedures; and
Compliance with the
proposed operational limit will be
demonstrated by recording pounds of
waste combusted for the pathogenic
waste incinerator.
------------------------------------------------------------------------
Material handling sources (EUs 105, 107, 109-111, 114, 128-130); coal
prep and ash handling
------------------------------------------------------------------------
PM2.5............................. PM2.5 emissions from EUs
105, 107, 109 through 111, 114, and
128 through 130 will be controlled
by enclosing each EU;
PM2.5 emissions from the
operation of the material handling
units, except EU 111, will be
controlled by installing,
operating, and maintaining fabric
filters and vents;
Initial compliance with the
emission rates for the material
handling units, except EU 111, will
be demonstrated with a performance
test to obtain an emission rate;
and
Comply with the numerical
emission limits (emission limit of
0.003--0.050 gr/dscf and .00005 lb/
ton (EU 111) varies by emission
unit listed in State Air Quality
Control Plan, Vol II, Chapter
III.D.7.7, Table 7.7-18--note
double citation)
------------------------------------------------------------------------
Source: State Air Quality Control Plan, Vol II, Chapter III.D.7.7, Table
7.7-16 and Chapter III.D.7.7.8.6.
The EPA proposed to disapprove Alaska's BACT provisions for
PM2.5 and SO2 controls for each of the emission
sources at the Fairbanks Campus Power Plant. Regarding PM2.5
controls for the dual fuel-fired boiler, backup diesel generator,
diesel-fired boilers, and material handling sources; the
PM2.5 and SO2 controls for the pathogenic waste
incinerator; and the SO2 controls for the diesel-fired
engines, we proposed to determine that Alaska's BACT determinations are
appropriate. However, Alaska did not submit as part of the Fairbanks
Serious Plan or Fairbanks 189(d) Plan the emission limits corresponding
to Alaska's SO2 or PM2.5 BACT determinations for
some emission units, Alaska also did not include the MRR requirements
necessary to make these BACT requirements enforceable as a practical
matter. Therefore, the EPA proposed to disapprove Alaska's
PM2.5 BACT requirements for these sources as not meeting the
CAA requirement that the SIP include enforceable emission limitations.
The EPA noted that Alaska may rectify this issue by submitting the
enforceable emission limitation and monitoring, recordkeeping, and
reporting requirements necessary to ensure the BACT requirements are
enforceable as a practical matter.\158\ The EPA also noted that the
source-specific SIP requirement for the material handling unit, EU 111,
should include the operational requirement that the building doors
remain closed at all times that ash loading is occurring. Corresponding
MRR conditions should be included to ensure no visible emissions escape
the building.
---------------------------------------------------------------------------
\158\ Alaska did not submit source-specific permits or
regulations at part of the Fairbanks Serious Plan or Fairbanks
189(d) Plan. Rather these SIP submissions contain narrative
provisions reflecting Alaska's BACT determinations, which list
emission limits and summarize monitoring requirements. For certain
BACT findings, Alaska in the narrative directs the owner and
operator of the source to apply for a permit to implement the
State's BACT determinations. Alaska could potentially rectify the
enforceability issues with the current SIP submissions by submitting
the resulting permits or portions thereof.
---------------------------------------------------------------------------
Regarding the EPA's proposed disapproval of Alaska's BACT
evaluation and determination for SO2 controls for the dual
fuel-fired boiler, the EPA based its proposed disapproval on several
grounds that are detailed in the Proposal and are not restated here.
The EPA proposed to approve Alaska's analysis that found no
NH3-specific emission controls for the sources at this
facility.
b. Final Rule
The EPA is finalizing disapproval of Alaska's BACT determination
for PM2.5 controls for the Small Diesel-Fired Engines (EU
IDs 23, 26, and 27). The EPA is finalizing a partial approval and
partial disapproval of the Fairbanks Serious Plan BACT provisions for
PM2.5 controls for the remaining emission units. The EPA is
finalizing a partial approval because Alaska's BACT determinations
embodied in State Air Quality Control Plan, Vol. II, Chapter III.D.7.7,
Table 7.7-16 and Chapter III.D.7.7.8.6 are consistent with CAA section
189(b) and 40 CFR 51.1010(a). The EPA is finalizing a partial
disapproval because the Fairbanks Serious Plan and Fairbanks 189(d)
Plan lack provisions necessary to ensure the BACT determinations are
enforceable as a practical matter as required by CAA sections
110(a)(2)(A) and 172(c)(7).\159\
---------------------------------------------------------------------------
\159\ See supra, note 158.
---------------------------------------------------------------------------
On September 25, 2023, Alaska withdrew its SO2 BACT
determinations for the Fairbanks Campus Power Plant. Therefore, the EPA
is finalizing partial disapproval of the Fairbanks Serious Plan and
Fairbanks 189(d) Plan because the plans do not identify, adopt, and
implement BACT for SO2 at the Fairbanks Campus Power Plant.
The EPA is finalizing approval of Alaska's analysis that found no
NH3-specific emission controls for the sources at this
facility.
c. Comments and Responses
For a summary of relevant comments and the EPA's detailed
responses, see the Response to Comments document for this requirement,
included in the docket for this action.\160\
---------------------------------------------------------------------------
\160\ Response to Comments Regarding Best Available Control
Technology Requirements on the Air Plan Partial Approval and Partial
Disapproval; AK, Fairbanks North Star Borough; 2006 24-hour
PM2.5 Serious Area and 189(d) Plan, EPA-R10-OAR-2022-
0115.
---------------------------------------------------------------------------
x. Zehnder Facility
a. Summary of Proposal
The Zehnder Facility (Zehnder) is an electric generating facility
that combusts distillate fuel in combustion turbines to provide power
to the Golden Valley Electric Association (GVEA) grid. The power plant
contains two fuel oil-fired simple cycle gas combustion turbines and
two diesel-fired generators (electro-motive diesels) used for emergency
[[Page 84658]]
power and to serve as black start engines for the GVEA generation
system. The primary fuel is stored in two 50,000 gallon above ground
storage tanks. Turbine startup fuel and electro-motive diesel primary
fuel is stored in a 12,000 gallon above ground storage tank.
Alaska's BACT analysis for Zehnder evaluated potential controls to
reduce NOX and PM2.5 emissions from its simple
cycle gas turbines, large diesel-fired engines, and diesel-fired
boilers.\161\
---------------------------------------------------------------------------
\161\ On September 25, 2023, Alaska withdrew its BACT
determination and analysis for SO2 controls and emission
limits at Zehnder. Alaska evaluated potential NOX
controls for each emission unit, but because the EPA is approving
Alaska's determination that NOX emissions are not
significant for PM2.5 formation in the Fairbanks
nonattainment area, Alaska is not required to identify, adopt, or
implement BACM or BACT for NOX on any sources in the
Fairbanks PM2.5 Nonattainment Area. See 40 CFR 51.1006,
51.1010(a)(2)(ii).
Table 8--Zehnder Facility BACT Summary
------------------------------------------------------------------------
Alaska's BACT determination, by
Pollutant source category
------------------------------------------------------------------------
Zehnder facility, Golden Valley Electric Authority
------------------------------------------------------------------------
Fuel oil-fired simple cycle gas turbine (EUs 1 and 2)--each unit rated
268 MMBtu per hour
------------------------------------------------------------------------
PM2.5............................. Combust only low ash fuel;
PM2.5 emissions from EUs 1
& 2 shall not exceed 0.012 lb/MMBtu
over a 3-hour averaging period;
Initial compliance with the
proposed PM2.5 emission limit will
be demonstrated by conducting a
performance test to obtain an
emission rate; and
Maintain good combustion
practices by following the
manufacturer's operating and
maintenance procedures at all times
of operation.
------------------------------------------------------------------------
Diesel-fired emergency generators (EUs 3 and 4)--each unit rated 28
MMBtu per hour
------------------------------------------------------------------------
PM2.5............................. Limit non-emergency
operation of the large diesel-fired
engines to no more than 100 hours
per year each;
PM2.5 emissions from EUs 3
and 4 shall not exceed 0.32 g/hp-hr
over a 3-hour averaging period;
Demonstrate compliance with
the numerical BACT emission limit
by complying with 40 C.F.R 63
Subpart ZZZZ; and
Maintain good combustion
practices by following the
manufacturer's operating and
maintenance procedures at all times
of operation.
------------------------------------------------------------------------
Diesel-fired boilers (EUs 10 and 11)--each unit rated 1.7 MMBtu per hour
------------------------------------------------------------------------
PM2.5............................. PM2.5 emissions shall not
exceed 0.012 lb/MMBtu over a 3-hour
averaging period;
Demonstrate compliance with
the numerical BACT emission limit
by complying with 40 CFR part 63
Subpart JJJJJJ; and
Maintain good combustion
practices by following the
manufacturer's operating and
maintenance procedures at all times
of operation.
------------------------------------------------------------------------
Source: State Air Quality Control Plan, Vol II, Chapter III.D.7.7, Table
7.7-14 and Chapter III.D.7.7.8.4.
The EPA proposed to disapprove Alaska's BACT determination for
PM2.5 and SO2 controls for each of the emission
sources at the Zehnder facility. Regarding PM2.5 controls
for the two fuel oil-fired simple cycle gas combustion turbines, two
diesel-fired generators, and two diesel fired boilers, the EPA found
Alaska's BACT determinations were appropriate. However, Alaska did not
include the MRR requirements necessary to make these BACT requirements
enforceable as a practical matter. Therefore, the EPA proposed to
disapprove Alaska's PM2.5 BACT requirements for these
sources as not meeting the CAA requirement that the SIP include
enforceable emission limitations. The EPA noted that Alaska can rectify
this issue by submitting the emission limit, monitoring, recordkeeping,
and reporting requirements necessary to ensure the BACT requirements
are enforceable as a practical matter.\162\
---------------------------------------------------------------------------
\162\ See supra, note 158.
---------------------------------------------------------------------------
The EPA proposed to disapprove Alaska's BACT determinations and
analysis for SO2 controls for each of the emissions units.
The basis for EPA's proposed disapproval is included in the Proposal
and is not restated here.
The EPA proposed to approve Alaska's analysis that found no
NH3-specific emission controls for the sources at this
facility.
b. Final Rule
The EPA is finalizing partial approval and partial disapproval of
the Fairbanks Serious Plan BACT provisions for PM2.5
controls for all emission units at Zehnder. The EPA is finalizing a
partial approval because Alaska's BACT determinations embodied in State
Air Quality Control Plan, Vol. II, Chapter III.D.7.7, Table 7.7-14 and
Chapter III.D.7.7.8.4 are consistent with CAA section 189(b) and 40 CFR
51.1010(a). The EPA is finalizing a partial disapproval because the
Fairbanks Serious Plan and Fairbanks 189(d) Plan lack provisions
necessary to ensure the PM2.5 BACT determinations are
enforceable as a practical matter as required by CAA sections
110(a)(2)(A) and 172(c)(7).
On September 25, 2023, Alaska withdrew its SO2 BACT
determinations for Zehnder. Therefore, the EPA is finalizing partial
disapproval of the Fairbanks Serious Plan and Fairbanks 189(d) Plan
because the plans do not identify, adopt, and implement BACT for
SO2 at Zehnder. The EPA is finalizing approval of Alaska's
analysis that found no NH3-specific emission controls for
the sources at this facility.
c. Comments and Responses
For a summary of relevant comments and the EPA's detailed
responses, see the Response to Comments document for this requirement,
included in the docket for this action.\163\
---------------------------------------------------------------------------
\163\ Response to Comments Regarding Best Available Control
Technology Requirements on the Air Plan Partial Approval and Partial
Disapproval; AK, Fairbanks North Star Borough; 2006 24-hour
PM2.5 Serious Area and 189(d) Plan, EPA-R10-OAR-2022-
0115.
---------------------------------------------------------------------------
[[Page 84659]]
xi. North Pole Power Plant
a. Summary of Proposal
The North Pole Power Plant is an electric generating facility that
combusts distillate fuel in combustion turbines to provide power to the
GVEA grid. The power plant contains two fuel oil-fired simple cycle gas
combustion turbines, two fuel oil-fired combined cycle gas combustion
turbines, one fuel oil-fired emergency generator, and two propane-fired
boilers. The State's BACT determination for the North Pole Power Plant
evaluated potential controls to reduce NOX and
PM2.5 emissions from its simple cycle gas turbines, combined
cycle gas turbines, large diesel-fired engines, and propane-fired
boilers.\164\
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\164\ On September 25, 2023, Alaska withdrew its BACT findings
and analysis for SO2 controls and emission limits at the
North Pole Power Plant. Alaska evaluated potential NOX
controls for each emission unit, but because the EPA is approving
Alaska's determination that NOX emissions are not
significant for PM2.5 formation in the Fairbanks
nonattainment area, Alaska is not required to identify, adopt, or
implement BACM or BACT for NOX on any sources in the
Fairbanks PM2.5 Nonattainment Area. See 40 CFR 51.1006,
51.1010(a)(2)(ii).
Table 9--North Pole Power Plant BACT Summary
------------------------------------------------------------------------
Alaska's BACT determination, by
Pollutant source category
------------------------------------------------------------------------
North Pole Power Plant, Golden Valley Electric Authority
------------------------------------------------------------------------
Fuel oil-fired simple cycle gas turbine (EUs 1 and 2)--each unit rated
672 MMBtu per hour PM2.5 potential to emit tons per year
------------------------------------------------------------------------
PM2.5............................. Combust only low ash fuel;
Maintain good combustion
practices at all times of operation
by following the manufacturer's
operating and maintenance
procedures;
PM2.5 emissions from EUs 1
& 2 shall not exceed 0.012 lb/MMBtu
over a 3-hour averaging period; and
Initial compliance with the
proposed PM2.5 emission limit will
be demonstrated by conducting a
performance test to obtain an
emission rate.
------------------------------------------------------------------------
Fuel oil-fired combined cycle gas turbine (EUs 5 and 6)--each unit rated
455 MMBtu per hour
------------------------------------------------------------------------
PM2.5............................. PM2.5 emissions from EUs 5
and 6 shall be limited by complying
with the combined annual NOX limit
listed in Operating Permit
AQ0110TVP03 Conditions 13 and 12,
respectively;
PM2.5 emissions from EUs 5
& 6 shall not exceed 0.012 lb/MMBtu
over a 3-hour averaging period;
Initial compliance with the
proposed PM2.5 emission limit will
be demonstrated by conducting a
performance test to obtain an
emission rate; and
Maintain good combustion
practices at all times of operation
by following the manufacturer's
operating and maintenance
procedures.
------------------------------------------------------------------------
Large diesel-fired engine (EU 7)--unit rated 400 kW/619 horsepower
------------------------------------------------------------------------
PM2.5............................. PM2.5 emissions from EU 7
shall be controlled by operating
with positive crankcase
ventilation;
PM2.5 emissions from EU 7
shall be controlled by limiting
operation to no more than 52 hours
per 12 month rolling period;
PM2.5 emissions from EU 7
shall not exceed 0.32 g/hp-hr over
a 3-hour averaging period; and
Maintain good combustion
practices by following the
manufacturer's operating and
maintenance procedures at all times
of operation.
------------------------------------------------------------------------
Propane-fired boiler (EUs 11 and 12)--each unit rated 5 MMBtu per hour
------------------------------------------------------------------------
PM2.5............................. Burn only propane as fuel
in EUs 11 and 12;
PM2.5 emissions from EUs 11
and 12 shall not exceed 0.008 lb/
MMBtu over a 3-hour averaging
period; and
Compliance with the
emission limit will be demonstrated
with records of maintenance
following original equipment
manufacturer recommendations for
operation and maintenance and
periodic measurements of O2
balance.
Maintain good combustion
practices by following the
manufacturer's operating and
maintenance procedures at all times
of operation.
------------------------------------------------------------------------
Source: State Air Quality Control Plan, Vol II, Chapter III.D.7.7, Table
7.7-14 and Chapter III.D.7.7.8.5.
The EPA proposed to disapprove Alaska's Fairbanks Serious Plan and
Fairbanks 189(d) Plan BACT provisions for PM2.5 and
SO2 controls for each of the emission sources at the North
Pole Power Plant. Regarding PM2.5 controls for the two fuel
oil-fired simple cycle gas combustion turbines, two fuel oil-fired
combined cycle gas combustion turbines, and large diesel-fired engine
and PM2.5 the EPA proposed to find Alaska's BACT
determinations are appropriate. However, Alaska did not submit as part
of the Fairbanks Serious Plan or Fairbanks 189(d) Plan the enforceable
emission limits and associated MRR requirements needed for determining
compliance with all BACT limits or requirements and to make the limits
or requirements enforceable as a practical matter. Therefore, the EPA
proposed to disapprove Alaska's PM2.5 BACT requirements for
these sources as not meeting the CAA requirement that the SIP include
enforceable emission limitations. The EPA noted that Alaska can rectify
this issue by submitting the emission limits and monitoring,
recordkeeping, and reporting requirements necessary to ensure the BACT
requirements are enforceable as a practical matter.\165\
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\165\ See supra, note 158.
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Regarding SO2 controls, the EPA proposed to find
Alaska's BACT determination for SO2 controls at the two
propane-fired boilers embodied in State Air Quality were appropriate.
However, Alaska also did not submit the MRR requirements needed for
determining compliance with this BACT determination. The EPA proposed
to disapprove Alaska's SO2 BACT determinations for the
simple cycle gas turbines and combined-cycle on several
[[Page 84660]]
grounds included in the Proposal and not restated here.
The EPA proposed to approve Alaska's analysis that found no
NH3-specific emission controls for the sources at this
facility.
b. Final Rule
The EPA is finalizing partial approval and partial disapproval of
the Fairbanks Serious Plan BACT provisions for PM2.5
controls for all emission units at the North Pole Power Plant. The EPA
is finalizing a partial approval because Alaska's PM2.5 BACT
determinations embodied in State Air Quality Control Plan, Vol II,
Chapter III.D.7.7, Table 7.7-14 and Chapter III.D.7.7.8.5 are
consistent with CAA section 189(b) and 40 CFR 51.1010(a). The EPA is
finalizing a partial disapproval because the Fairbanks Serious Plan and
Fairbanks 189(d) Plan lack provisions necessary to ensure the BACT
determinations are enforceable as a practical matter as required by CAA
sections 110(a)(2)(A) and 172(c)(7).
On September 25, 2023, Alaska withdrew its SO2 BACT
determinations for the North Pole Power Plant. Therefore, the EPA is
finalizing partial disapproval of the Fairbanks Serious Plan and
Fairbanks 189(d) Plan because the plans do not identify, adopt, and
implement BACT for SO2 at the North Pole Power Plant.
The EPA is finalizing approval of Alaska's analysis that found no
NH3-specific emission controls for the sources at this
facility.
c. Comments and Responses
For a summary of relevant comments and the EPA's detailed
responses, see the Response to Comments document for this requirement,
included in the docket for this action.\166\
---------------------------------------------------------------------------
\166\ Response to Comments Regarding Best Available Control
Technology Requirements on the Air Plan Partial Approval and Partial
Disapproval; AK, Fairbanks North Star Borough; 2006 24-hour
PM2.5 Serious Area and 189(d) Plan, EPA-R10-OAR-2022-
0115.
---------------------------------------------------------------------------
xii. Alaska's Identification and Adoption of Additional Measures and
Demonstration of 5% Reduction in Emissions Pursuant to CAA Section
189(d)
a. Summary of Proposal
The Fairbanks 189(d) Plan included a reevaluation of previously
rejected control measures, as noted above. Alaska revised its control
strategy in two primary ways as an outgrowth of this reevaluation.
First, Alaska added a burn down period of 3 hours for solid fuel
heating devices that begins upon the effective date and time of a
curtailment announcement. Second, Alaska added specific requirements to
document economic hardship as part of a NOASH curtailment program
waiver for solid fuel devices.
As part of its reevaluation of control measures, Alaska provided
additional information for a number of control measures considered in
the BACM analysis. The Fairbanks 189(d) Plan included additional
consideration of banning installation of solid fuel devices in new
construction, limiting heating oil to ultra-low sulfur diesel, dry wood
requirements, emissions controls for small area sources, mobile
sources, and most stringent measures.\167\ However, Alaska did not
reevaluate BACT-level controls for stationary sources. Specifically,
there were a number of SO2 control technologies that were
evaluated and dismissed under the Fairbanks Serious Plan that were not
reconsidered in the Fairbanks 189(d) Plan. Therefore, the EPA proposed
to find that Alaska had not sufficiently met the requirement under CAA
section 189(d) to reevaluate additional measures that could lead to
expeditious attainment.\168\
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\167\ State Air Quality Control Plan, Vol. II, Chapter
III.D.7.7.12, adopted November 18, 2020.
\168\ See 40 CFR 51.1010(c)(2)(ii). On September 25, 2023,
Alaska withdrew its BACT determinations and analysis for
SO2 controls and emission limits at all major stationary
sources.
---------------------------------------------------------------------------
Regarding the requirement to demonstrate five percent annual
reductions, Alaska included in the Fairbanks 189(d) Plan a control
strategy analysis that demonstrates annual reductions of
PM2.5 are greater than five percent through 2024, Alaska's
projected attainment year. However, CAA section 189(d) and 40 CFR
51.1010(c)(4) and (5) require that the control strategy contain not
just measures required to achieve five percent annual reductions, but
all required BACM and additional measures that collectively achieve
attainment as expeditiously as practicable.
The EPA stated in the Proposal that Alaska did not adopt and
implement all available and required control measures as part of the
control strategy for either the Fairbanks Serious Plan or Fairbanks
189(d) Plan. Therefore, Alaska did not necessarily adopt and implement
all control measures that collectively achieve attainment as
expeditiously as possible. Thus, the EPA proposed to disapprove the
control strategy included in the Fairbanks 189(d) Plan as not meeting
the full requirements of CAA section 189(d) and 40 CFR 51.1010(c).
b. Final Rule
The EPA did not receive comments on these requirements and is
finalizing the disapproval as proposed.
4. Attainment Demonstration and Modeling
i. Summary of Proposal
The EPA proposed to determine that Alaska's attainment
demonstration did not fully meet CAA requirements. The EPA noted that
correct identification of the most expeditious attainment date requires
an evaluation based upon expeditious implementation of the required
emission controls. The EPA proposed to disapprove in part the Fairbanks
Serious Plan and Fairbanks 189(d) Plan because Alaska did not adopt all
control measures necessary to satisfy the BACM and BACT requirements
and the requirement to adopt all measures necessary to achieve
attainment as expeditiously as practicable. Therefore, the EPA could
not assess whether Alaska identified the expeditious attainment date
for modeling purposes.
Therefore, the EPA proposed to find that the attainment
demonstration in the Fairbanks 189(d) Plan does not meet the
requirements of 40 CFR 51.1011(b)(2). The EPA noted that Alaska is
currently engaged in a multi-year effort to develop a new Fairbanks
modeling platform, as outlined in State Air Quality Control Plan,
Appendix III.D.7.8 of the Fairbanks 189(d) Plan. The EPA made clear in
the Proposal that it continues to support Alaska's modeling efforts and
will review updated modeling and attainment analysis when submitted by
the State.
The EPA proposed to approve of the design value Alaska calculated
for modeling purposes. For base year modeling purposes, the 64.7
[micro]g/m\3\ four-year average value is appropriate as measured
between 2016-2019 at the Hurst Road monitor in the North Pole portion
of the Fairbanks Nonattainment Area. The base year emissions inventory
Alaska used for its attainment demonstration in the Fairbanks 189(d)
Plan represented one of the three years that the EPA used to determine
that the area failed to attain by the Serious area attainment date. We
stated that this base year is consistent with the requirements of 40
CFR 51.1011(b)(3).
Finally, the EPA proposed to partially disapprove Alaska's control
strategy as not meeting the requirements of CAA section 189(b) and 40
CFR 51.1010. Accordingly, the control strategies modeled as part of
Alaska's attainment demonstration are not consistent with the control
strategies required pursuant
[[Page 84661]]
to 40 CFR 51.1003 and 40 CFR 51.1010.\169\ For these reasons, the EPA
proposed to disapprove the attainment demonstration in the Fairbanks
189(d) Plan.
---------------------------------------------------------------------------
\169\ 40 CFR 51.1011(b)(4).
---------------------------------------------------------------------------
ii. Final Rule
The EPA is finalizing disapproval of the attainment demonstration
in the Fairbanks 189(d) Plan as not meeting the requirements of 40 CFR
51.1011(b).
iii. Comments and Responses
Comment: Alaska commented that it has been working since 2017 to
gather the necessary data and update known modeling deficiencies to
satisfy the EPA's modeling requirements. Alaska stated that the
Community Multiscale Air Quality (CMAQ) model is an EPA product upon
which Alaska relies to satisfy its planning duties under the CAA.
Alaska has been coordinating with the EPA and an international
consortium of scientists to update the known deficiencies in the model.
Alaska stated that after more than three years of interdisciplinary
coordination, Alaska is now able to produce an air quality model that
will rectify these known deficiencies. However, Alaska asserted that
the EPA's intention to finalize this action guarantees that Alaska's
work with the air quality model will ``never see the light of day''
because the EPA's final action sets into motion irreversible events
including a sanction clock and a Federal Implementation Plan (FIP)
clock that will expire before Alaska can complete the necessary
modeling work, seek public comment, and formally submit the model as a
SIP update to the EPA. Alaska noted that the EPA has made it clear in
its proposed action to the Fairbanks 189(d) Plan that the model in its
current state is not sufficient to meet the attainment demonstration
requirements in the PM2.5 SIP Requirements Rule, and the
timing of this proposed Consent Decree guarantees the outcome of
sanctions and a FIP.
Response: The EPA disagrees with Alaska that this final action
ensures the imposition of mandatory sanctions or promulgation of a FIP.
As discussed in the section IV of this preamble, the CAA provides time
for the State to rectify any SIP deficiency before sanctions are
triggered and before the EPA is required to promulgate a FIP. As
discussed in the Proposal and previously in this preamble, the primary
basis for the EPA's disapproval of the Fairbanks 189(d) Plan attainment
demonstration is that neither the Fairbanks Serious Plan nor the
Fairbanks 189(d) Plan fully meet the CAA control strategy requirements.
Alaska may rectify these issues by adopting the necessary control
requirements and incorporating the projected emissions reductions into
its modeled attainment demonstration.
With respect to improving the modeling platform used to produce the
attainment demonstration, the EPA supports Alaska's efforts to develop
a new modeling platform that addresses the identified deficiencies and
has worked closely with the State to develop a new modeling platform
for use in future attainment demonstrations. As detailed in Alaska's
Technical Modeling Report \170\ and per discussions between EPA Region
10 and ADEC staff, Alaska will begin the next round of attainment
demonstration modeling in late summer or fall 2023 using the new
modeling platform. Based on the effective date of this final action,
sanctions will not be imposed until 2025, leaving ample time for Alaska
to develop and submit an updated SIP. The EPA approval of the SIP,
which is the event that would stop the sanctions from being
implemented, requires that the submitted corrects all identified
deficiencies.
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\170\ Alaska Department of Environmental Conservation (DEC)
Division of Air Quality Technical Analysis Modeling Report for phase
1, 2, and 3 (Last Update February 10, 2023), available at https://dec.alaska.gov/media/25pfupho/121-technical-modeling-report-02-10-2023.pdf.
---------------------------------------------------------------------------
Comment: Alaska acknowledged that the modeling platform the State
used for the Fairbanks 189(d) Plan is outdated in that it does not
reflect the current state of scientific knowledge about meteorological
and photochemical processes contributing to PM2.5 formation
in Fairbanks. Additionally, Alaska stated that there is no quantitative
performance evaluation for the North Pole (Hurst Road) monitor because
there were not speciated PM2.5 data for the time period of
the model performance evaluation. Alaska noted that the modeling is
based on 2008 meteorological episodes that have not been updated or
replaced since development of the Moderate Area SIP.
Alaska noted that their Fairbanks modeling is now being updated to
include: the use of updated CMAQ and WRF configurations, updated
preprocessor modeling, model performance evaluation at both the Hurst
Road monitor in North Pole and NCORE monitor in Fairbanks based on
PM2.5 speciation data from those monitors, and updated
emission inventories. Alaska also stated that its updated model
performance evaluation is based on a new meteorological episode
representative of wintertime conditions in the nonattainment area.
Alaska further detailed the ongoing efforts to improve meteorological
model performance and update how atmospheric chemistry is coded into
the model, with the goal of enhancing the model's capability to
simulate secondary sulfate formation.
Alaska stated that with most modeling deficiencies resolved, Alaska
can now conduct a major stationary source SO2 sensitivity-
based precursor demonstration. Alaska concluded that the EPA should
avail itself of the discretion granted by the CAA and carefully
consider compelling new information to remedy the problems created by
the CMAQ model and delays inherent in working with that model.
Response: The EPA remains committed to working with Alaska on
improving the modeling platform used for attainment modeling in the
nonattainment area. The EPA agrees that model performance improvements
have likely resulted in a more robust modeling platform for SIP
modeling in the Fairbanks nonattainment area, and the EPA will review
the updated attainment demonstration when it submitted by the State as
part of a new SIP submission.
The EPA disagrees, however, with Alaska's assertion that updates to
the model are or have been a prerequisite to meeting all CAA planning
requirements for Serious PM2.5 Nonattainment Areas or
Serious PM2.5 Areas that Fail to Attain. In particular,
Alaska was required to identify, adopt, and implement BACM and BACT on
all sources of direct PM2.5 and PM2.5 precursors.
This requirement is generally independent of attainment needs. Per the
CAA and PM2.5 SIP Requirements Rule, Alaska was required to
adopt these controls before the Serious area attainment date of
December 31, 2019.\171\ After the Fairbanks PM2.5
Nonattainment Area failed to attain by December 31, 2019, Alaska was
required to adopt--by December 31, 2020--such additional measures as
necessary to achieve attainment as expeditiously as practicable.\172\
The updates to the modeling platform that Alaska is completing were not
necessary to adopting the controls required by the CAA.
---------------------------------------------------------------------------
\171\ CAA section 189(b)(1)(B); 40 CFR 51.1010(a) and 40 CFR
51.1011(b)(5).
\172\ CAA section 189(d); 40 CFR 51.1003(c)(2) and 40 CFR
51.1010(c).
---------------------------------------------------------------------------
Similarly, to the extent Alaska is making these updates to support
a future SO2 precursor demonstration,
[[Page 84662]]
this is not a required element of either a Serious plan or plan meeting
the requirements of CAA section 189(d). Precursor demonstrations are
optional components of these plans.\173\ The EPA further notes that it
considers the State's overall control strategy and attainment
demonstration when determining the approvability of any
PM2.5 precursor demonstration for a nonattainment area.
---------------------------------------------------------------------------
\173\ 40 CFR 51.1006.
---------------------------------------------------------------------------
Source apportionment studies of the region \174\ have shown that
sulfate is a substantial contributor to measured PM2.5
concentrations in the nonattainment area. The EPA recognizes that
modeling deficiencies were the primary reason that Alaska chose not to
submit a major stationary source SO2 precursor demonstration
as part of the Fairbanks Serious Plan or Fairbanks 189(d) Plan.
However, without additional analysis, data, or information submitted as
a SIP revision, neither the Fairbanks Serious Plan nor the Fairbanks
189(d) Plan contain support for the hypothesis that major stationary
sources of SO2 do not significantly contribute to measured
sulfate concentrations in the nonattainment area.
---------------------------------------------------------------------------
\174\ Kotchenruther (2016). Source apportionment of
PM2.5 at multiple Northwest U.S. sites: Assessing
regional winter wood smoke impacts from residential wood combustion.
Atmospheric Environment, 142, 210-219. Available at: https://doi.org/10.1016/j.atmosenv.2016.07.048. Ward (2013). The Fairbanks,
Alaska PM2.5 Source Apportionment Research Study Winters
2005/2006-2012/2013, and Summer 2012. University of Montana-Missoula
Center for Environmental Health Sciences. Available at: https://dec.alaska.gov/air/anpms/communities/fbks-pm2-5-science/.
---------------------------------------------------------------------------
As mentioned by the State, the ALPACA research study may result in
peer-reviewed journal articles that provide insights on sulfate sources
and chemistry in the nonattainment area. The EPA would weigh these
peer-reviewed studies along with model performance, precursor model
runs, and other available data and information when evaluating a major
stationary source SO2 precursor demonstration submitted as a
SIP revision.
5. Reasonable Further Progress
i. Summary of Proposal
In the Proposal, the EPA explained that Alaska withdrew and
replaced the State Air Quality Control Plan, Chapter III.D.7.10, as
part of submission of the Fairbanks 189(d) Plan. The RFP provisions
included in the Fairbanks189(d) Plan are based on Alaska's proposed
control strategy designed to meet the requirements of CAA sections
189(b) and 189(d), and 40 CFR 51,1010(a) and (c), based on a projected
attainment date of 2024. Therefore, the approvability of the plan with
respect to RFP requirements is dependent, in part, on the approvability
of the control strategy and attainment demonstration. Specifically, to
meet the RFP requirement, the State must include a schedule describing
the implementation of control measures required by 40 CFR 51.1010.\175\
Moreover, the RFP projected emissions for each milestone year must be
based on the anticipated implementation schedule for control measures
required by 40 CFR 51.1010.\176\ Thus, if the control strategy does not
include all required control measures, then the RFP provisions will be
deficient.
---------------------------------------------------------------------------
\175\ 40 CFR 51.1012(a)(1).
\176\ 40 CFR 51.1012(a)(2).
---------------------------------------------------------------------------
Similarly, in the Proposal, the EPA stated that the purpose of the
RFP requirement is to demonstrate that the attainment plan will achieve
annual incremental reductions in emissions between the base year and
the attainment date that is as expeditious as practicable.\177\
Accordingly, if the attainment year does not reflect the most
expeditious year practicable, then the State's evaluation of RFP will
not accurately project progress towards the most expeditious attainment
year. The EPA proposed to disapprove Alaska's attainment demonstration
and to partially disapprove Alaska's control strategy. Therefore, the
EPA proposed to disapprove the Fairbanks 189(d) Plan with respect to
RFP requirements.
---------------------------------------------------------------------------
\177\ 40 CFR 51.1012(a).
---------------------------------------------------------------------------
ii. Final Rule
The EPA is finalizing disapproval of the RFP provisions of the
Fairbanks 189(d) Plan as proposed.
iii. Comments and Responses
Comment: Alaska cross referenced its comments regarding precursor
demonstration and attainment demonstrations.
Response: The EPA incorporates its responses to Alaska comments
regarding the optional SO2 precursor demonstration and
attainment demonstrations here. Given the inherent interrelationships
between the control strategy, modeled attainment demonstration, and
RFP, the deficiencies in the control strategy and attainment
demonstration discussed in the Proposal and previously in this preamble
render the RFP provisions of the Fairbanks 189(d) plan similarly
deficient.\178\
---------------------------------------------------------------------------
\178\ See 40 CFR 51.1012.
---------------------------------------------------------------------------
Comment: One commenter noted that the EPA only allows the State to
take credit for 50 percent compliance, but it should be 90 percent and
the State ought to be held to this number.
Response: The EPA interprets the comment as referring to the RFP
provisions of the Fairbanks 189(d) Plan in which Alaska projected 50%
compliance with the solid fuel burning device curtailment program.\179\
Specifically, Alaska projected 50% compliance with the curtailment
program by 2026.\180\ First, the EPA did not impose this number.
Rather, Alaska projected this number based on its assessment of the
compliance rate and taking into consideration that curtailments do not
necessarily apply to all portions of the nonattainment area at the same
time.\181\ The EPA is not approving the RFP provisions as a whole and
expects Alaska to re-evaluate the compliance rate in a subsequent SIP-
submission. The EPA will evaluate the projection at that time. The EPA
takes no position at this time as to whether the RFP provisions must
assume a 90 percent compliance rate for the curtailment program. Any
compliance rate must be supported by facts, and reasonable assumptions
about future compliance. The EPA does note, however, that better
compliance with the curtailment program will translate into significant
reductions in direct PM2.5 emissions. The EPA, thus,
supports all efforts to fully implement and enforce this measure.
---------------------------------------------------------------------------
\179\ State Air Quality Control Plan Volume II, Chapter
III.D.7.10, at p. 9, adopted November 18, 2020.
\180\ Id.
\181\ Id. at Vol. III, Appendix III.D.7.10 Fairbanks 5% Plan SIP
Control Measures Benefits Spreadsheet.
---------------------------------------------------------------------------
6. Quantitative Milestones
i. Summary of Proposal
The EPA noted in the Proposal that, similar to the RFP
requirements, Alaska withdrew and resubmitted State Air Quality Control
Plan, Vol II, Chapter III.D.7.10 as part of submission of the Fairbanks
189(d) Plan. The quantitative milestones (QMs) are based on Alaska's
proposed control strategy and attainment date of 2024. Therefore, the
approvability of the QMs is dependent, in part, on the approvability of
the control strategy and modeled attainment demonstration.
Specifically, if the control strategy does not include all required
control measures, then the QMs will necessarily be deficient. The EPA
noted that Alaska will need to submit a new attainment demonstration
with a new projected attainment date, and by extension, reevaluate
whether the QMs for each milestone year are appropriate. The control
strategy did not
[[Page 84663]]
contain all required control measures. Therefore, the QMs are, by
extension, deficient. Thus, the EPA proposed to disapprove the State
Air Quality Control Plan, Vol II, Chapter III.D.7.10, with respect to
QMs.
ii. Final Rule
The EPA did not receive any comments on this requirement and is
finalizing disapproval of the quantitative milestone provisions in the
Fairbanks 189(d) Plan as proposed.
7. Contingency Measures
i. Summary of Proposal
In the Proposal, the EPA explained that Alaska provided two
specific measures intended to address the contingency measures
requirement for purposes of the Fairbanks Serious Plan adopted in 18
AAC 50.077(n). Both of these measures pertain to removal of certain
wood fired heating devices upon the triggering of the contingency
measure as a result of one of the four regulatory triggering events as
required in 40 CFR 51.1014. The first of these measures requires owners
of older EPA-certified wood fired heating devices, i.e., those
manufactured at least 25 years prior to the triggering event, to remove
the device upon sale of the property or by December 31, 2024, whichever
is earlier. The second of these measures requires the owners of new
EPA-certified wood fired hearing devices, i.e., those manufactured less
than 25 years prior to the triggering event, to remove the device prior
to reaching 25 years from the date of manufacture.
The EPA did not approve these measures as meeting contingency
measure requirements, but did approve them as SIP strengthening on
September 24, 2021 (86 FR 52997). By their terms, however, these
measures were triggered on October 2, 2020,\182\ the effective date of
the EPA's finding that the area failed to attain the standard by the
outermost serious area attainment date of December 31, 2019.
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\182\ Determination of Failure To Attain by the Attainment Date
and Denial of Serious Area Attainment Date Extension Request; AK:
Fairbanks North Star Borough 2006 24-Hour Fine Particulate Matter
Serious Nonattainment Area, 85 FR 54509, September 2, 2020.
---------------------------------------------------------------------------
In the Proposal, the EPA also explained that Alaska provided one
additional measure intended to meet the contingency measure
requirements for purposes of the Fairbanks 189(d) Plan. This new
provision in the Emergency Episode Plan, incorporates a requirement
that, if triggered, would lower the air quality woodstove curtailment
Stage 2 threshold from 30 [micro]g/m\3\ to 25 [micro]g/m\3\ within the
Fairbanks PM2.5 Area. The EPA proposed to approve the
revisions to the Fairbanks Emergency Episode Plan as SIP strengthening
because it would provide for emission reductions even though it would
not meet applicable requirements for a contingency measure. The EPA
proposed to disapprove the Fairbanks Serious Plan, and Fairbanks 189(d)
Plan submissions as not meeting the contingency measure requirements of
CAA section 172(c)(9) and 40 CFR 51.1014. The EPA proposed to
disapprove the Fairbanks Serious Plan for not meeting the contingency
measure requirements because (1) the measures were already triggered
and therefore were no longer conditional and prospective, (2) the
measures would only achieve 0.01 tons per day reductions in the first
year of implementation, and (3) the measures would not achieve emission
reductions approximately equal to one-year's-worth of RFP at any time
after being triggered.
The EPA proposed to disapprove the contingency measure included in
the Fairbanks 189(d) Plan because (1) the measure would not achieve
emission reductions approximately equal to one-year's-worth of RFP (2)
the measure would not achieve emission reductions of all plan
precursors, including SO2 and NH3, and (3) Alaska
did not include an adequate reasoned justification for why any
additional potential contingency measures were infeasible.\183\
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\183\ The EPA notes that it indicated in the Proposal that it
proposed to approve Volume II, Chapter II.D.7.11 Contingency
Measures in the Proposal. This chapter summarizes Alaska's
contingency measures and provides Alaska's explanation for why its
measures meet CAA requirements. However, the EPA made clear in the
Proposal that it proposed to disapprove the Fairbanks Serious Plan
and Fairbanks 189(d) Plan as not meeting the contingency measure
requirements. The EPA is finalizing the disapproval as proposed.
Given that the EPA is disapproving the Fairbanks Serious Plan and
Fairbanks 189(d) Plan as not meeting the contingency measure
requirements as proposed, the EPA is also disapproving State Air
Quality Control Plan Volume II, Chapter II.D.7.11 Contingency
Measures. Approving Volume II, Chapter II.D.7.11 Contingency
Measures would be inconsistent with the bases for disapproval of the
Fairbanks Serious Plan and Fairbanks 189(d) Plan and confusing.
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ii. Final Rule
We note that on February 10, 2022, the EPA approved and
incorporated 18 AAC 50.030(c) by reference into the SIP, State
effective November 7, 2020 (87 FR 7722). The EPA has determined that
this current, SIP-approved version of 18 AAC 50.030(c) correctly
provides for the four triggering events upon which continency measures
should go into effect. In addition, on September 24, 2021 (86 FR
52997), the EPA approved and incorporated by reference the two measures
from the Fairbanks Serious Plan related to replacement of wood-fired
heating devices in 18 AAC 50.077(n) as SIP strengthening. In this
action, the EPA has determined that these provisions do not meet
contingency measures requirements because they are already triggered
and implemented. In this action, the EPA is approving the new measure
from the Fairbanks 189(d) Plan lowering the curtailment Stage 2
threshold from 30 [micro]g/m\3\ to 25 [micro]g/m\3\ as SIP
strengthening, but the EPA has determined that this measure alone is
insufficient to meet contingency measures requirements. Thus, the EPA
is disapproving the Fairbanks Serious Plan and Fairbanks 189(d) Plan
with respect to the contingency measures element. The State did not
submit adequate control measures to meet the contingency measures
requirements of CAA section 172(c)(9) and 40 CFR 51.1014.
iii. Comments and Responses
Comment: One comment from Citizens for Clean Air, Alaska Community
Action on Toxics, Sierra Club Alaska Chapter supported the EPA's
proposed disapproval. The commenter also identified a number of other
items that the commenter described as ``potential contingency
measures.''
Response: The EPA agrees with the commenter that the Fairbanks
Serious Plan and Fairbanks 189(d) Plan do not satisfy the contingency
measures requirements of the CAA section 172(c)(9) and 40 CFR 51.1014.
The EPA agrees that the State should evaluate and adopt other measures
to meet the contingency measure requirements, but notes that many of
the specific suggestions from the commenter also may not meet
applicable statutory and regulatory requirements for contingency
measures.
Comment: Alaska commented in support of the EPA's proposed approval
of revisions to 18 AAC 50.030(c) as meeting the trigger mechanism
requirements of 40 CFR 51.1014 and CAA section 172(c)(9).
Response: The EPA agrees that 18 AAC 50.030(c) meets the trigger
mechanism requirements of 40 CFR 51.1014 and CAA section 172(c)(9)
because it provides for the implementation of contingency measures in
all four types of triggering events. Although this provision meets this
critical requirement for the triggering and implementation of
contingency measures for areas in general, and the EPA approved and
incorporated the provision by reference
[[Page 84664]]
into the SIP on February 10, 2022 (87 FR 7722), we have determined the
rule does not suffice to meet other important requirements with respect
to the Fairbanks PM2.5 Nonattainment Area, such as that the
measures actually achieve meaningful emission reductions in the event
of a triggering event. Accordingly, approval of the new provision that
correctly imposes the correct triggering events does not fully meet the
contingency measures element of either the Fairbanks Serious Plan or
the Fairbanks 189(d) Plan.
Comment: Alaska opposed the EPA's proposed disapproval of its
contingency measures. Specifically, Alaska commented that failure of
the contingency measure in the Fairbanks 189(d) Plan to achieve
approximately one-year's-worth of RFP is not a valid basis for
disapproval. The State argued that neither CAA section 172(a)(9) nor
the EPA's regulations contain an explicit requirement that contingency
measures must achieve approximately one-year's-worth of RFP. Alaska
further asserted that the guidance upon which the EPA relied on for the
proposed disapproval was not subject to public notice and comment.
Alaska also claimed that the EPA's guidance concerning the amount of
emission reductions that contingency measures should achieve is
``inconsistent with the plain language'' of the CAA. In support of this
contention, the State cited and quoted from the EPA's recent Draft
Contingency Measures Guidance as evidence that the EPA's existing
guidance is flawed.\184\ Finally, Alaska asserted that it has adopted
all technically and economically feasible measures as BACM, and that
the CAA does not require additional measures as contingency
measures.\185\
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\184\ https://www.epa.gov/air-quality-implementation-plans/draft-contingency-measures-guidance.
\185\ Alaska also appears to conflate the BACM requirements with
the contingency measure requirements: ``interpreting the OYW
guidance as an additional requirement for BACM in Fairbanks is
severely detached from the facts on the ground and could not be
justified on review.'' Pursuant to CAA section 172(c)(9), 40 CFR
51.1003, and 40 CFR 51.1014 contingency measures are independent
from and in addition to all other measures required to be included
in the control strategy, including RACM/RACT, BACM/BACT, and MSM.
Even when as a state has adopted and implemented all BACM/BACT as
required, this is not a valid basis for not adopting contingency
measures that meet CAA requirements. To the contrary, section
172(c)(9) imposes the contingency measure requirement as a separate
obligation over and above BACM/BACT, RFP, the modeled attainment
demonstration and other nonattainment plan requirements.
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Response: The EPA disagrees with the commenter for a number of
reasons. As an initial matter, the EPA notes that Alaska did not
specifically address all the of the bases for the EPA's disapprovals
for the contingency measures Alaska submitted as part of the Fairbanks
Serious Plan and Fairbanks 189(d) Plan, respectively. The EPA disagrees
with Alaska that the contingency measures included in either the
Fairbanks Serious Plan or Fairbanks 189(d) Plan meet CAA requirements.
With respect to the two contingency measures the State submitted as
part of the Fairbanks Serious Plan, the EPA noted several
deficiencies--any one of which independently serve as a basis for
disapproval. Most notably, the measures have already been triggered
because the Fairbanks area failed to attain the NAAQS by the Serious
area attainment date, thus are already implemented measures, and
therefore are no longer conditional and prospective. The plain language
of CAA section 172(c)(9) dictates that contingency measures must be
both conditional and prospective, such that emissions reductions will
occur only after a triggering event.\186\ Courts have already ruled
that the EPA may not approve measures that are already implemented, or
the emission reductions that result from such already implemented
measures, as contingency measures.\187\ In addition to this fatal flaw
in these two measures, the measures would only achieve 0.01 tons per
day reductions of direct PM2.5 in the first year of
implementation. Specifically, the State did not design the measures to
achieve meaningful emissions reductions if triggered prior to the
State's target 2024 attainment date, such as a failure to meet RFP.
This undercuts the purpose of contingency measures to ensure continued
emission reduction progress towards attainment should any of the
triggering events listed in 40 CFR 51.1014 occur. Finally, the EPA
noted that these two contingency measures at maximum would achieve far
less emissions reductions than one-year's-worth of RFP in any year of
implementation. Given these deficiencies, Alaska's two contingency
measures submitted as part of the Fairbanks Serious Plan (revisions to
18 AAC 50.077(n)) do not satisfy the CAA's contingency measure
requirements.
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\186\ Id.
\187\ Bahr v. EPA, 836 F.3d 1218, 1235-36 (9th Cir. 2016);
Sierra Club v. EPA, 21 F.4th 815, 827-826 (D.C. Cir. 2021).
---------------------------------------------------------------------------
With respect to the one additional contingency measure the State
submitted as part of the Fairbanks 189(d) Plan, the EPA also disagrees
with Alaska that this measure satisfies CAA contingency measure
requirements. Alaska implies that because the statute does not impose
an explicit requirement with respect to the amount of emission
reductions contingency measures must achieve, the EPA must approve them
even if they would result in little or no emission reductions. The
EPA's position remains that contingency measures must achieve
sufficient emission reductions of direct PM2.5 and plan
precursors following any of the triggering events. Accordingly, failure
to achieve sufficient emissions reductions in general, failure to
achieve sufficient emissions reductions of each plan precursor, or
failure to achieve emissions reductions following one or more
triggering events are valid bases to disapprove a contingency measure.
The statutory purpose of contingency measures is to ensure
continued progress towards attainment following a plan failure, such as
failure to meet RFP or failure to attain by the attainment date.\188\
As the RFP requirement is the statutory basis to measure progress
towards attainment,\189\ RFP requirements are an appropriate and
reasonable barometer for measuring the sufficiency of emissions
reductions that the State estimates a contingency measure will achieve.
The EPA has historically used RFP for this purpose, and even in more
recent draft guidance continues to recommend use of RFP, albeit
measured against a different emissions inventory.\190\ Moreover,
contingency measures should achieve sufficient emission reductions of
both direct PM2.5 and plan precursors, even if it may be
appropriate under some circumstances to provide for inter-pollutant
trading for contingency measures purposes.
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\188\ 59 FR 41998, August 16, 1994, at p. 42015; Assoc. of
Irritated Residents v. EPA, 10 F.4th 937, at pp. 946-947 (9th Cir.
2021).
\189\ CAA section 172(c)(2); 40 CFR 51.1012.
\190\ U.S. EPA, Office of Air Quality Planning and Standards,
Air Quality Policy Division, DRAFT: Guidance on the Preparation of
State Implementation Plan Provisions that Address the Nonattainment
Area Contingency Measure Requirements for Ozone and Particulate
Matter, March 17, 2023, at pp. 20-22.
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The EPA first articulated these positions in the April 16, 1992
General Preamble \191\ and the August 16, 1994 Addendum.\192\ In the
context of
[[Page 84665]]
implementing the PM2.5 NAAQS, contrary to the commenter's
assertions, the EPA undertook notice and comment on this approach prior
to finalizing the PM2.5 SIP Requirements Rule.\193\ At that
time, commenters raised concerns about the challenges of identifying
contingency measures in certain nonattainment areas in which States
have already imposed aggressive control measures as part of the control
strategy.\194\ The EPA acknowledged these challenges, but reiterated
its interpretations of the statute that: (1) section 172(c)(9)
explicitly requires States to include contingency measures in Moderate
area plans, Serious area plans, and 189(d) plans; and that (2) such
contingency measures should provide emissions reductions approximately
equivalent to one year's-worth of reductions needed for RFP in the
area.\195\
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\191\ 57 FR 13498, April 16, 1992, at pp. 13543-13544 (``The
contingency measures to be implemented if an area does not attain
the standards on schedule should be a portion of the actual
emissions reductions required by the SIP control strategy to bring
about attainment. Therefore, the contingency emissions reductions
should be approximately equal to the emissions reductions necessary
to demonstrate RFP for one year.'').
\192\ 59 FR 41998, August 16, 1994, at p. 42015 (``In designing
its contingency measures, the State should also take into
consideration the potential nature and extent of any attainment
shortfall for the area. The magnitude of the effectiveness of the
measures should be calculated to achieve the appropriate percentage
of the actual emission reductions required by the SIP control
strategy to bring about attainment. The EPA has recommended that
contingency measures provide the emission reductions equivalent to
one year's average increment of RFP.'').
\193\ Fine Particulate Matter National Ambient Air Quality
Standards: State Implementation Plan Requirements, Proposed Rule, 80
FR 15340, March 23, 2015, at pp. 15392, 15417, 15427.
\194\ 81 FR 58010, August 24, 2016, at p. 58068.
\195\ Id. at pp. 58068, 58093 and 58105.
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Significantly, the EPA also indicated in the PM2.5 SIP
Requirements Rule that if a State is unable to identify contingency
measures that would result in emission reductions equivalent to
approximately one year's-worth of RFP, the State may provide a reasoned
justification why the smaller amount of emissions reductions is
appropriate.\196\ Although the EPA indicated that this would only be
appropriate in ``the rare event'' that a State is unable to identify
any additional measures, the EPA did provide for this possibility if
the State provides an adequate demonstration that no other measures are
feasible. The EPA reiterated this interpretation in its comment letters
on the Fairbanks Serious Plan and Fairbanks 189(d) Plan and recommended
that Alaska either adopt additional contingency measures that would
achieve more emission reductions or provide an adequate reasoned
justification to establish that no other measures were feasible.\197\
In the Fairbanks Serious Plan and the Fairbanks 189(d) Plan, the State
did not provide an analysis that would provide such an adequate
reasoned justification.
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\196\ 81 FR 58010, August 24, 2016, at pp. 58067 and 58093.
\197\ ``EPA Comments on 2019 DEC Proposed Regulations and SIP--
Fairbanks North Star Borough Fine Particulate Matter'' Letter from
Krishna Viswanathan, Director, EPA Region 10 Air and Radiation
Division to Alice Edwards, Director, ADEC Division of Air Quality,
July 19, 2019.at p. 11; ``EPA Comments on 2020 Department of
Environmental Conservation (DEC) Proposed Regulations and SIP
Amendments'' Letter from Krishna Viswanathan, Director, EPA Region
10 Air and Radiation Division to Alice Edwards, Director, ADEC
Division of Air Quality, October 29, 2020 at p. 7.
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On March 17, 2023, the EPA made available ``Draft Guidance on the
Preparation of State Implementation Plan Provisions that Address the
Nonattainment Area Contingency Measure Requirements for Ozone and
Particulate Matter'' (``Draft Contingency Measure Guidance''). The
Draft Contingency Measure Guidance addresses three issues with respect
to the contingency measure requirements for ozone and PM2.5
nonattainment areas. First, the Draft Contingency Measure Guidance
addresses the method that air agencies should use to calculate the
amount of emission reductions contingency measures should provide.
Second, the Draft Contingency Measure Guidance provides air agencies
with specific recommendations about how to develop reasoned
justifications for why it cannot identify contingency measures that
result in emissions reductions approximately equivalent to RFP. Third,
the guidance addresses the time period within which reductions from
contingency measures should occur. On March 23, 2023, the EPA published
in the Federal Register a notice of availability and public comment
period on the draft guidance.\198\ The comment period closed on April
24, 2023.
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\198\ Draft Guidance on the Preparation of State Implementation
Plan Provisions That Address the Nonattainment Area Contingency
Measure Requirements for Ozone and Particulate Matter, 88 FR 17571,
March 23, 2023.
---------------------------------------------------------------------------
Alaska incorrectly asserted that the EPA's issuance of Draft
Contingency Measure Guidance suggests that the Agency's longstanding
interpretation of CAA section 172(c)(9) with respect to the amount of
emission reductions that contingency measures should achieve is
inconsistent with the statute. First, the EPA has not yet finalized
this revised guidance. The EPA is currently evaluating comments on the
Draft Contingency Measure Guidance and determining whether any changes
are warranted. Until the EPA finalizes any revised guidance, the EPA
continues to evaluate contingency measures based on the approach
articulated above. Importantly, nowhere in the Draft Contingency
Measure Guidance does the EPA state that its existing approach to
contingency measures, including determining the sufficiency of emission
reductions, is inconsistent with the CAA. To the contrary, the existing
approach is reflective of recent court decisions acknowledging the
linkage between RFP and contingency measures.\199\ Rather, the draft
guidance proffers a different approach that the EPA believes may also
satisfy CAA requirements.
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\199\ Assoc. of Irritated Residents v. EPA, 10 F.4th 937, at pp.
946-947 (9th Cir. 2021); Draft Contingency Measure Guidance at pp.
17-19.
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Significantly, even in the new draft guidance the EPA continues to
recommend that States identify and adopt contingency measures that will
achieve approximately one year's worth of progress, but suggests that
it may be appropriate to base that calculation on what one year's worth
of progress would be in the attainment year, rather than one year based
on the base year emissions inventory. In the event a State cannot
identify sufficient measures to achieve this amount of emission
reductions, the EPA's draft guidance follows the Agency's existing
guidance with respect to the potential for States to provide a
``reasoned justification'' that no other measures are feasible to
achieve additional emission reductions to meet the contingency measures
requirement.
Ultimately, the EPA finds the contingency measure Alaska submitted
as part of the Fairbanks 189(d) Plan lacking in several critical ways.
First, the contingency measure only provides emissions reductions for
direct PM2.5 and not all plan precursors. Alaska did not
provide any explanation in the SIP submission or the comments on the
Proposal for why additional contingency measures specific to plan
precursors are not feasible. Second, the contingency measure only
provides emission reductions if the triggering event is a failure of
the plan to obtain the NAAQS by the attainment date. If the contingency
measure is triggered earlier, such as in the event of a failure to meet
RFP, Alaska's SIP submission indicates that the contingency measures
will achieve substantially less emissions reductions--particularly
within the first year of implementation.\200\ Finally, the maximum
emissions reductions Alaska estimated the contingency measure would
achieve, 0.08 PM2.5 tons per day, is substantially less than
one year's worth of RFP, which is 0.24 PM2.5 tons per day.
As the EPA suggested in the PM2.5 SIP Requirements Rule,
Alaska could have attempted to provide a reasoned justification and
supporting information to establish that there are
[[Page 84666]]
no other feasible measures to achieve additional emission reductions as
contingency measures in the Fairbanks area but Alaska did not do so.
The EPA maintains that each of these deficiencies form an independent
basis to disapprove Alaska's plan as meeting the contingency measure
requirements.
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\200\ State Air Quality Control Plan Vol. II, Chapter
III.D.7.10, at p. 13, adopted November 18, 2020.
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Regarding the scarcity of potential contingency measures as a
rationale for the low emission reductions, Alaska did not include in
its submissions or comments on the Proposal a thorough evaluation of
all potential contingency measures, including those measures the State
deemed infeasible for BACM/BACT purposes. Another potential source of
contingency measures are those measures qualifying as MSM. The EPA
previously denied Alaska's request to extend the Serious area
attainment date pursuant to CAA section 188(e) because the State failed
to adopt MSMs for all sources and source categories.\201\ Consideration
of control measures that are more stringent than BACM/BACT and MSM is a
logical starting point for identification of additional contingency
measures. In addition, robust contingency measures are particularly
important for the Fairbanks Nonattainment Area given the pervasiveness
of the air quality problem.
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\201\ Determination of Failure To Attain by the Attainment Date
and Denial of Serious Area Attainment Date Extension Request; AK:
Fairbanks North Star Borough 2006 24-Hour Fine Particulate Matter
Serious Nonattainment Area--Final Rule, 85 FR 54509, September 2,
2020; Determination of Failure To Attain by the Attainment Date and
Denial of Serious Area Attainment Date Extension Request; AK:
Fairbanks North Star Borough 2006 24-Hour Fine Particulate Matter
Serious Nonattainment Area--Proposed Rule, 85 FR 29879, May 19,
2020, at p. 29881.
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As part of a subsequent SIP submission to cure the deficiencies
with respect to the contingency measures requirements, the EPA
encourages Alaska to evaluate all control measures Alaska previously
rejected as either technologically or economically infeasible as BACM
or BACT or as additional measures necessary for Serious areas that fail
to attain and adopt those measures that can satisfy, in whole or in
part, the contingency measure requirements. By definition, contingency
measures are controls measures that are required over and above what a
State is required to adopt to meet other nonattainment plan
requirements such as BACM/BACT, RFP, and the modeled attainment
demonstration showing expeditious attainment of the NAAQS. Alaska may
also identify and adopt new measures it has not previously identified
and evaluated as part of prior SIP submissions to satisfy the
contingency measure requirements.
Further, as noted in section II.E.(3).(ii) of this preamble and in
the EPA's Response to Comments document,\202\ the EPA notes the
tremendous emission reduction potential of adopting a ULSD control
measure for residential and commercial fuel oil combustion (Alaska
estimated emission reductions of 669 tons of SO2 per year
through ULSD adoption), in an area whose share of PM2.5 is
increasingly sulfate derived from SO2 sources. Therefore,
the EPA encourages Alaska to exercise its authority under CAA section
116 to adopt this measure as part of its control strategy or evaluate
this requirement as a contingency measure.
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\202\ Response to Comments Regarding Best Available Control
Measure Requirements for Residential and Commercial Fuel Oil
Combustion on the Air Plan Partial Approval and Partial Disapproval;
AK, Fairbanks North Star Borough; 2006 24-hour PM2.5
Serious Area and 189(d) Plan EPA-R10-OAR-2022-0115.
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8. Motor Vehicle Emission Budgets for Transportation Conformity
i. Summary of Proposal
The EPA proposed to disapprove the motor vehicle emission budgets
submitted as part of the Fairbanks 189(d) Plan. The EPA explained in
the Proposal that the Agency evaluated the motor vehicle emissions
budgets against the adequacy criteria in 40 CFR 93.118(e)(4) as part of
the EPA's review of the approvability of the budgets according to the
process in 40 CFR 93.118(f)(2). The EPA noted in the Proposal that the
budgets were clearly identified and precisely quantified using
MOVES2014b, with appropriate consultation among Federal, State, and
local agencies. However, the EPA stated in the Proposal that the
budgets must be considered with other emissions sources, consistent
with applicable RFP and attainment requirements, and be consistent with
and clearly related to the emissions inventory and the control measures
in the SIP.\203\ Since the budgets must account for other control
measures to determine the appropriate motor vehicle budgets, and the
control strategy does not include all required control measures, then
the budgets will necessarily be deficient. Therefore, the EPA proposed
to disapprove the budgets for the Fairbanks PM2.5
Nonattainment Area.
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\203\ See 40 CFR 93.118(e)(4)(iv through v).
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ii. Final Rule
The EPA is finalizing disapproval of the motor vehicle budgets for
transportation conformity as proposed. The EPA is finalizing its
disapproval without a protective finding for the motor vehicle
emissions budgets, consistent with 40 CFR 93.120. Specifically, we note
that in disapproving a control strategy implementation plan revision,
the EPA would give a protective finding where a submitted plan contains
adopted control measures or written commitments to adopt enforceable
control measures that fully satisfy the emissions reductions
requirements relevant to the statutory provision for which the
implementation plan revision was submitted, such as reasonable further
progress or attainment.\204\ Based on the discussion in section II.E of
this preamble, the Fairbanks Serious Plan and Fairbanks 189(d) Plan do
not meet this criteria.
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\204\ 40 CFR 93.120(a)(3).
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iii. Comments and Responses
Comment: The EPA received two comments regarding its proposed
disapproval of the motor vehicle emission budgets. One comment from
Alaska stated, ``Alaska addressed each individual control measure and
provided either additional information to support dismissal or
described the actions that Alaska plans to take to resolve the
deficiency that the EPA identified.'' Another comment from FAST
Planning opposed the proposed disapproval. According to the commenter,
FAST Planning interpreted this finding to mean the budgets were
disapproved because the EPA proposed to disapprove Alaska's rejection
of certain mobile source and transportation control measures all of
which have been assessed by Alaska to have limited or no reductions to
PM2.5 levels. FAST Planning stated that factoring into the
budget calculations measures that have limited or no reduction to
PM2.5 should have little to no effect on the budgets, so
this does not seem like a logical reason to disapprove the budget. The
comment also includes a graph comparing the Fairbanks Moderate Plan
motor vehicle emission budgets to the Fairbanks Serious Plan motor
vehicle budgets. According to the comment, the proposed budgets in the
Serious Plan are lower than the budgets in the Moderate Plan and the
latest test results show actual emissions below the proposed budgets.
Furthermore, according to the comment, incorporating the rejected
transportation control measures into the analysis will have little to
no effect on the budgets.
Response: The PM2.5 SIP Requirements Rule requires that
any attainment plan submitted to the EPA under this section shall
establish motor vehicle emissions budgets for the
[[Page 84667]]
projected attainment year for the area, if applicable. The State shall
develop such budgets according to the requirements of the
transportation conformity rule as they apply to PM2.5
nonattainment areas (40 CFR part 93, subpart A).\205\ In addition, the
transportation conformity regulation at 40 CFR 93.118(e)(4) establishes
the minimum criteria that a motor vehicle emission budget must meet in
order for the EPA to find the budget adequate. These minimum criteria
include: the motor vehicle emissions budget(s), when considered
together with all other emissions sources, is consistent with
applicable requirements for reasonable further progress, attainment, or
maintenance (whichever is relevant to the given implementation plan
submission); and the motor vehicle emissions budget(s) is consistent
with and clearly related to the emissions inventory and the control
measures in the submitted control strategy implementation plan revision
or maintenance plan. Consistent with the EPA's Transportation
Conformity Regulations, the EPA explained in the preamble to the
PM2.5 SIP Requirements Rule that a motor vehicle emissions
budget for the purposes of a Serious area PM2.5 attainment
plan is that portion of the total allowable emissions within the
nonattainment area allocated to on-road sources as defined in the
submitted attainment plan. Such motor vehicle emissions budgets would
be calculated using the latest planning assumptions and the latest
approved motor vehicle emissions model available at the time that the
attainment plan is developed.\206\
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\205\ 40 CFR 51.1003(d).
\206\ 81 FR 58010, August 24, 2016, at p. 58090.
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The EPA's disapproval of the motor vehicle emission budgets
submitted as part of the Fairbanks 189(d) Plan is not predicated on the
EPA's action on Alaska's BACM determinations for mobile sources
generally or rejection of certain transportation control measures as
BACM, specifically. While the EPA agrees with FAST Planning that the
motor vehicle budgets are reduced from the Fairbanks Moderate Plan to
the Fairbanks 189(d), the EPA is still unable to determine whether the
budgets are adequate because the EPA is finalizing the disapproval of
the attainment demonstration and RFP provisions in the Fairbanks 189(d)
Plan. Alaska will need to submit budgets as part of its next SIP
revision for the area that are consistent with the revised attainment
demonstration and RFP provisions. Additionally, Alaska has not adopted
all available BACM and BACT. As a result, the EPA is disapproving the
Fairbanks Serious Plan and Fairbanks 189(d) Plan attainment
demonstration and reasonable further progress provisions. Therefore,
the EPA is limited in determining the adequacy and approvability of the
motor vehicle budgets when the EPA cannot yet determine whether all
other available control measures are implemented that would lead to
expeditious attainment.
Comment: One commenter stated that the EPA should issue a
transportation conformity protective finding for the regional
transportation plan.
Response: The transportation conformity regulation at 40 CFR 93.101
defines a protective finding as ``a determination by EPA that a
submitted control strategy implementation plan revision contains
adopted control measures or written commitments to adopt enforceable
control measures that fully satisfy the emissions reductions
requirements relevant to the statutory provision for which the
implementation plan revision was submitted, such as reasonable further
progress or attainment.''
Similarly, the regulation at 40 CFR 93.120(a)(3) states: ``In
disapproving a control strategy implementation plan revision, EPA would
give a protective finding where a submitted plan contains adopted
control measures or written commitments to adopt enforceable control
measures that fully satisfy the emissions reductions requirements
relevant to the statutory provision for which the implementation plan
revision was submitted, such as reasonable further progress or
attainment.''
As noted in section II.E of this preamble, the EPA is finalizing
disapproval of portions of the control strategy in the Fairbanks
Serious Plan and Fairbanks 189(d) plan as not fully meeting CAA
requirements. Therefore, the submitted plans do not contain adopted
control measures or written commitments to adopt enforceable control
measures that fully satisfy the emissions reductions requirements in
CAA sections 189(b) and 189(d). Therefore, the EPA cannot issue a
protective finding under 40 CFR 93.120(a)(3).
Comment: Several commenters expressed concern with the proposed
Manh Choh mine, particularly the increase in heavy-duty vehicle traffic
while hauling ore through the nonattainment area.
Response: First, the CAA does not mandate a State include control
measures in a Serious area plan or 189(d) plan for a proposed mining
operation located outside of the Fairbanks nonattainment area or
associated ore hauling. Thus, the potential emissions from the Manh
Choh mine are outside the scope of this action and not a valid basis to
disapprove the Fairbanks Serious Plan or Fairbanks 189(d) Plan.
Second, with respect to the impact of the traffic associated with
the mine and its impact on transportation conformity, the EPA has been
working with FAST Planning and ADEC to assess these potential impacts
and ensure that any increased emissions do not impede expeditious
attainment of the PM2.5 24-hour NAAQS. As part of the 2045
Metropolitan Transportation Plan Update, a report provided to FAST
Planning concluded that the area continued to meet transportation
conformity budgets even with the increased traffic and resulting
emissions from the heavy-duty diesel truck activity.\207\ We note that
as part of the environmental impact assessment of the mining project,
the EPA sent a letter to the U.S. Army Corps of Engineers suggesting a
number of measures to reduce air quality impacts.\208\ Additionally, a
technical advisory committee formed by the Alaska Department of
Transportation and Public Facilities will analyze the impacts and
potential implications of the proposed ore haul operations to roadway
infrastructure and safety.\209\
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\207\ Vallamsundar and Carlson, Conformity Analysis for the FAST
Planning 2045 Metropolitan Transportation Plan Update, Trinity
Consultants, section 5.2, March 13, 2023, available in the docket
for this action.
\208\ Letter from Amy Jensen, EPA Region 10, Regional Wetland
Coordinator to Gregory Mazer, U.S. Army Corps of Engineers, Alaska
District, August 19, 2022, included in the docket for this action.
\209\ Alaska Richardson Steese Highway Corridor Action Plan,
available at: https://storymaps.arcgis.com/stories/98f64a497c834ae18955d5d6b5994ff4.
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9. Nonattainment New Source Review Requirements
i. Summary of Proposal
A State with a designated nonattainment area is required to have a
NNSR permitting program for the construction and operation of new and
modified major stationary sources, in accordance with CAA sections
110(a)(2)(C) and 172(c)(5). For purposes of the 2006 24-hour
PM2.5 NAAQS, the State must also meet the additional
requirements of CAA sections 189(b)(3) concerning the definition of a
major stationary source, and 189(e) concerning regulated emissions.
CAA section 189(b)(3) requires that in Serious particulate matter
nonattainment areas, the NNSR major source threshold is 70 tons per
year. The EPA previously approved a revision to
[[Page 84668]]
the Alaska SIP to meet this requirement (84 FR 45419, August 29, 2019).
CAA section 189(e) specifically requires that the control requirements
applicable to major stationary sources of direct PM2.5 also
apply to major stationary sources of PM2.5 precursors,
except where the Administrator determines that such sources of a
precursor or precursors do not contribute significantly to
PM2.5 levels that exceed the NAAQS in the area.\210\ The
default under CAA section 189(e) is that the State must control
emissions of direct PM2.5 emissions and the emissions of all
four PM2.5 precursors, i.e., NOx, VOCs, SO2, and
NH3, unless the State has submitted an optional precursor
demonstration, and the EPA has approved such demonstration.
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\210\ 57 FR 13498, April 16, 1992, at pp. 13539 and 13541-13542.
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As noted in the Proposal and in section II.E.9.i of this preamble,
the EPA previously approved a revision to the Alaska SIP to meet this
requirement (84 FR 45419, August 29, 2019), thus satisfying the NNSR
program element for purposes of the Fairbanks Serious Plan. In that
action, the EPA stated that Alaska did not make an optional precursor
demonstration for NOX, SO2, VOC or NH3
for purposes of NNSR requirements. Instead, Alaska adopted by reference
the 40 tons per year significant emissions rates for NOX,
SO2, and VOC set by the EPA, and also established a
significant emissions rate of 40 tons per year for NH3 as a
precursor for PM2.5, consistent with the thresholds
established for the other PM2.5 precursors. In the Fairbanks
189(d) Plan submission, ADEC certified that the State's NNSR program
meets the CAA section 172(c)(5), 189(d), and 189(e) nonattainment area
planning requirements. The EPA proposed to approve the existing SIP-
approved NNSR program as applicable in the Fairbanks PM2.5
Nonattainment Area for purposes of meeting requirements Serious areas
that fail to attain under 40 CFR 51.1003(c)(1)(viii).
ii. Final Rule
The EPA did not receive any comments on this plan element and is
finalizing approval of the Fairbanks Serious Plan and Fairbanks 189(d)
Plan as meeting the NNSR program requirements of CAA sections
172(c)(5), 189(b)(3), 189(d), and 189(e), and 40 CFR
51.1003(b)(1)(viii) and (c)(1)(viii).
10. Additional Comments
Comment: One commenter questioned whether the EPA had complied with
the Regulatory Flexibility Act prior to proposing action on the
Fairbanks Serious Plan and Fairbanks 189(d) Plan. The commenter stated
that the RFA required Federal agencies to go through a due process and
if the standards that the Federal government have established cannot be
attained it allows agencies to adjust them. The commenter further
asserted that the EPA was required to address the RFA.
Response: The EPA disagrees with the commenter that the EPA was
required to prepare a regulatory flexibility analysis pursuant to the
RFA prior to proposing or finalizing this action on Alaska's SIP
submissions. The RFA, 5 U.S.C. 601-612, generally requires agencies to
prepare a regulatory flexibility analysis for any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act (APA) or any other statute unless an agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities (SISNOSE). In the notice of
proposed rulemaking, the EPA certified that this action will not have a
SISNOSE. In particular, the EPA stated that the proposed SIP action, if
finalized, will not in-and-of itself create any new requirements but
will simply disapprove certain State requirements for inclusion in the
SIP. The EPA's position with respect to its obligations under the RFA
remains unchanged.
Comment: One commenter opposed the EPA's proposed determination
that the EPA's action on the Fairbanks Serious Plan and Fairbanks
189(d) Plan would not have Tribal implications under Executive Order
13175. The commenter argued that the EPA's action would significantly
impact Doyon, Limited and its shareholders. Doyon, Limited is the
regional Alaska Native corporation for Interior Alaska formed under the
Alaska Native Claims Settlement Act (ANCSA). According to the
commenter, Doyon, Limited has 20,400 shareholders, 5,000 of which
reside in the Fairbanks area. The commenter also opposed the EPA's
proposed disapproval of the BACT determinations for the Fort Wainwright
CHPP owned and operated by Doyon Utilities, LLC.
Response: Consistent with Executive Order 13175, the EPA consulted
with Doyon, Limited on April 17, 2023. The EPA notes that under
Executive Order 13175, the EPA consults with Indian Tribes and ANCSA
Corporations on a regulatory action that has substantial direct effect
on the Indian Tribe or ANCSA corporation and imposes substantial direct
compliance costs. The EPA's action here approves in part and
disapproves in part the Fairbanks Serious Plan and Fairbanks 189(d)
Plan. Accordingly, the EPA's action has no direct effect on Doyon,
Limited nor any other Indian Tribe. Nor does the EPA's action impose
direct compliance costs. The EPA is not adopting or implementing as
part of this action any affirmative regulations applicable to entitles
or people in the Fairbanks PM2.5 Nonattainment Area. As a
result of this action, certain provisions of the Fairbanks Serious Plan
and Fairbanks 189(d) Plan are approved into Alaska's SIP. The EPA is
disapproving other provisions. In response to the EPA's disapprovals,
Alaska may adopt new regulations that may impact Doyon, Limited or its
shareholders. The EPA addressed Doyon Utilities, LLC's comments
regarding BACT in a Response to Comment document, included in the
docket for this action.\211\
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\211\ Response to Comments Regarding Best Available Control
Technology Requirements on the Air Plan Partial Approval and Partial
Disapproval; AK, Fairbanks North Star Borough; 2006 24-hour
PM2.5 Serious Area and 189(d) Plan, EPA-R10-OAR-2022-
0115.
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Comment: One commenter opposed the proposed disapproval on the
basis that triggering the mandatory highway sanction is not relevant or
appropriate for the Fairbanks PM2.5 Nonattainment Area. The
Clean Air Act of 1970 was passed to protect public health and welfare
at a time when pollution from vehicles was a serious problem in urban
areas and included a correlated sanction for withholding Federal
highway funding, yet in present time the EPA touts major successes in
vehicle pollution control in the U.S. by stating vehicles today are 99
percent cleaner for most tailpipe pollutants than in 1960s and 1970s;
thus, the commenter asserts, making the 53-year old sanction no longer
relevant. The commenter stated that on-road mobile emissions in the
Fairbanks PM2.5 Nonattainment Area only comprise 6.8 percent
of the area emissions contribution, yet the EPA is threatening to use
the 53-year-old sanction to withhold Federal highway funding, which is
not correlated nor will contribute to solving the problem.
Response: If the EPA finalizes full or partial disapproval of a
required SIP submission, such as an attainment plan submission, or a
portion thereof, CAA section 179(a) establishes the imposition of
mandatory sanctions. If the EPA has not affirmatively determined that
the State has corrected the identified deficiencies within 18 months
after the effective date of this action, then, pursuant to CAA section
179(a) and (b) and 40 CFR 52.31, the offset sanction identified in CAA
section 179(b)(2) will apply in the affected nonattainment
[[Page 84669]]
area. If the EPA has not affirmatively determined that the identified
deficiencies have been corrected within 6 months after the offset
sanction is imposed, then the highway funding sanction will apply in
the affected nonattainment area, in accordance with CAA section
179(b)(1) and 40 CFR 52.31. The sanctions will not take effect if,
within 18 months after the effective date of this finding, the EPA
affirmatively determines that the State has made a complete SIP
submittal correcting the deficiencies for which the finding was
made.\212\
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\212\ The EPA may also defer or stay, as applicable, the
application of sanctions upon issuance of an interim final
determination that the revised plan corrects the deficiencies
prompting the disapproval. See 40 CFR 52.31(d)(2).
---------------------------------------------------------------------------
In this final action, the EPA is disapproving in part the Fairbanks
Serious Plan and Fairbanks 189(d) Plan for not meeting the CAA
requirements for PM2.5 nonattainment areas, specifically
attainment projected emissions inventory, attainment demonstration,
control strategy (in part), RFP, QM, and contingency measures.\213\
---------------------------------------------------------------------------
\213\ 40 CFR 52.31(a); (d).
---------------------------------------------------------------------------
Congress was clear in CAA section 179 that if the EPA made any of
the findings, disapprovals, or determinations referred to in CAA
section 179(a), sanctions must be imposed. Furthermore, CAA section
179(a)(2) makes clear that disapproval of a SIP submissions for failure
to meet one or more of the elements required by the CAA triggers
mandatory sanctions. Thus, the CAA imposes highway sanctions regardless
of whether mobile sources contribute to a particular nonattainment
problem and regardless of whether the State fails to control mobile
sources in a SIP submission.\214\ By extension, the EPA does not have
discretion to choose not to impose mandatory sanctions.
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\214\ See, e.g., Statements of Henry A. Waxman, Clean Air Act
Amendments of 1990, 136 Cong. Rec. E3699-01, 1990 WL 206989, October
27, 1990, at ES700 (``Cutting off Federal highway funds is an
effective, sanction that can-and should in the appropriate
situation-be used to ensure compliance with clean air requirements
that are unrelated to transportation issues.''). See also, CAA
section 502(d)(2), 42 U.S.C. 7661a(d)(2) (authorizing the
Administrator to apply any of the sanctions in CAA section 179(b) if
a state does not submit a Title V operating permit program or the
EPA disapproves a state Title V operating permit program). But see,
S. Rep. 101-228, 1990 USCCAN 3385, December 20, 1989, at 3413.
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III. Final Action
A. Final Approval
1. In this action, the EPA is finalizing approval of the submitted
revisions to the Alaska SIP as meeting the following Serious Plan and
CAA section 189(d) \215\ required elements for the 2006 24-hour
PM2.5 NAAQS Fairbanks Nonattainment Area:
---------------------------------------------------------------------------
\215\ 42 U.S.C. 7513a(d).
---------------------------------------------------------------------------
i. The 2019 base year emissions inventory (CAA section 172(c)(3)
;\216\ 40 CFR 51.1008(c)(1)) for areas subject to CAA section 189(d).
---------------------------------------------------------------------------
\216\ 42 U.S.C. 7502(c)(3).
---------------------------------------------------------------------------
ii. The State's PM2.5 precursor demonstrations for
NOX and VOC emissions (CAA section 189(e) ;\217\ 40 CFR
51.1006(a)).
---------------------------------------------------------------------------
\217\ 42 U.S.C. 7513a(e).
---------------------------------------------------------------------------
iii. Partial approval of the control strategy as meeting BACM and
BACT requirements under CAA section 189(b)(1)(B) \218\ and 40 CFR
51.1010(a) for the solid fuel home heating device source category and
residential and commercial fuel oil combustion source category.
Additionally, the EPA is finalizing approval as meeting BACM and BACT
requirements under CAA section 189(b)(1)(B) \219\ and 40 CFR 51.1010(a)
for the charbroiler, used oil burner, and mobile source categories
(except for rejection of vehicle anti-idling requirements), and
specific regulations under 18 AAC 50.075 through 077 (except the
requirements for dry wood sellers under 18 AAC 50.076(k)), and
Fairbanks Emergency Episode Plan (except the contingency measure
portion).
---------------------------------------------------------------------------
\218\ 42 U.S.C. 7513a(b)(1)(B).
\219\ Id.
---------------------------------------------------------------------------
iv. Approval of Nonattainment New Source Review Requirements under
CAA sections 172(c)(5), 189(b)(3), 189(d), and 189(e) \220\ and 40 CFR
51.165, 40 CFR 51.1003(b)(1)(viii), and 40 CFR 51.1003(c)(1)(viii).
---------------------------------------------------------------------------
\220\ 42 U.S.C. 7502(c)(5), 7513a(b)(3), 7513a(d) and 7513a(e).
---------------------------------------------------------------------------
2. The EPA is finalizing partial approval of the Fairbanks Serious
Plan and Fairbanks 189(d) plan SIP submissions as meeting applicable
control strategy BACM and BACT requirements (CAA section 189(b)(1)(B)
\221\ and 40 CFR 51.1010(a)) for the following emission sources: \222\
---------------------------------------------------------------------------
\221\ Id.
\222\ Note that the EPA inadvertently indicated that it proposed
to disapprove the Fairbanks Serious Plan and Fairbanks 189(d) Plan
as not meeting BACT requirements for NH3 in Section V of
the Proposal. This was in error. The EPA made clear in the preamble
to the Proposal that it was proposing to approve Alaska's
determinations that no NH3 controls existed for each of
the stationary sources listed.
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i. Chena Power Plant
a. Coal-fired boilers (NH3)
ii. Fort Wainwright
a. Coal-fired boilers (NH3)
b. Diesel-fired boilers (NH3)
c. Large diesel-fired engines (NH3)
d. Small emergency engines (NH3)
e. Materials handling (NH3)
iii. University of Alaska Fairbanks
a. Dual fuel-fired boiler (NH3)
b. Mid-sized diesel-fired boilers (NH3)
c. Small-sized diesel-fired boilers (NH3)
d. Large diesel-fired engine (NH3)
e. Small diesel-fired engines (NH3)
f. Pathogenic waste incinerator (NH3)
g. Material handling (NH3)
iv. Zehnder
a. Oil-fired simple cycle gas turbines (NH3)
b. Diesel-fired emergency generators (NH3)
c. Diesel-fired boilers (NH3)
iv. North Pole Power Plant
a. Oil-fired simple cycle gas turbines (NH3)
b. Oil-fired combined cycle gas turbines (NH3)
c. Large diesel-fired engine (NH3)
d. Propane-fired boiler (NH3)
3. The EPA is finalizing approval of the submitted chapters of the
Alaska Air Quality Control Plan for the Fairbanks PM2.5
Nonattainment Area, State effective January 8, 2020:
i. Volume II, Chapter III.D.7.01 Executive Summary
ii. Volume II, Chapter III.D.7.02 and Volume III Chapter III.D.7.02
Background and Overview of PM2.5 Rule
iii. Volume II, Chapter III.D.7.03 and Volume III Chapter III.D.7.03
Nonattainment Area Boundary and Design Episode Selection
vii. Volume II, Chapter III.D.7.13 and Volume III Chapter III.D.7.13
Assurance of Adequacy
viii. Volume II, Chapter III.D.7.15 Acronyms and Abbreviations
4. The EPA is finalizing approval of the submitted chapters of the
Alaska Air Quality Control Plan for the Fairbanks PM2.5
Nonattainment Area, State effective December 25, 2020:
i. Volume II, Chapter III.D.7.04 Ambient Air Quality and Trends
ii. Volume II, Chapter III.D.7.05 and Volume III Chapter III.D.7.05
PM2.5 Network and Monitoring Program
iii. Volume II, Chapter III.D.7.06 and Volume III Chapter III.D.7.06
Emissions Inventory for purposes of the 2019 base year emissions
inventory.
iv. Volume II, Chapter III.D.7.07 and Volume III Chapter III.D.7.07
Control Strategies for purposes of the following emission source
categories: solid fuel home heating device, residential and commercial
fuel oil combustion, charbroiler, used oil burner, incinerator,
NH3 BACT determination for the Aurora
[[Page 84670]]
Energy Chena Power Plant, PM2.5 and NH3 BACT
determination for the Doyon-Fort Wainwright Central Heating and Power
Plant; PM2.5 and NH3 BACT determination for the
University of Alaska Fairbanks Campus Power Plant except for the three
small diesel fired engines (EUs 23, 26, and 27); PM2.5 and
NH3 BACT determinations for Golden Valley Electric
Association Zehnder Power Plant; PM2.5 and NH3
BACT Determinations for the Golden Valley Electric Association North
Pole Power Plant; and Nonattainment New Source Review Requirements.
v. Volume II, Chapter III.D.7.08 Modeling, precursor demonstration for
the purposes of NOX and VOC emissions as it relates to BACM
and BACT requirements and control strategy requirements for
nonattainment areas subject to CAA section 189(d).
5. The EPA is finalizing a partial approval of Volume II, Chapter
III.D.7.12 Emergency Episode Plan, except for the contingency measure
portion, as meeting the BACM and BACT requirements for the solid fuel
heating device source category.\223\
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\223\ The EPA finalized a limited approval of the Volume II,
Chapter III.D.7.12 Emergency Episode Plan as SIP-strengthening on
September 24, 2021. 86 FR 52997, September 24, 2021, at pp. 52997,
53004.
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6. The EPA is finalizing approval and incorporating by reference
submitted regulatory changes into the Alaska SIP. Upon this final
approval, the Alaska SIP will include:
i. 18 AAC 50.075, except (d)(2), State effective January 8, 2020,
(solid fuel-fired heating devices may not exceed 20 percent opacity for
more than six minutes in any one hour when an air quality advisory is
in effect).
B. Final Disapproval
1. The EPA is finalizing disapproval of the submitted revisions to
the Alaska SIP as not meeting the following Serious plan and CAA
section 189(d) \224\ required elements for the 2006 24-hour
PM2.5 Fairbanks Nonattainment Area:
---------------------------------------------------------------------------
\224\ 42 U.S.C. 7513a(d).
i. Attainment projected emissions inventory requirements of CAA section
172(c)(1) \225\ and 40 CFR 51.1008(c)(2);
---------------------------------------------------------------------------
\225\ 42 U.S.C. 7502(c)(1).
---------------------------------------------------------------------------
ii. Additional measures (beyond those already adopted in previous
nonattainment plan SIP submissions for the area as RACM/RACT, BACM/
BACT, and MSM \226\ (if applicable)) under CAA section 189(d) and 40
CFR 51.1010(c).
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\226\ MSM is applicable if the EPA has previously granted an
extension of the attainment date under CAA section 188(e) for the
nonattainment area and NAAQS at issue. The EPA denied Alaska's
request to extend the Serious area attainment date for the Fairbanks
Serious Nonattainment Area.
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iii. Attainment demonstration and modeling requirements of CAA sections
188(c)(2) and 189(b)(1)(A) and 40 CFR 51.1003(c) and 51.1011.
iv. Reasonable further progress (RFP) requirements of CAA section
172(c)(2) \227\ and 40 CFR 51.1012.
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\227\ 42 U.S.C. 7502(c)(2).
---------------------------------------------------------------------------
v. Quantitative milestones requirements of CAA section 189(c) \228\ and
40 CFR 51.1013.
---------------------------------------------------------------------------
\228\ 42 U.S.C. 7513a(c).
---------------------------------------------------------------------------
vi. Contingency measures requirements of CAA section 172(c)(9) \229\
and 40 CFR 51.1014 applicable to Serious areas subject to CAA sections
189(b) and 189(d).
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\229\ 42 U.S.C. 7502(c)(9).
---------------------------------------------------------------------------
vii. Motor vehicle emission budgets requirements under 40 CFR
51.1003(d) and 93.118, without a protective finding under 40 CFR
93.120.
2. The EPA is finalizing disapproval of the submitted chapters of
the Alaska Air Quality Control Plan for the Fairbanks PM2.5
Nonattainment Area, State effective December 25, 2020:
i. Volume II, Chapter III.D.7.06 and Volume III Chapter III.D.7.06
Emissions Inventory for purposes of the 2024 attainment year emissions
inventory.
ii. Volume II, Chapter III.D.7.07 and Volume III Chapter III.D.7.07
Control Strategies for purposes of the wood seller requirements, coal-
fired heating devices, coffee roasters, weatherization and energy
efficiency, light-duty vehicle anti-idling, PM2.5 BACT
determinations for the Aurora Chena Power Plant, PM2.5 BACT
determinations for the University of Alaska Fairbanks Campus Power
Plant emission units 23, 26, and 27,
iii. Volume II, Chapter III.D.7.08 Modeling
iv. Volume II, Chapter II.D.7.09 Attainment Demonstration
v. Volume II, Chapter II.D.7.10 Reasonable Further Progress and
Quantitative Milestones.
vi. Volume II, Chapter II.D.7.11 Contingency Measures.
vii. Volume II, Chapter II.D.7.14 Conformity and Motor Vehicle
Emissions Budgets.
3. The EPA is finalizing limited disapproval of the submitted
chapters of the Alaska Air Quality Control Plan for the Fairbanks
PM2.5 Nonattainment Area, State effective December 25, 2020:
i. Volume II, Chapter II.D.7.12 Emergency Episode Plan. The EPA is
finalizing a limited disapproval because the contingency measure
components do not fully meet the contingency measure requirements of
CAA section 172(c)(9) and 40 CFR 51.1014.\230\
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\230\ The EPA finalized a limited approval of the Volume II,
Chapter III.D.7.12 Emergency Episode Plan as SIP-strengthening on
September 24, 2021. 86 FR 52997, September 24, 2021, at pp. 52997,
53004. The EPA's final limited disapproval does not prevent the
State from enforcing the Emergency Episode Plan, including the
contingency measure provisions. Nor does the EPA's limited
disapproval remove the Emergency Episode Plan, or any portion
thereof, from the approved SIP.
---------------------------------------------------------------------------
4. The EPA is finalizing partial disapproval of the Fairbanks
Serious Plan and Fairbanks 189(d) plan SIP submissions as not meeting
applicable control strategy BACM and BACT requirements (CAA section
189(b)(1)(B) \231\ and 40 CFR 51.1010(a)) for the following emission
source categories:
---------------------------------------------------------------------------
\231\ 42 U.S.C. 7513a(b)(1)(B).
i. Requirements for wood sellers
ii. Coal-fired heating devices
iii. Coffee roasters
iv. Weatherization and energy efficiency measures
v. Mobile source category (disapproving for lack of vehicle anti-idling
requirements).
5. The EPA is finalizing partial disapproval of the Fairbanks
Serious Plan and Fairbanks 189(d) plan SIP submissions as not meeting
applicable control strategy BACM and BACT requirements (CAA section
189(b)(1)(B) \232\ and 40 CFR 51.1010(a)) for the following emission
sources:
---------------------------------------------------------------------------
\232\ Id.
i. Chena Power Plant
a. Coal-fired boilers (PM2.5; SO2)
ii. Fort Wainwright
a. Coal-fired boilers (PM2.5; SO2)
b. Diesel-fired boilers (PM2.5; SO2)
c. Large diesel-fired engines (PM2.5; SO2)
d. Small emergency engines (PM2.5; SO2)
e. Materials handling (PM2.5)
iii. University of Alaska Fairbanks
a. Dual fuel-fired boiler (PM2.5; SO2)
b. Mid-sized diesel-fired boilers (PM2.5;
SO2)
c. Small-sized diesel-fired boilers (PM2.5;
SO2)
d. Large diesel-fired engine (PM2.5; SO2)
e. Small diesel-fired engines (PM2.5; SO2)
[[Page 84671]]
f. Pathogenic waste incinerator (PM2.5; SO2)
g. Material handling (PM2.5)
iv. Zehnder
a. Oil-fired simple cycle gas turbines (PM2.5;
SO2)
b. Diesel-fired emergency generators (PM2.5;
SO2)
c. Diesel-fired boilers (PM2.5; SO2)
v. North Pole Power Plant
a. Oil-fired simple cycle gas turbines (PM2.5;
SO2)
b. Oil-fired combined cycle gas turbines (PM2.5;
SO2)
c. Large diesel-fired engine (PM2.5; SO2)
d. Propane-fired boiler (PM2.5; SO2)
IV. Consequences of a Disapproval
This section explains the consequences of a disapproval of a
required SIP. The Act provides for the imposition of mandatory
sanctions and the promulgation of a Federal implementation plan (FIP)
if a State fails to obtain EPA approval of a plan revision that
corrects the deficiencies identified by the EPA in its disapproval.
A. The Act's Provisions for Mandatory Sanctions
If the EPA finalizes disapproval of a required SIP submission, such
as an attainment plan submission, or a portion thereof, CAA section
179(a) establishes the imposition of mandatory sanctions. If the EPA
has not affirmatively determined that the State has corrected the
identified deficiencies within 18 months after the effective date of
this action, then, pursuant to CAA section 179(a) and (b) and 40 CFR
52.31, the offset sanction identified in CAA section 179(b)(2) will
apply in the affected nonattainment area. If the EPA has not
affirmatively determined that the identified deficiencies have been
corrected within 6 months after the offset sanction is imposed, then
the highway funding sanction will apply in the affected nonattainment
area, in accordance with CAA section 179(b)(1) and 40 CFR 52.31.\233\
The sanctions will not take effect if, within 18 months after the
effective date of this finding, the EPA affirmatively determines that
the State has made a complete SIP submittal correcting the deficiencies
for which the finding was made.
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\233\ On April 1, 1996, the US Department of Transportation
published a document in the Federal Register describing the criteria
to be used to determine which highway projects can be funded or
approved during the time that the highway sanction is imposed in an
area. (See 61 FR 14363, April 1, 1996.)
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B. Federal Implementation Plan Provisions That Apply if a State Fails
To Submit an Approvable Plan
Additionally, if the EPA affirmatively determines that the State
has made a complete SIP submittal correcting the deficiencies for which
this finding was made and takes action to approve the submittal within
2 years of the effective date of this finding, EPA is not required to
promulgate a FIP for the affected nonattainment area.\234\
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\234\ CAA section 110(c), 42 U.S.C. 7410(c).
---------------------------------------------------------------------------
C. Ramifications Regarding Transportation Conformity
One consequence of the EPA action finalizing disapproval of a
control strategy SIP submission is a conformity freeze.\235\ Final
disapproval of the attainment demonstration SIP and the RFP plan
without a protective finding results in a conformity freeze beginning
on the effective date of the disapproval.\236\ The EPA is disapproving
in part the Fairbanks Serious Plan and Fairbanks 189(d) Plan, which are
attainment plans, because they do not include sufficient emissions
reductions to meet attainment and RFP requirements, as discussed above.
Therefore, the area is not eligible for a protective finding and a
freeze will begin on the effective date of the disapproval.\237\ The
area's Metropolitan Planning Organization (MPO), FAST Planning,
produces the long-range 20-year metropolitan transportation plan and
the short-range transportation improvement program. During a conformity
freeze, only projects in the first four years of the currently
conforming transportation plan and transportation improvement program
may be found to conform until another attainment demonstration SIP and
RFP plan are submitted and the motor vehicle emissions budgets are
found to be adequate or are approved and conformity to the revised
attainment demonstration and RFP provisions is determined.\238\ If the
SIP deficiency is not remedied after 24 months, when highway sanctions
are imposed under CAA 179(b)(1) and a conformity lapse occurs. No new
transportation plan, TIP, or project may be found to conform until
another control strategy implementation plan revision fulfilling the
same CAA requirements is submitted and conformity to this submission is
determined.\239\ However, we do note that exempt projects under 40 CFR
93.126 can proceed during a conformity lapse.\240\
---------------------------------------------------------------------------
\235\ Control strategy SIP revisions as defined in the
transportation conformity include reasonable further progress plans
and attainment demonstrations (40 CFR 93.101).
\236\ 40 CFR 93.120(a)(2).
\237\ 40 CFR 93.120(a)(3).
\238\ 40 CFR 93.120(a)(2).
\239\ 40 CFR 93.120(a)(1).
\240\ These include certain types of projects, such as safety,
mass transit, air quality, and other projects that do not involve or
directly lead to construction.
---------------------------------------------------------------------------
V. Incorporation by Reference
In this document, the EPA is finalizing its proposal to include
regulatory text in an EPA final rule that includes incorporation by
reference. In accordance with requirements of 1 CFR 51.5, the EPA is
incorporating by reference 18 AAC 50.075, except (d)(2), State
effective January 8, 2020 (requiring that solid fuel-fired heating
devices may not exceed 20 percent opacity for more than six minutes in
any one hour when an air quality advisory is in effect). The EPA has
made, and will continue to make, these materials generally available
through https://www.regulations.gov and at the EPA Region 10 Office
(please contact the person identified in the FOR FURTHER INFORMATION
CONTACT section of this document for more information).
VI. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www2.epa.gov/lawsregulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.,
because the EPA is taking action on Alaska's SIP submissions under
section 110 and subchapter I, part D of the Clean Air Act will not in-
and-of itself create any new information collection burdens but simply
disapproves portions of certain State plans submitted for inclusion
into the SIP. Burden is defined at 5 CFR 1320.3(b).
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant impact on a
substantial number of small entities. This action will not impose any
requirements on
[[Page 84672]]
small entities beyond those imposed by State law.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or Tribal governments or the private
sector. This action approves in part and disapproves in part portions
of certain pre-existing plans under State or local law and imposes no
new requirements. Accordingly, no additional costs to State, local, or
Tribal governments, or to the private sector, result from this action.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' This action
does not have federalism implications. It will not have substantial
direct effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132, because it merely approves in part and
disapproves in part portions of certain State SIP submissions required
by the CAA and does not alter the relationship or the distribution of
power and responsibilities established in the Clean Air Act. Thus,
Executive Order 13132 does not apply to this action.
F. Executive Order 13175, Coordination With Indian Tribal Governments
This action does not have Tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
submissions that the EPA is partially approving and partially
disapproving would not apply on any Indian reservation land or in any
other area where the EPA or an Indian Tribe has demonstrated that a
Tribe has jurisdiction, and the EPA notes that it will not impose
substantial direct costs on Tribal governments or preempt Tribal law.
Thus, Executive Order 13175 does not apply to this action.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 (62 FR 19885, April 23,
1997) as applying only to those regulatory actions that concern health
or safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it is not an
economically significant regulatory action based on health or safety
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997).
This action on Alaska's SIP submissions under section 110 and
subchapter I, part D of the Clean Air Act will not in-and-of itself
create any new regulations but simply approves in part and disapproves
in part portions of the Fairbanks Serious Plan and Fairbanks 189(d)
Plan submitted for inclusion into the SIP.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355,
May 22, 2001) because it is not a significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs the EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs the EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards. The EPA
believes that this action is not subject to requirements of section
12(d) of NTTAA because application of those requirements would be
inconsistent with the CAA.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
The EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' The EPA further defines the term fair treatment to mean
that ``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
Alaska did not evaluate environmental justice considerations as
part of its SIP submittal; the CAA and applicable implementing
regulations neither prohibit nor require such an evaluation. The EPA
performed an environmental justice analysis, as is described in the
``Environmental Justice Considerations'' section of the EPA's proposed
rulemaking. The analysis was done for the purpose of providing
additional context and information about this rule to the public, not
as a basis for this action.
K. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a
[[Page 84673]]
``major rule'' as defined by 5 U.S.C. 804(2).
L. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by February 5, 2024. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. See CAA section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Note: This document was signed electronically on November 20,
2023. The original, November 20, 2023, digital signature was
invalidated and therefore the document was re-signed prior to
publication.
Dated: November 28, 2023.
Daniel Opalski,
Acting Regional Administrator, Region 10.
For the reasons set forth in the preamble, 40 CFR part 52 is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart C--Alaska
0
2. Section Sec. 52.70 is amended:
0
a. In table 1 to paragraph (c) by revising the entry ``18 AAC 50.075'';
and
0
b. In table 5 to paragraph (e) by adding entries to the end of the
table for ``II.III.D.7.01 Executive Summary'', ``II.III.D.7.02
Background and Overview of PM2.5 Rule'', ``III.III.D.7.02
Appendix to Background and Overview of PM2.5 Rule'',
``II.III.D.7.03 Nonattainment Area Boundary and Design Episode
Selection'', ``III.III.D.7.03 Appendix to Nonattainment Area Boundary
and Design Episode Selection'', ``II.III.D.7.04 Ambient Air Quality and
Trends'', ``II.III.D.7.05 PM2.5 Network and Monitoring
Program'', ``III.III.D.7.05 Appendix to PM2.5 Network and
Monitoring Program'', ``II.III.D.7.06 Fairbanks Emissions Inventory
Data'', ``III.III.D.7.06 Appendix to Fairbanks Emissions Inventory
Data'', ``II.III.D.7.07 Control Strategies'', ``III.III.D.7.07 Appendix
to Control Strategies'', and ``II.III.D.7.08 Modeling'',
``III.III.D.7.08 Appendix to Modeling'', ``III.III.D.7.08 Appendix to
Modeling'', ``II.III.D.7.13 Assurance of Adequacy'', ``III.III.D.7.13
Appendix to Assurance of Adequacy'', and ``II.III.D.7.15 Acronyms and
Abbreviations''.
The revisions and additions read as follows:
Sec. 52.70 Identification of plan.
* * * * *
(c) * * *
Table 1 to Paragraph (c)--EPA-Approved Alaska Regulations
----------------------------------------------------------------------------------------------------------------
State
State citation Title/subject effective EPA approval date Explanations
date
----------------------------------------------------------------------------------------------------------------
Alaska Administrative Code Title 18--Environmental Conservation, Chapter 50--Air Quality Control (18 AAC 50)
----------------------------------------------------------------------------------------------------------------
18 AAC 50--Article 1. Ambient Air Quality Management
----------------------------------------------------------------------------------------------------------------
* * * * * * *
18 AAC 50.075.................... Solid Fuel-Fired 11/18/2020 12/5/2023, [INSERT except (d)(2).
Heating Device FEDERAL REGISTER
Visible Emission CITATION].
Standards.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
(e) * * *
Table 5 to Paragraph (e)--EPA-Approved Alaska Nonregulatory Provisions and Quasi-Regulatory Measures
----------------------------------------------------------------------------------------------------------------
Applicable State
Name of SIP provision geographic or submittal EPA approval date Explanations
nonattainment area date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Recently Approved Plans
----------------------------------------------------------------------------------------------------------------
* * * * * * *
II.III.D.7.01 Executive Summary.. Fairbanks North Star 12/13/2019 12/5/2023, [Insert ....................
Borough. FEDERAL REGISTER
citation].
II.III.D.7.02 Background and Fairbanks North Star 12/13/2019 12/5/2023, [Insert ....................
Overview of PM2.5 Rule. Borough. FEDERAL REGISTER
citation].
[[Page 84674]]
III.III.D.7.02 Appendix to Fairbanks North Star 12/13/2019 12/5/2023, [Insert ....................
Background and Overview of PM2.5 Borough. FEDERAL REGISTER
Rule. citation].
II.III.D.7.03 Nonattainment Area Fairbanks North Star 12/13/2019 12/5/2023, [Insert ....................
Boundary and Design Episode Borough. FEDERAL REGISTER
Selection. citation].
III.III.D.7.03 Appendix to Fairbanks North Star 12/13/2019 12/5/2023, [Insert ....................
Nonattainment Area Boundary and Borough. FEDERAL REGISTER
Design Episode Selection. citation].
II.III.D.7.04 Ambient Air Quality Fairbanks North Star 12/15/2020 12/5/2023, [Insert ....................
and Trends. Borough. FEDERAL REGISTER
citation].
II.III.D.7.05 PM2.5 Network and Fairbanks North Star 12/15/2020 12/5/2023, [Insert ....................
Monitoring Program. Borough. FEDERAL REGISTER
citation].
III.III.D.7.05 Appendix to PM2.5 Fairbanks North Star 12/15/2020 12/5/2023, [Insert ....................
Network and Monitoring Program. Borough. FEDERAL REGISTER
citation].
II.III.D.7.06 Fairbanks Emissions Fairbanks North Star 12/15/2020 12/5/2023, [Insert Approved for
Inventory Data. Borough. FEDERAL REGISTER purposes of the
citation]. Fairbanks 189(d)
Plan 2019 base year
emissions
inventory.
III.III.D.7.06 Appendix to Fairbanks North Star 12/15/2020 12/5/2023, [Insert Approved for
Fairbanks Emissions Inventory Borough. FEDERAL REGISTER purposes of the
Data. citation]. Fairbanks 189(d)
Plan 2019 base year
emissions
inventory.
II.III.D.7.07 Control Strategies. Fairbanks North Star 12/15/2020 12/5/2023, [Insert Approved for
Borough. FEDERAL REGISTER purposes of the
citation]. Fairbanks Serious
Plan and Fairbanks
189(d) Plan for the
following emission
source categories:
solid fuel home
heating device;
residential and
commercial fuel oil
combustion;
charbroiler; used
oil burner;
incinerator; PM2.5
and NH3 BACT
determination for
Doyon-Fort
Wainwright Central
Heating and Power
Plant; PM2.5 and
NH3 BACT
determination for
the University of
Alaska Fairbanks
Campus Power Plant
except for the
PM2.5 BACT
determination for
the three small
diesel fired
engines (EUs 23, 26
and 27); PM2.5 and
NH3 BACT
determinations for
Golden Valley
Electric
Association Zehnder
Power Plant; PM2.5
and NH3 BACT
Determinations for
the Golden Valley
Electric
Association North
Pole Power Plant;
and Nonattainment
New Source Review
Requirements.
[[Page 84675]]
III.III.D.7.07 Appendix to Fairbanks North Star 12/15/2020 12/5/2023, [Insert Approved for
Control Strategies. Borough. FEDERAL REGISTER purposes of the
citation]. Fairbanks Serious
Plan and Fairbanks
189(d) Plan for the
following emission
source categories:
solid fuel home
heating device;
residential and
commercial fuel oil
combustion;
charbroiler; used
oil burner;
incinerator; PM2.5
and NH3 BACT
determination for
Doyon-Fort
Wainwright Central
Heating and Power
Plant; PM2.5 and
NH3 BACT
determination for
the University of
Alaska Fairbanks
Campus Power Plant
except for the
PM2.5 BACT
determination for
the three small
diesel fired
engines (EUs 23, 26
and 27); PM2.5 and
NH3 BACT
determinations for
Golden Valley
Electric
Association Zehnder
Power Plant; PM2.5
and NH3 BACT
Determinations for
the Golden Valley
Electric
Association North
Pole Power Plant;
and Nonattainment
New Source Review
Requirements.
II.III.D.7.08 Modeling........... Fairbanks North Star 12/15/2020 12/5/2023, [Insert Approved for
Borough. FEDERAL REGISTER purposes of the
citation]. Fairbanks 189(d)
Plan for the PM2.5
precursor
demonstration for
NOX and VOC
emissions as it
relates to BACM/
BACT control
measure
requirements and
control strategy
requirements for
areas subject to
CAA section 189(d).
III.III.D.7.08 Appendix to Fairbanks North Star 12/15/2020 12/5/2023, [Insert Approved for
Modeling. Borough. FEDERAL REGISTER purposes of the
citation]. Fairbanks 189(d)
Plan for the PM2.5
precursor
demonstration for
NOX and VOC
emissions as it
relates to BACM/
BACT control
measure
requirements and
control strategy
requirements for
areas subject to
CAA section 189(d).
II.III.D.7.13 Assurance of Fairbanks North Star 12/13/2019 12/5/2023, [Insert ....................
Adequacy. Borough. FEDERAL REGISTER
citation].
III.III.D.7.13 Appendix to Fairbanks North Star 12/13/2019 12/5/2023, [Insert ....................
Assurance of Adequacy. Borough. FEDERAL REGISTER
citation].
II.III.D.7.15 Acronyms and Fairbanks North Star 12/13/2019 12/5/2023, [Insert ....................
Abbreviations. Borough. FEDERAL REGISTER
citation].
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 52.73 by adding paragraph (e)(2) to read as follows:
Sec. 52.73 Approval of plans.
* * * * *
(e) * * *
(2) Fairbanks.
(i) The EPA approves the revisions to the Alaska State
Implementation Plan submitted on December 13, 2019, and December 15,
2020, as meeting the following requirements applicable to the Fairbanks
North Star Borough 2006 24-hour PM2.5 Nonattainment Area:
(A) 2019 base year emissions inventory (Clean Air Act section
172(c)(3), 42 U.S.C. 7502(c)(3), 40 CFR 51.1008(c)(1)) for areas
subject to Clean Air Act section 189(d), 42 U.S.C. 7513a(d);
(B) PM2.5 precursor demonstrations for NOX
and VOC emissions (Clean Air Act section 189(e), 42 U.S.C. 7513a(e); 40
CFR 51.1006(a));
(C) Partial approval of the control strategy as meeting BACM and
BACT requirements under Clean Air Act section 189(b)(1)(B), 42 U.S.C.
7513a(b)(1)(B), and 40 CFR 51.1010(a) for ammonia controls for major
stationary sources, the solid fuel home heating device source category
(except the requirements for dry wood sellers), residential and
commercial fuel oil combustion source category; the charbroiler source
category, used oil burner source category, and mobile source category
(except for rejection of vehicle anti-idling requirements); and
(D) Nonattainment New Source Review Requirements under Clean Air
Act sections 172(c)(5), 189(b)(3), 189(d), and 189(e), 42 U.S.C.
7502(c)(5), 7513a(b)(3), 7513a(d), 7513a(e), and 40 CFR 51.165, 40 CFR
51.1003(b)(1)(viii), and 40 CFR 51.1003(c)(1)(viii).
(ii) The EPA disapproves the revisions to the Alaska State
Implementation Plan submitted on December 13, 2019, and December 15,
2020, as not meeting the following requirements applicable to the
Fairbanks North Star Borough 2006 24-hour PM2.5
Nonattainment Area:
(A) Attainment projected emissions inventory requirements of Clean
Air Act
[[Page 84676]]
section 172(c)(1), 42 U.S.C. 7502(c)(1), and 40 CFR 51.1008(c)(2));
(B) Partial disapproval as not meeting applicable control strategy
BACM and BACT requirements (Clean Air Act section 189(b)(1)(B), 42
U.S.C. 7513a(b)(1)(B), and 40 CFR 51.1010(a)) for the following
emission source categories: PM2.5 and SO2 control
analysis for major stationary sources, requirements for wood sellers,
coal-fired heating devices, coffee roasters, weatherization and energy
efficiency measures, mobile source category (disapproving for lack of
vehicle anti-idling requirements);
(C) Additional measures (beyond those already adopted in previous
nonattainment plan SIP submissions for the area as RACM/RACT, BACM/
BACT, and MSM (if applicable)) under Clean Air Act section 189(d), 42
U.S.C. 7513a(d), and 40 CFR 51.1010(c);
(D) Attainment demonstration and modeling requirements of Clean Air
Act sections 188(c)(2) and 189(b)(1)(A), 42 U.S.C. 7513(c)(2) and
7513a(b)(1)(A), and 40 CFR 51.1003(c) and 51.1011;
(E) Reasonable further progress (RFP) requirements of Clean Air Act
section 172(c)(2), 42 U.S.C. 7502(c)(2), and 40 CFR 51.1012;
(F) Quantitative milestones requirements of Clean Air Act section
189(c), 42 U.S.C. 7513a(c), and 40 CFR 51.1013;
(G) Contingency measures requirements of Clean Air Act section
172(c)(9), 42 U.S.C. 7502(c)(9), and 40 CFR 51.1014 applicable to
Serious areas subject to Clean Air Act sections 189(b) and 189(d), 42
U.S.C. 7513a(b) and 7513a(d); and
(H) Motor vehicle emission budgets requirements under 40 CFR
51.1003(d) and 93.118, without a protective finding under 40 CFR
93.120.
[FR Doc. 2023-26521 Filed 12-4-23; 8:45 am]
BILLING CODE 6560-50-P
