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Approval and Promulgation of Air Quality Implementation Plan; Alaska
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: February 5, 2007 (Volume 72, Number 23)]
[Proposed Rules]
[Page 5232-5239]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05fe07-15]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2006-1013; FRL-8275-8]
Approval and Promulgation of Air Quality Implementation Plan; Alaska
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA invites public comment on its proposal to approve numerous
revisions to the State of Alaska Implementation Plan. The Commissioner
of the Alaska Department of Environmental Conservation (ADEC) submitted
two requests to EPA dated May 6, 2005 and June 30, 2006 to revise
certain sections of ADEC's air quality regulations. The revisions were
submitted in accordance with the requirements of section 110 of the
Clean Air Act (hereinafter the Act or CAA). Although EPA proposes to
approve most of the submitted revisions, EPA proposes not to approve in
this rulemaking a number of submitted rule provisions which are
inappropriate for EPA approval.
DATES: Written comments must be received on or before March 7, 2007.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R10-OAR-2006-1013, by one of the following methods:
A. http://www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. E-Mail: cunningham.roylene@epa.gov.
C. Mail: Roylene A. Cunningham, EPA, Office of Air, Waste, and
Toxics (AWT-107), 1200 Sixth Avenue, Seattle, Washington 98101.
D. Hand Delivery: EPA, Region 10 Mailroom, 9th Floor, 1200 Sixth
Avenue, Seattle, Washington 98101. Attention: Roylene A. Cunningham,
Office of Air Waste, and Toxics (AWT-107). Such deliveries are only
accepted during normal hours of operation, and special arrangements
should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R10-OAR-
2006-1013. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through http://www.regulations.gov or e-mail.
The http://www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-mail
comment directly to EPA without going through http://www.regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., 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 either electronically in http://www.regulations.gov
or in hard copy during normal business hours at the Office of Air, Waste
and Toxics, EPA Region 10, 1200 Sixth Avenue, Seattle, Washington
98101. Copies of the State submittal are also available at the State of
Alaska, Department of Environmental Conservation, 410 Willoughby
Avenue, Ste 303, Juneau, Alaska 99811-1800.
FOR FURTHER INFORMATION CONTACT: Roylene A. Cunningham, (206) 553-0513,
or by e-mail at cunningham.roylene@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we'',
``us'', or ``our'' is used, we mean the EPA. Information is organized
as follows:
Table of Contents
I. Background of Submittal
II. Summary of Action
A. Provisions Approved by EPA and Incorporated by Reference
1. Documents, Procedures, and Methods Adopted by Reference
2. Opacity Standards
3. Nonroad Engines
4. Ambient Analysis Methods
5. Owner-Requested Limits
6. Preapproved Emission Limits
7. Prevention of Significant Deterioration (PSD) Permits
8. Nonattainment Area Major Stationary Source Permits
9. Source-Specific Minor Permits
10. General Minor Permits
11. Conclusion
B. Provisions Approved by EPA into the SIP, But Not Incorporated
by Reference
C. Provisions Not Approved by EPA
1. Provisions Not Related to Section 110 of the CAA
2. Provisions Related to Clean Units and the Pollution Control
Projects Exclusion
3. Ambient Air Quality Analysis Methods (18 AAC 50.215(a)(3))
4. Enforceable Test Methods (18 AAC 50.220(c)(2))
5. Excess Emissions (18 AAC 50.240)
6. Source Test Deadline (18 AAC 50.345(l))
7. Standard Operating Permit Condition II (18 AAC 50.346(a))
8. Electronic Applications (18 AAC 50.542(b)(2))
9. Revisions to Minor Permits (18 AAC 50.546(b))
III. Requested Sections to be Removed from the SIP
IV. Geographic Scope of SIP Approval
V. Statutory and Executive Order Reviews
I. Background of Submittal
On May 6, 2005, the Commissioner of ADEC submitted a request to EPA
to revise the Alaska SIP to include a completely revised version of the
State of Alaska's Air Quality Regulation in 18 AAC 50. These changes
became effective as a matter of State law on January 29, 2005.
On June 30, 2006 the Commissioner of ADEC submitted a request to
EPA to revise the Alaska SIP to include additional revisions to 18 AAC
50. The revised portions reflected in this submittal include adoption
by reference of updated EPA rules and changes to the portable oil and
gas drill rig regulations. These changes became effective as a matter
of State law on December 3, 2005. Included in the submittal was a
request that EPA exclude from consideration for SIP approval the
portions of 18 AAC 50 affected by the June 24, 2005, United States
Court of Appeals, District of Columbia Circuit decision which vacated
portions of EPA's new source review rules pertaining to clean units and
pollution control projects.
[[Page 5233]]
II. Summary of Action
A. Provisions Approved by EPA and Incorporated by Reference
The following discussion provides an overview of ADEC's revised
rules which EPA is proposing to incorporate by reference into the SIP,
including a discussion of the key changes from the current SIP and
EPA's evaluation of the changes. Note that any specific provisions or
subparagraphs of ADEC's submittals which EPA is proposing not to
approve are discussed in Section II.C. below.
The docket includes a technical support document which describes in
more detail the substantive changes to ADEC's rules that have been
submitted by Alaska as revisions to the SIP, EPA's evaluation of the
changes, and the basis for EPA's action.
1. Documents, Procedures, and Methods Adopted by Reference
ADEC revised 18 AAC 50.035(a) and (b) in order to update the dates
of their adoption by reference of Federal law, as well as State and
Federal guidance documents. Paragraph (c) is a new provision which
allows ADEC to use a test method other than one listed in 18 AAC
50.035(c) for a source-specific limit imposed in a permit. ADEC has
clarified that this provision does not authorize ADEC to change a test
method that is established in a SIP limit or a Federal standard. EPA is
approving 18 AAC 50.035(c) with that understanding.
2. Opacity Standards
ADEC revised the opacity standard for most sources from a three
minute aggregate to a six minute average. See 18 AAC 50.050 and 50.055.
The numeric value of the standard remains 20%. EPA has previously
approved the use of a six minute average opacity standard for several
source categories in Alaska in order to coincide with opacity limits in
the Federal NSPS. In these latest revisions, ADEC has amended 18 AAC
50.050(2) and 18 AAC 50.055 (1)-(3) to similarly adopt a six minute
average for more source categories. As explained in more detail in the
justification provided by ADEC, ADEC made this change in the form of
the standard to address a defense to enforcement raised by industry
with the three minute aggregate exception. ADEC further explained that,
although there may be some limited situations in which the revised
standard could be less stringent than the previous standard (when there
is a plume that is both high in opacity and intermittent), in the large
majority of cases, the new standard is more stringent. In the one
circumstance where ADEC expects that the three minute aggregate could
be more stringent than the six minute average--soot blowing at coal
fired power plants--ADEC has retained the opacity limit as an aggregate
standard. Based on the information provided by ADEC, EPA concludes that
changing the 20% opacity limit from a three minute exception to a six
minute average in 18 AAC 50.050(2) and 18 AAC 50.055 (1)-(3) will
continue to provide for attainment and maintenance of the NAAQS and
other CAA standards and is thus approvable.
3. Nonroad Engines
ADEC added 18 AAC 50.100 in January 1997 to address a change in the
1990 CAA by making clear that actual and potential emissions from
nonroad engines are not considered when determining whether a
stationary source is subject to construction or operating permit
programs in Alaska.
4. Ambient Analysis Methods
Section 50.215, renumbered from 18 AAC 50.510(a), sets forth
requirements for air quality modeling and analysis. Paragraph (c)
allows substitution or modification of an air quality model, provided
the source performs and submits a comparative analysis using a protocol
developed using a specified procedure, obtains ADEC approval of the
comparative protocol, and, in the case of air quality analysis required
by 18 AAC 50.306 (PSD), obtains EPA and ADEC approval of the
substituted or modified model. Federal law, however, requires written
approval from EPA for any substitution or modification of a model used
for minor and major new source review, including major new source
review in nonattainment areas (NNSR). See 40 CFR 51.160(f). ADEC has
advised EPA that it erred in limiting the cross-reference in 18 AAC
50.215(c)(3) to 18 AAC 50.306 (PSD) and that ADEC fully intended to
require and intends to obtain EPA approval of a model substitution or
modification for minor NSR (18 AAC 50.502-560) and major NNSR (18 AAC
50.311). ADEC has provided written assurance that ADEC will not allow a
model substitution or modification if an ambient air quality analysis
is required by minor NSR (18 AAC 50.502-560) or major NNSR (18 AAC
50.311) without prior written approval from EPA and that it will
correct this error in their next rulemaking. EPA is approving this
provision on that basis.
5. Owner-Requested Limits
ADEC proposes to include 18 AAC 50.225 in the SIP as a mechanism to
establish source-specific federally-enforceable limitations that
restrict a source's allowable emissions or potential to emit air
pollutants. EPA has issued criteria for determining when emission
limits contained in non-title V operating permits and similar
mechanisms are federally enforceable. See 54 FR 27274 (June 28, 1989).
The criteria include approval of the State mechanism into the SIP, a
legal obligation that the permittee adhere to the limits and other
requirements, that the limits and other requirements be at least as
stringent as any other applicable SIP or federally enforceable
requirements, that the limits and other requirements be permanent,
quantifiable, and otherwise enforceable as a practical matter, and that
the limits and other requirements be issued subject to public participation.
Owner-requested limits issued under 18 AAC 50.225 are issued only
after notice and opportunity for public comment and are contained in a
letter approval. Each approval issued to a source must include specific
monitoring, recordkeeping, and reporting requirements to ensure
compliance with the approved limitations and specifically requires a
statement that the owner/operator agrees to be bound by the terms of
the approval. The owner/operator can request that the limit be revoked
but only after the owner/operator obtains any permits that were avoided
by virtue of the owner-requested limit. EPA finds that 18 AAC 50.225 is
consistent with EPA guidance regarding Federally-enforceable operating
limits and proposes to approve this section.
6. Preapproved Emission Limits
ADEC proposes to include 18 AAC 50.230 [except subparagraph (d)],
an exclusionary rule that sets preapproved limits for NOX
emissions from diesel engines. EPA has recognized that, for certain
classes of sources, such as fuel burning equipment, it is possible for
States to establish enforceable emission limits that serve to limit
potential to emit through exclusionary rules that apply to certain
source categories. See Memorandum from JD. Kent Berry, Acting Director,
Air Quality Management Division, Office of Air Quality Planning and
Standards (OAQPS) entitled ``Guidance for State Rules for Optional
Federally-Enforceable Emissions Limits Based on Volatile Organic
Compound Use,'' dated October 15, 1993; Memorandum from John Seitz,
Director, OAQPS entitled ``Approaches to Creating Federally-Enforceable
Emission Limits,'' dated November 3, 1993; Memorandum from John Seitz,
Director, OAQPS, entitled
[[Page 5234]]
``Potential To Emit Guidance for Specific Source Categories,'' dated
April 14, 1998. To be approvable, an exclusionary rule must be
technically justified, require that the owner or operator specifically
apply for coverage under the rule, require the applicant to comply with
the limit in the rule, and provide that a violation of the rule is a
violation of the SIP.
The preapproved limit for NOX emissions from diesel
engines in ADEC's exclusionary rule is based on the amount of diesel
fuel used by a source during the year. ADEC has demonstrated that a
facility that limits their diesel fuel consumption to below 330,900
gallons per year limits their potential to emit NOX to below
100 tons per year. To operate under the preapproved limit, a source
must submit to ADEC a request to operate under a specific limit, and
must provide the information required for that limit. After this
notification, each source must follow specific monitoring,
recordkeeping, and reporting requirements to ensure compliance with the
limit. EPA has determined that 18 AAC 50.230 [except subparagraph (d)]
is consistent with EPA guidance for exclusionary rules.
7. Prevention of Significant Deterioration (PSD) Permits
Overview of Major New Source Review Program
Parts C and D of title I of the CAA, 42 U.S.C. 7470-7515, set forth
preconstruction review and permitting programs applicable to new and
modified stationary sources of air pollutants regulated under the CAA,
known as ``major New Source Review'' or ``major NSR.'' The major NSR
programs of the CAA include a combination of air quality planning and
air pollution control technology program requirements. States adopt
major NSR programs as part of their SIP.
Part C of title I of the CAA, 42 U.S.C. 7470-7492, is the
``Prevention of Significant Deterioration'' or ``PSD'' program, which
applies in areas that meet the NAAQS--``attainment'' areas--as well as
in areas for which there is insufficient information to determine
whether the area meets the NAAQS--``unclassifiable'' areas. Part D of
title I of the CAA, 42 U.S.C. 7501-7515, is called the ``Nonattainment
New Source Review'' or the ``NNSR'' program, which applies in areas
that are not in attainment of the NAAQS--``nonattainment areas.'' EPA
regulations implementing these programs are contained in 40 CFR 51.165,
51.166, 52.21, 52.24, and part 51, appendix S.
On December 31, 2002, EPA published final rule changes to the PSD
and NNSR programs. 67 FR 80186. On November 7, 2003, EPA published a
notice of final action on the reconsideration of the December 31, 2002
final rule changes. 68 FR 63021. In that November 7th final action, EPA
added the definition of ``replacement unit,'' and clarified an issue
regarding plantwide applicability limitations (PALs). The December 31,
2002 and the November 7, 2003, final actions, are collectively referred
to as the ``2002 NSR Reform Rules.''
The 2002 NSR Reform Rules made changes to five areas of the NSR
programs. In summary, the 2002 Rules: (1) Provide a new method for
determining baseline actual emissions; (2) adopt an actual-to-
projected-actual methodology for determining whether a major
modification has occurred; (3) allow major stationary sources to comply
with plant-wide applicability limits to avoid having a significant
emissions increase that triggers the requirements of the major NSR
program; (4) provide a new applicability provision for emissions units
that are designated clean units; and (5) exclude pollution control
projects from the definition of ``physical change or change in the
method of operation.''
After the 2002 NSR Reform Rules were finalized and effective (March
3, 2003), various petitioners challenged numerous aspects of the 2002
NSR Reform Rules, along with portions of EPA's 1980 NSR Rules (45 FR
5276, August 7, 1980). On June 24, 2005, the DC Circuit Court issued a
decision on the challenges to the 2002 NSR Reform Rules. See New York
v. United States, 413 F.3d 3 (DC Cir. 2005). In summary, the DC Circuit
Court vacated portions of the 2002 NSR Reform Rules pertaining to clean
units and pollution control projects, remanded a portion of the rules
regarding recordkeeping (40 CFR 52.21(r)(6) and 40 CFR 51.166(r)(6)),
and either upheld or did not comment on the other provisions included
as part of the 2002 NSR Reform Rules. EPA has not yet responded to the
Court's remand regarding the recordkeeping provisions.
The 2002 NSR Reform Rules require that State agencies adopt and
submit revisions to their SIP permitting programs implementing the
minimum program elements of the 2002 NSR Reform Rules no later than
January 2, 2006.
Alaska's PSD Submittal
Alaska's PSD program was originally approved into the SIP by EPA on
July 5, 1983, and has been revised several times. Newly revised 18 AAC
50.040(h) and 18 AAC 50.306 implement ADEC's current PSD program. ADEC
revised their PSD rules to essentially incorporate by reference the PSD
rules in 40 CFR 52.21, including the applicable provisions of the 2002
NSR Reform Rules, with a few exceptions. In general, ADEC chose to
incorporate by reference the Federal PSD rules in 40 CFR 52.21 rather
than the comparable provisions in 40 CFR 51.166, which set forth what
is required in a State's plan, because 40 CFR 52.21 is written to
directly state the requirements of an owner or operator.
In some cases, ADEC did adopt provisions of 40 CFR 51.166 rather
than the comparable provisions of 40 CFR 52.21 because 40 CFR 51.166
was a better fit for a SIP-approved PSD program. For example, ADEC
adopted 51.166(q)(2) to describe the public participation procedures
for PSD permits. The comparable provision in 40 CFR 52.21 refers to a
large set of Federal administrative procedures in 40 CFR 124, which
applies to water and other permits, and would be very cumbersome to try
to adopt for Alaska's purpose. ADEC also adopted 40 CFR 51.166(f),
Exclusions from Increment Consumption, because these exclusions are not
provided by 40 CFR 52.21, but they are allowed in a SIP-approved PSD
program.
ADEC also made regulatory changes to clarify how certain provisions
of 40 CFR 52.21 would be implemented by ADEC. For example, ADEC added
text to 18 AAC 50.306 to clarify the term ``administrator'' should be
read to mean the department in certain instances. ADEC also added
provisions for permit content with respect to monitoring,
recordkeeping, or reporting requirements. The language is similar to
that in ADEC's existing construction permit program and is intended to
allow ADEC to put in conditions when they are necessary so that the
applicant and ADEC can know whether operations comply with standards.
EPA is approving 18 AAC 50.040(h) and 18 AAC 50.306 as meeting the
requirements for SIP-approved PSD programs in 40 CFR 51.166. ADEC's
revised rules address baseline actual emissions, actual-to-projected-
actual applicability tests, and PALs and other currently applicable
provisions of the 2002 NSR Reform Rules. ADEC has not submitted for SIP
approval portions of the PSD rules that were recently vacated by the DC
Circuit Court, including the clean unit provisions and the pollution
control projects exclusion. As noted earlier, EPA has not yet responded
to the DC Circuit Court's remand of the recordkeeping provisions of
EPA's 2002
[[Page 5235]]
NSR Reform Rules. Alaska's rule contains recordkeeping requirements
that are essentially the same as the remanded Federal rule. While final
action by EPA with regard to the remand may require EPA to take further
action on this portion of Alaska's rules, at this time, the rules are
the same as existing Federal law.
8. Nonattainment Area Major Stationary Source Permits
Alaska's major NNSR program was originally approved into the SIP by
EPA on July 5, 1983, and has been revised several times. Newly revised
18 AAC 40.040(i) and 18 AAC 50.311 implement the major NNSR program in
Alaska. ADEC revised their major NNSR program to essentially
incorporate by reference the provisions set forth in 40 CFR 51.165,
including the 2002 NSR Reform Rules that were not vacated by the Court.
Portions of 40 CFR 51.165 simply refers to relevant provisions in
sections 172 and 173 of the CAA, including offsetting emissions and
lowest achievable emission rates. Rather than adopting the language in
the CAA statute by reference, 18 AAC 50.311 includes the text of the
relevant statutory language.
Similar to the PSD program in 18 AAC 50.306, ADEC also added
provisions for permit content with respect to monitoring,
recordkeeping, or reporting requirements. The language is similar to
that in ADEC's existing construction permit program and is intended to
allow ADEC to put in conditions when they are necessary so that the
applicant and ADEC can know whether operations comply with standards.
EPA is approving 18 AAC 40.040(i) and 18 AAC 50.311 as meeting the
requirements for SIP-approved major NNSR programs in 40 CFR 51.165 and
40 CFR part 51, appendix S. ADEC's revised rules address baseline
actual emissions, actual-to-projected-actual applicability tests, and
PALs and other currently applicable provisions of the 2002 NSR Reform
Rules. ADEC specifically did not submit portions of the NNSR rules that
were recently vacated by the DC Circuit Court, including the clean unit
provisions and the pollution control projects exclusion. As noted
earlier, EPA has not yet responded to the DC Circuit Court's remand of
the recordkeeping provisions of EPA's 2002 NSR Reform Rules. Alaska's
rule contains recordkeeping requirements that are essentially the same
as the remanded Federal rule. While final action by EPA with regard to
the remand may require EPA to take further action on this portion of
Alaska's rules, at this time the rules are the same as existing Federal law.
9. Source-Specific Minor Permits
EPA regulations require all SIPs to contain legally enforceable
procedures to ensure that construction or modification of a stationary
source will not cause a violation of a NAAQS or any applicable portions
of the control strategy. 40 CFR 51.160(a). For major stationary sources
and major modifications to major stationary sources, the PSD and major
NNSR programs satisfy this requirement. States are also required to
have new source review programs for minor sources meeting the
requirements of 40 CFR 51.160-51.164.
Alaska's minor NSR program was originally approved into the SIP by
EPA on July 5, 1983, and has been revised several times. In the SIP
submission before EPA, ADEC has substantially revised its minor NSR
program. Under ADEC's revised program, ADEC has expanded the categories
of minor sources that must obtain a permit prior to construction or
modification. Section 50.502 specifies source categories and size
thresholds that need a permit. Certain stationary sources--regardless
of emission rate--must obtain a minor permit before construction or
relocation and, if the source is not required to obtain a title V
permit, before operation. In addition, a minor permit is required for
construction of a new stationary source with a potential to emit
greater than the following size thresholds: 15 TPY PM-10; 40 TPY of
nitrogen oxides (NOX); 40 TPY of sulfur dioxides
(SOX); 0.6 TPY of lead; 100 TPY of carbon monoxide (CO)
within 10 kilometers of a nonattainment area. Other provisions govern
when a source needs a minor permit for construction or relocation of a
Portable Oil and Gas Operation or an emission unit with a rated
capacity of 10 million BTU or more per hour in a sulfur dioxide special
protection area.
ADEC has also established thresholds for determining when a source
needs a minor permit before a modification. A minor permit is required
prior to a modification if (1) the stationary source already has a
potential to emit more than the emission thresholds for construction of
new minor sources requiring permits, and (2) the modification would
cause an increase greater than 10 tpy of PM-10, 10 tpy of
NOX, 10 tpy of SOX, or 100 tpy of CO. In applying
the modification provisions, the owner or operator may choose either a
potential emissions or actual emission test, with certain limitations.
Finally, Section 50.508 allows ADEC to issue a minor permit if
requested by the owner or operator under certain circumstances.
Section 50.542 sets forth the procedures for permit review and
issuance. ADEC now has two administrative procedures for issuing
source-specific minor permits--a fast track procedure and a procedure
that has a full 30-day public comment period. For both procedures,
ADEC's revised rules change the method of public notice. Instead of
publishing the notice in a newspaper, ADEC now posts the notice on the
State ``Online Public Notice System'' website. ADEC still sends the
notice by mail or e-mail to anyone who requests to be on the State's
distribution list. EPA regulations require that public notice of minor
NSR permits be given by prominent advertisement in the area affected by
the source, and do not require that public notice be given in a
newspaper. See 40 CFR 51.161(b)(3).
Under the fast track procedures of 18 AAC 50.542(b), ADEC gives the
public 15 days to request a 30-day public comment period for certain
types of permits (i.e., 18 AAC 50.502) that meet specific requirements
as defined in the rule. The department issues the permit within 30 days
of receiving a complete application unless someone requests a public
comment period or ADEC determines the project would be predicted to
violate an ambient air quality standard. Other types of permits
specified in the rule have a 30-day public comment period, even if no
one requests one.
Section 50.542 also contains criteria for approval and denial of
minor permits. Importantly, ADEC is required to deny an application for
a minor permit if ADEC determines construction or operation of the
source would violate an emission limit in ADEC's rules or a NAAQS. The
rule contains additional criteria for approval and denial of minor
permits for sources in certain locations (e.g., Port of Anchorage) and
certain types of minor permits (e.g., PAL permit, owner requested limit).
Section 50.544 sets forth the content requirements for minor
permits, including identifying information, conditions necessary to
ensure compliance with any requirement in Alaska's statute or
regulations for stationary sources classified under 18 AAC 50.502, and
conditions necessary to ensure compliance with the NAAQS and certain
other sections for stationary sources requiring minor permits due to
the amount of their emissions. This section also requires an owner or
operator to provide a periodic affirmation as to whether their original
application and minor permit accurately
[[Page 5236]]
describe their stationary source and whether any changes may have been
made that would trigger the requirement for a new permit.
EPA has reviewed 18 AAC 50.502 to 50.546, ADEC's provisions for the
issuance of minor permits, and finds them to be consistent with the
requirements for minor NSR permits in 40 CFR 50.160-50.164.
10. General Minor Permits
18 AAC 50.560 authorizes ADEC to issue general minor permits to
allow the construction or operation of a category of stationary sources
that involve the same or similar types of operation, involve the same
type of emissions, and are subject to similar air quality control
requirements. In issuing a general minor permit, ADEC will evaluate
what permit conditions are necessary to assure compliance with each
ambient standard or control strategy for that category of stationary
source. An owner or operator would then have the choice of obtaining a
source-specific permit or applying for coverage under the general minor
permit. See 18 AAC 50.502(d). A general minor permit is subject to
public notice and comment when initially issued by ADEC, but not when
an individual source applies for coverage. The rule authorizes ADEC to
issue general minor permits that require a source applying for coverage
to receive specific approval from ADEC before being authorized to
construct or operate under the general permit, as well as general minor
permits that authorize a source to construct or operate upon ADEC's
receipt of an application for coverage. The general minor permit will
specify whether the source must wait for ADEC approval before
constructing or operating under the general minor permit.
ADEC will issue an application or notification form with each
general minor permit, which will specify the information an applicant
must provide to be covered under the general minor permit. This
information must include identifying information, information necessary
to show the stationary source qualifies for coverage under the general
permit, identification of all equipment covered by the general minor
permit, and a certification by the applicant that the stationary source
is capable of complying with all permit requirements.
The rule also specifies the content of general minor permits.
Importantly, general minor permits must meet the same permit content
requirements of minor permits under 18 AAC 50.544, including terms and
conditions to ensure that stationary sources constructing and operating
under the general minor permit will not cause or contribute to a
violation of the NAAQS. General minor permits can accommodate portable
sources, but permittees must notify ADEC of any change to a location
not identified in the permit application.
EPA has reviewed 18 AAC 50.560, ADEC's provision for the issuance
of general minor permits, and finds it to be consistent with the
requirements for minor NSR permits in 40 CFR 50.160-50.164.
11. Conclusion
As described in more detail above and in the technical support
document, EPA has determined that the following sections of Alaska's
regulations are consistent with the requirements of title I of the CAA
and proposes to approve them as part of the SIP and incorporate them by
reference into Federal law:
18 AAC 50.080 Ice Fog Standards; State effective January 18, 1997;
18 AAC 50.025 Visibility and Other Special Protection Areas; 18 AAC
50.070 Marine Vessel Visible Emission Standards, State effective June
21, 1998;
18 AAC 50.050 Incinerator Emission Standards, State effective May
3, 2002;
18 AAC 50.005 Purpose of Chapter; 18 AAC 50.010 Ambient Air Quality
Standards [except (7) and (8)]; 18 AAC 50.015 Air Quality Designations,
Classifications, and Control Regions; 18 AAC 50.020 Baseline Dates and
Maximum Allowable Increases, 18 AAC 50.045 Prohibitions; 18 AAC 50.055
Industrial Processes and Fuel-Burning Equipment [except (d)(2)(B)]; 18
AAC 50.100 Nonroad Engines; 18 AAC 50.200 Information Requests; 18 AAC
50.201 Ambient Air Quality Investigation; 18 AAC 50.205 Certification;
18 AAC 50.215 Ambient Air Quality Analysis Methods [except (a)(3)]; 18
AAC 50.220 Enforceable Test Methods [except (c)(2)]; 18 AAC 50.245 Air
Episodes and Advisories; 18 AAC 50.250 Procedures and Criteria for
Revising Air Quality Classifications; 18 AAC 50.301 Permit Continuity;
18 AAC 50.302 Construction Permits; 18 AAC 50.306 Prevention of
Significant Deterioration (PSD) Permits [except (b)(2) and (b)(3)]; 18
AAC 50.311 Nonattainment Area Major Stationary Source Permits; 18 AAC
50.345 Construction and Operating Permits: Standard Permit Conditions
[except (b), (c)(3), and (l)]; 18 AAC 50.508 Minor Permits Requested by
the Owner or Operator [except (1) and (2)]; 18 AAC 50.546 Minor
Permits: Revisions [except (b)]; 18 AAC 50.560 General Minor Permits;
18 AAC 50.900 Small Business, State effective October 1, 2004;
18 AAC 50.542 Minor Permit: Review and Issuance [except (b)(2),
(f)(4), (f)(5), and (g)(1) but only with respect to clean units and
pollution control projects], State effective December 1, 2004;
18 AAC 50.225 Owner-Requested Limits; 18 AAC 50.230 Preapproved
Emission Limits [except (d)]; 18 AAC 50.544 Minor Permits: Content
[except (e)], State effective January 29, 2005;
18 AAC 50.035 Documents, Procedures, and Methods Adopted By
Reference [except (b)(4)]; 18 AAC 50.040 Federal Standards Adopted by
Reference [except (a), (b), (c), (d), (e), (g), (h)(17), (h)(18),
(h)(19), (i)(7), (i)(8), (i)(9), and (j)]; 18 AAC 50.502 Minor Permits
for Air Quality Protection [except (g)(1) and (g)(2)]; 18 AAC 50.540
Minor Permit: Application [except (f) and (g)];18 AAC 50.990
Definitions [except (21), and (77)], State effective December 3, 2005.
B. Provisions Approved by EPA Into the SIP, But Not Incorporated by
Reference
EPA is proposing to approve the following section as part of the
SIP, but not to incorporate it by reference into Federal law: 18 AAC
50.030 State Air Quality Control Plan, State effective October 1, 2004.
This provision does not regulate air emissions, but rather, describes
general authorities such as procedural and enforcement authorities.
Incorporation by reference of such provisions into Federal law is
unnecessary and could potentially conflict with EPA's independent
authorities. Therefore, EPA is proposing to not incorporate by
reference 18 AAC 50.030 into the SIP and to remove the previous version
of this regulation from Alaska's incorporation by reference section of
the Alaska SIP, as follows: 18 AAC 50.030 State Air Quality Control
Plan, State effective September 21, 2001.
C. Provisions Not Approved by EPA
EPA is proposing not to approve certain provisions of ADEC's
regulations, either because EPA believes such provisions are
inconsistent with the requirements of the CAA or because ADEC has
requested EPA not to approve such provisions into the SIP.
1. Provisions Not Related to Section 110 of the CAA
EPA is not approving the following provisions because they are not
related to the criteria pollutants regulated under section 110 of the
CAA: 18 AAC 50.010(7) and (8); 18 AAC 50.035(b)(4); 18 AAC 50.040(a),
(b), (c), (d), (e), (g), and (j); 18 AAC 50.055(d)(2)(B); 18 AAC
50.316; and 18 AAC 50.345(b) and (c)(3).
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2. Provisions Related to Clean Units and the Pollution Control Projects
Exclusion
At ADEC's request, we are not incorporating or approving into the
SIP portions of the Federal 2002 Major NSR Reform Rules that were
recently vacated by the DC Circuit Court relating to the clean unit
provisions and the pollution control projects exclusion. These
provisions include: 18 AAC 50.040(h)(17), (h)(18), (h)(19), (i)(7),
(i)(8), and (i)(9); 18 AAC 50.306 (b)(2) and (b)(3); 18 AAC
50.502(g)(1) and (g)(2); 18 AAC 50.508(1) and (2); 18 AAC 50.509; 18
AAC 50.540(f) and (g); 18 AAC 50.542(f)(4), (f)(5), and, with respect
to the reference to clean units and pollution control projects only,
(g)(1); and 18 AAC 50.544(e); and 18 AAC 50.990(21) and (77).
3. Ambient Air Quality Analysis Methods (18 AAC 50.215(a)(3))
18 AAC 50.215 sets forth requirements for air quality monitoring
and analysis. Paragraphs (a)(1) and (a)(2) specify the procedures for
obtaining air monitoring data, but paragraph (a)(3) authorizes ADEC to
approve any alternative method that ADEC determines is
``representative, accurate, verifiable, capable of replication.'' In
essence, this paragraph allows ADEC to modify requirements relied on to
attain and maintain the NAAQS without going through a SIP revision. As
such, it is not approvable.
Section 110(i) of the CAA specifically precludes States from
changing the requirements of the SIP except through SIP revisions
approved by EPA. SIP revisions will be approved by EPA only if they
meet all requirements of section 110 of the CAA and the implementing
regulations at 40 CFR part 51. See CAA section 110(l); 40 CFR 51.104.
Section 51.104(d) specifically states that in order for a variance to
be considered for approval as a SIP revision, the State must submit it
in accordance with the requirements of 40 CFR 51.104, which includes
the public notice, comment and hearing provisions of 40 CFR 51.102.
The SIP revision requirements may be satisfied if the director's
discretion is constrained by sufficiently specific, objective, and
replicable criteria to determine if the alternative method will, in
fact, be at least as effective as the required methods in terms of
emission rates and ambient impacts. In this case, although the rule
states that the alternative must be ``representative, accurate,
verifiable, capable of replication,'' the rule does not contain
procedures for ensuring that is the case. Therefore, it is not
appropriate for EPA to approve this provision into the SIP.
4. Enforceable Test Methods (18 AAC 50.220(c)(2))
Paragraph 50.220(c)(1) specifies reference test methods to be used
in source tests to determine compliance with applicable requirements.
Paragraph (c)(2) authorizes ADEC to approve the use of an alternative
method using the procedure specified in 40 CFR part 63, appendix A,
method 301. In essence, paragraph (c)(2) authorizes ADEC to issue
variances from regulatory requirements, including SIP, NSPS, and NESHAP
requirements. EPA approved this provision into the SIP on November 18,
1998 [63 FR 63983]. ADEC made minor changes to 18 AAC 50.220 and has
submitted the entire provision for inclusion in the SIP.
EPA believes that it erred when it approved this subparagraph as
part of the SIP. As an initial matter, ADEC does not have authority to
approve alternatives to NSPS and NESHAP standards except to the extent
EPA has delegated that authority to ADEC. EPA does not delegate to
States authority to approve ``major changes'' to test methods for NSPS
and NESHAP standards. In addition, as discussed above, section 110(i)
of the CAA specifically precludes States from changing the requirements
of the SIP except through SIP revisions approved by EPA, and SIP
revisions will be approved by EPA only if they meet all requirements of
section 110 of the CAA and the implementing regulations at 40 CFR part
51. See CAA section 110(l); 40 CFR 51.104. Section 51.104(d)
specifically states that in order for a variance to be considered for
approval as a SIP revision, the State must submit it in accordance with
the requirements of 40 CFR 51.104, which includes the public notice,
comment and hearing provisions of 40 CFR 51.102.
Paragraph (c)(2) does not meet all of the requirements of section
110 of the CAA, such as ensuring attainment and maintenance of the
NAAQS. As discussed above, SIP revision requirements may be satisfied
if the director's discretion is constrained by sufficiently specific,
objective, and replicable criteria to determine if the alternative
method will, in fact, be at least as effective as the required methods
in terms of emission rates and ambient impacts. In this case, although
paragraph (c)(2) requires that ADEC use the procedure in 40 CFR part
63, appendix A, method 301 in evaluating whether to approve an
alternative method, EPA does not believe that the procedures in method
301 are sufficiently replicable so as to adequately constrain ADEC's
discretion. In addition, there is nothing in this provision that would
require alternatives to test methods required in a permit to be
approved through appropriate revision procedures. For these reasons, it
is not appropriate for EPA to approve this provision into the SIP.
Section 110(k)(6) of the CAA authorizes EPA, upon a determination
that EPA's action approving, disapproving or promulgating any State
implementation plan or plan revision (or any part thereof) was in
error, to revise such action as appropriate in the same manner as the
approval, disapproval or promulgation. In making such a correction, EPA
must provide such determination and the basis therefore to the State
and the public. EPA is by this proposal notifying ADEC and the public
that EPA is removing 18 AAC 50.220(c)(2) from the SIP and from
incorporation by reference into Federal law. It is important to
emphasize that if ADEC approves the use of alternative methods in
reliance on 18 AAC 50.220(c)(2) as an alternative to an ADEC regulation
or permit that has been approved as part of the SIP, EPA is not
precluded from enforcing the Federally-approved SIP limit against the
source. The granting of an alternative method of compliance by ADEC to
a SIP requirement does not change the Federally-enforceable SIP
requirement for that source unless and until the alternative has been
approved by EPA.
5. Excess Emissions (18 AAC 50.240)
EPA's interpretation of the CAA for State excess emission
provisions is set forth in, among other documents, Memorandum from
Steven A. Herman, Assistant Administrator for Enforcement and
Compliance Monitoring, and Robert Perciasepe, Assistant Administrator
for Air and Radiation, to the Regional Administrators, entitled ``State
Implementation Plans: Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown'' (September 20, 1999) (1999 Excess
Emissions Policy). That policy indicates that because excess emissions
might aggravate air quality so as to prevent attainment and maintenance
of the NAAQS or jeopardize the PSD increments, all periods of excess
emissions are considered violations of applicable emission limitations.
However, the 1999 Excess Emission Policy recognizes that in certain
circumstances, States and EPA have enforcement discretion to refrain
from taking enforcement action for excess emissions. In addition, the
policy also indicates that States can
[[Page 5238]]
include in their SIPs provisions that would, in the context of an
enforcement action for excess emissions, excuse a source from penalties
(but not injunctive relief) if the source can demonstrate it meets
certain objective criteria. This is in essence a limited affirmative
defense to a penalty action. Finally, the Policy states that EPA does
not intend to approve SIP revisions that would recognize a State
director's decision to bar EPA's or citizen's ability to enforce
applicable requirements.
Although ADEC has made only minor changes to 18 AAC 50.240 since it
was approved by EPA in 1998, approval of the minor changes could be
interpreted to imply that EPA believed 18 AAC 50.240 was consistent
with the requirements of the CAA. EPA has reviewed 18 AAC 50.240,
however, and does not believe it is consistent with EPA's
interpretation of the CAA regarding the types of affirmative defense
provisions we can approve into SIPS for several reasons. First, an
affirmative defense to a penalty action is not appropriate where a
single source or small group of sources has the potential to cause an
exceedance of the NAAQS or PSD increments. See 1999 Excess Emissions
Policy, pp. 2-3, Attachment pp. 3 and 5. The Alaska regulation does not
contain provisions to address this criterion. Second, an affirmative
defense for excess emissions due to certain unavoidable events cannot
extend to State law provisions that derive from Federally promulgated
performance standards or emission limits, such as NSPS or NESHAP
standards and does not extend to PSD permits unless the excess
emissions were accounted for in the modeling and in the BACT
determination. Alaska's excess emission rule does not appear to be so
limited in scope. Third, Alaska's excess emissions rule does not
sufficiently address all of the criteria for ensuring that excess
emissions due to startup, shutdown, and malfunction are truly
unavoidable and limited to the maximum extent possible in duration and
impact on air quality. See 1999 Excess Emissions Policy, Attachment pp.
3-6. Although a State need not adopt the precise language of the 1999
Excess Emissions Policy, State excess emission provisions must address
the essential elements of the criteria in the policy to be consistent
with the CAA. Fourth, 18 AAC 50.240(e) provides an affirmative defense
for excess emissions due to scheduled maintenance provided certain
criteria are met. This is inappropriate under the CAA because sources
should be able to schedule maintenance that might otherwise lead to
excess emissions to coincide with maintenance of production equipment
or other facility shutdowns. In this regard, it is important to note
that the 1999 Excess Emissions Policy does not discuss allowing an
affirmative defense for excess emissions during maintenance activities.
This omission was intentional and based on EPA's interpretation of the
CAA that any excess emissions during maintenance activities should be
addressed only through the exercise of enforcement discretion and not
through the provision of an affirmative defense to penalties. Finally,
18 AAC 50.240 does not make clear that ADEC's decision that the
criteria for obtaining the affirmative defense from penalty are met is
not binding on EPA or citizens. See 1999 Excess Emission Policy, p. 3,
Attachment p. 2. In summary, although ADEC has made only minor changes
to 18 AAC 50.240, EPA is not approving the changes because to do so
would imply that EPA believes that 18 AAC 50.240 meets CAA requirements
for SIP excess emission provisions.
6. Source Test Deadline (18 AAC 50.345(l))
Paragraph (l) is a standard permit condition that gives ADEC
discretion to approve a request from the permittee to delay a source
test deadline established by ADEC. Importantly, this provision does not
give ADEC authority to extend source test deadlines established in
requirements promulgated by EPA, such as NSPS or NESHAPS. In addition,
EPA is not aware of any Alaska SIP provisions that impose a requirement
to conduct a source test within a specified period of time so this
provision appears to be limited to source test deadlines established in
permits issued by ADEC. EPA does not believe it can approve this
provision, however, because it would give ADEC unbounded discretion to
change the source testing requirements of a federally-enforceable
permit without revising the permit
7. Standard Operating Permit Condition II (18 AAC 50.346(a))
This paragraph incorporates Standard Operating Permit Condition II,
which contains standard monitoring conditions for 18 AAC 50.110 Air
Pollution Prohibited, a rule prohibiting emissions detrimental to human
health or welfare, animal or plant life, or property, or which would
unreasonably interfere with the enjoyment of life or property. EPA does
not believe it is appropriate to approve 18 AAC 50.346(a) into the SIP
because it only requires corrective action after the permittee or ADEC
determines a violation has occurred. EPA does not believe requiring
corrective action after a violation has occurred can be construed as
monitoring that reasonably assures compliance with the underlying
applicable requirement. To the extent a SIP requirement includes
monitoring, the monitoring must be sufficient to reasonably assure
compliance with the requirement.
8. Electronic Applications (18 AAC 50.542(b)(2))
This subparagraph allows ADEC to require the owner/operator to
submit their permit applications online. ADEC did not submit the
appropriate documentation for us to evaluate the approvability of
Alaska's Online System with respect to EPA's Cross-Media Electronic
Reporting Rule (CROMERR). See 70 FR 59848 (October 13, 2005).
Therefore, EPA is not approving paragraph (b)(2) to allow for
electronic submissions.
9. Revisions to Minor Permits (18 AAC 50.546(b))
This subparagraph authorizes ADEC to revise ``non-substantive
elements of a minor permit without further administrative procedures.''
The regulation, however, does not describe what type of changes will be
considered ``non-substantive.'' Although it may be appropriate to allow
some class of permit changes to be made administratively, this
provision does not adequately describe the class of changes. Therefore,
EPA does not believe this provision is sufficiently enforceable to meet
the basic enforceability requirements for SIPs.
III. Requested Sections to be Removed from the SIP
Alaska has requested that EPA remove certain provisions from the
SIP because they have been previously repealed by ADEC or because they
are not required elements of a SIP under title I of the CAA.
The following sections have been repealed by ADEC and the
substantive requirements of these sections have been included in new
and revised sections, which EPA is proposing to approve: 18 AAC 50.090
Ice Fog Limitations, State effective May 26, 1972; 18 AAC 50.300 Permit
to Operate and 18 AAC 50.400 Application Review & Issuance of Permit to
Operate, State effective July 21, 1991 and April 23, 1994; 18 AAC
50.520 Emissions and Ambient Monitoring, State effective July 21, 1991;
18 AAC 50.530 Circumvention, State effective June 7, 1987; 18 AAC
50.310 Revocation or Suspension of Permit, State effective May 4, 1980;
18 AAC 50.600
[[Page 5239]]
Reclassification Procedures & Criteria, State effective November 1,
1982; 18 AAC 50.620 State Air Quality Control Plan, State effective
January 4, 1995; and 18 AAC 50.900 Definitions, State effective July
21, 1991 and January 4, 1995.
Removal of these now-repealed sections from the SIP does not make
the SIP less stringent because the substantive provisions of these
sections are included elsewhere in ADEC's regulations and are being
submitted for inclusion into the SIP. Therefore, EPA is approving
removal of these sections from the SIP.
ADEC has also requested that EPA remove the following fee-related
provisions from the SIP: 18 AAC 50.400 Permit Administration Fees, 18
AAC 50.420 Billing Procedures, and 18 AAC 50.430 Appeal Procedures,
State effective January 18, 1997. These provisions establish fees for
issuance of permits and permit-related actions. State fee provisions
that are not economic incentive programs and are not designed to
replace or relax a SIP emission limit are generally not appropriate for
inclusion into the SIP. While it is appropriate for States to implement
fee provisions, for example, to recover costs for issuing permits, it
is generally not appropriate to make State fee collection federally
enforceable. Therefore, EPA is removing from the SIP 18 AAC 50.400
Permit Administration Fees, 18 AAC 50.420 Billing Procedures, and 18
AAC 50.430 Appeal Procedures.
IV. Geographic Scope of SIP Approval
EPA's approval of the SIP does not extend to sources or activities
located in Indian Country, as defined in 18 U.S.C. 1151. EPA will
continue to implement the CAA in Indian Country in Alaska because ADEC
has not adequately demonstrated authority over sources and activities
located within the exterior boundaries of the Annette Island Reserve
and other areas of Indian Country in Alaska.
V. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves State law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by State law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under State law and does
not impose any additional enforceable duty beyond that required by
State law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4).
The rule also does not have Tribal implications because it will not
have a substantial direct effect on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes, as specified by Executive Order 13175
(59 FR 22951, November 9, 2000).
This action also does not have Federalism implications because it
does 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 (64 FR 43255, August
10, 1999). This action merely proposes to approve a State rule
implementing a Federal Requirement, and does not alter the relationship
or the distribution of power and responsibilities established in the
CAA. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
In reviewing SIP submissions, EPA's role is to approve submissions
provided that they meet the criteria of the CAA. In this context, in
the absence of a prior existing requirement for the State to use
voluntary consensus standards (VCS), EPA has no authority to disapprove
a SIP submission for failure to use VCS. It would thus be inconsistent
with applicable law for EPA to use VCS in place of a SIP submission
that otherwise satisfies the provisions of the CAA. Thus the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule
does not impose an information collection burden under the provisions
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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.
Dated: January 26, 2007.
Julie Hagensen,
Acting Regional Administrator, Region 10.
[FR Doc. E7-1802 Filed 2-2-07; 8:45 am]
BILLING CODE 6560-50-P