[Federal Register Volume 79, Number 213 (Tuesday, November 4, 2014)]
[Proposed Rules]
[Pages 65366-65369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26181]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2014-0753, FRL-9918-86-Region 10]
Approval and Promulgation of Implementation Plans; Alaska:
Nonattainment New Source Review
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve revisions to the Alaska State Implementation Plan (SIP)
submitted by the Commissioner of the Alaska Department of Conservation
(ADEC) on December 11, 2009, November 29, 2010, December 10, 2012,
January 28, 2013, July 1, 2014, and October 24, 2014. These revisions
update the State of Alaska's adoption by reference of the Federal
preconstruction permitting regulations for large industrial (major
source) facilities located in designated nonattainment areas, referred
to as the Nonattainment New Source Review (major NNSR) program. The
major NNSR program is designed to ensure that major stationary sources
of air pollution are constructed or modified in a manner that is
consistent with attainment and maintenance of the National Ambient Air
Quality Standards (NAAQS).
DATES: Comments must be received on or before December 4, 2014.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OAR-2014-0753, by any of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
Mail: Donna Deneen, EPA Region 10, Office of Air, Waste
and Toxics (AWT-150), 1200 Sixth Avenue, Suite 900, Seattle, WA 98101
Email: [email protected].
Hand Delivery: EPA Region 10 Mailroom, 9th Floor, 1200
Sixth Avenue, Suite 900, Seattle, WA 98101. Attention: Donna Deneen,
Office of Air, Waste and Toxics, AWT-150. 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-
2014-0753. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information the
disclosure of which is restricted by statute. Do not submit information
that you consider to be CBI or otherwise protected through
www.regulations.gov or email. The www.regulations.gov Web site is an
``anonymous access'' system, which means the EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to the EPA without
going through www.regulations.gov your email 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, the EPA recommends that you include your
name and other
[[Page 65367]]
contact information in the body of your comment and with any disk or
CD-ROM you submit. If the EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, the 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
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
the disclosure of which is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically in
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, WA 98101.
FOR FURTHER INFORMATION CONTACT: Donna Deneen at telephone number:
(206) 553-6706, email address: [email protected], or the above EPA,
Region 10 address.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'',
``us'' or ``our'' is used, it is intended to refer to the EPA.
Table of Contents
I. Purpose of Proposed Major NNSR Action
II. Background for the Proposed Major NNSR Action
III. Effect of the January 4, 2013 D.C. Circuit Decision Regarding
PM2.5 Implementation Under Subpart 4
IV. Alaska's Revisions to Major NNSR
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. Purpose of Proposed Major NNSR Action
The EPA is proposing to approve revisions to the Alaska SIP related
to major NNSR submitted by ADEC on December 11, 2009, November 29,
2010, December 10, 2012, January 28, 2013, July 1, 2014, and October
24, 2014.\1\ Alaska's major NNSR program essentially adopts by
reference the Federal preconstruction permitting regulations for major
sources in nonattainment areas at 40 CFR 51.165 (Permit Requirements).
The key changes in Alaska's SIP revisions are the update of the
adoption by reference citation dates in 18 AAC 50.040(i) to the Federal
rules in 40 CFR 51.165, and the updated definition of ``regulated NSR
pollutant'' in 18 AAC 50.040(i)(1)(B) to reflect the current Federal
definition of ``regulated NSR pollutant'' for nonattainment areas at 40
CFR 51.165(a)(1)(xxxvii). These and other related revisions addressed
in this action are discussed below.
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\1\ This submittal also withdrew a September 24, 2014, submittal
determined to contain an error.
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In a previous action relating to the revisions submitted on
December 11, 2009, November 29, 2010, December 10, 2012, and January
28, 2013, the EPA deferred action on the portions of those submittals
relating to major NNSR. (September 19, 2014; 79 FR 56268). In this
proposal we are taking action on the deferred portions of those
submittals. In this action we are also addressing the major NNSR
portion of revisions submitted on July 1, 2014 and October 24, 2014.
Where there are multiple amendments to the same provision, we have
limited our review to only the most recently submitted amendment to any
particular provision. We intend to address the remaining portions of
the SIP submittals that are not related to major NNSR, and that we have
not yet acted on, in one or more separate actions.
II. Background for the Proposed Major NNSR Action
On July 18, 1997, the EPA revised the NAAQS for particulate matter
to add new standards for fine particles, using PM2.5 as the
indicator. Previously, the EPA used PM10 (inhalable
particles smaller than or equal to 10 micrometers in diameter) as the
indicator for the particulate matter NAAQS. The EPA established health-
based (primary) annual and 24-hour standards for PM2.5,
setting an annual standard at a level of 15 micrograms per cubic meter
([micro]g/m\3\) and a 24-hour standard at a level of 65 [micro]g/m\3\
(62 FR 38652). At the time the 1997 primary standards were established,
the EPA also established welfare-based (secondary) standards identical
to the primary standards. The secondary standards are designed to
protect against major environmental effects of PM2.5, such
as visibility impairment and materials damage. The State of Alaska had
no areas violating the annual or 24-hour 1997 PM2.5 NAAQS at
the time the standards were promulgated.
On October 17, 2006, the EPA revised the primary and secondary
PM2.5 NAAQS (71 FR 61236). In that rulemaking, the EPA
lowered the 24-hour PM2.5 NAAQS to 35 [micro]g/m\3\ and
retained the existing annual PM2.5 NAAQS of 15 [micro]g/
m\3\. In 2009, as a result of the change in the 24-hour
PM2.5 NAAQS from 65 [micro]g/m\3\ to 35 [micro]g/m\3\, the
EPA designated Fairbanks, Alaska as nonattainment based on 2006-2008
monitoring data (74 FR 58688, November 13, 2009). The Fairbanks
PM2.5 nonattainment area covers the expanded part of
Fairbanks North Star Borough (FNSB) and is currently the only
nonattainment area in the State of Alaska.
On May 16, 2008, the EPA finalized a rule to implement the
PM2.5 NAAQS, including changes to the New Source Review
(NSR) program (2008 NSR PM2.5 Rule, 73 FR 28321). The 2008
NSR PM2.5 Rule revised the NSR program requirements to
establish a framework for implementing preconstruction permit review
for the PM2.5 NAAQS in both attainment and nonattainment
areas. The 2008 NSR PM2.5 Rule also established the
following NSR requirements to implement the PM2.5 NAAQS: (1)
Required NSR permits to address directly emitted PM2.5 and
precursor pollutants; (2) established significant emission rates for
direct PM2.5 and precursor pollutants, including sulfur
dioxide (SO2) and oxides of nitrogen (NOX); (3)
established PM2.5 emission offsets for nonattainment areas;
and (4) required states to account for gases that condense to form
particles in PM2.5 emission limits. Alaska's regulations,
submitted to the EPA on December 11, 2009, November 29, 2010, December
10, 2012, January 28, 2013, July 1, 2014, and October 24, 2014, were
revised to address the requirements of the 2008 NSR PM2.5
rule, as well as to provide general updates that apply to all the
NAAQS.
III. Effect of the January 4, 2013 D.C. Circuit Decision Regarding
PM2.5 Implementation Under Subpart 4
On January 4, 2013, the U.S. Court of Appeals for the District of
Columbia Circuit, in Natural Resources Defense Council v. EPA \2\
issued a decision that remanded the EPA's 2007 and 2008 rules
implementing the 1997 PM2.5 NAAQS. Relevant here, the 2008
NSR PM2.5 Rule promulgated NSR requirements for
implementation of PM2.5 in both nonattainment areas and
attainment/unclassifiable areas. The Court found that the EPA erred in
implementing the PM2.5 NAAQS in these rules solely pursuant
to the general implementation provisions of subpart 1, part D, title I
of the CAA, rather than pursuant to the additional implementation
provisions specific to particulate matter nonattainment areas in
subpart 4. The Court ordered the EPA to ``repromulgate these rules
pursuant to
[[Page 65368]]
Subpart 4 consistent with this opinion.'' Id. at 437.
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\2\ 706 F.3d 428 (D.C. Cir. 2013).
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On June 2, 2014, the EPA published a final rulemaking,
Identification of Nonattainment Classification and Deadlines for
Submission of State Implementation Plan (SIP) Provisions for the 1997
Fine Particle (PM2.5) National Ambient Air Quality Standard
(NAAQS) and 2006 PM2.5 NAAQS, that begins to address the
remand (79 FR 31566). The final rule classified all existing
PM2.5 nonattainment areas as ``Moderate'' nonattainment
areas and set a deadline of December 31, 2014, for states to submit any
SIP submissions, including major NNSR SIPs, that may be necessary to
satisfy the requirements of subpart 4, part D, title I of the CAA, with
respect to PM2.5 nonattainment areas.
In a separate rulemaking process, the EPA is evaluating the
requirements of subpart 4 as they pertain to nonattainment NSR for
PM2.5 emissions. In particular, subpart 4 includes section
189(e) of the CAA, which requires the control of major stationary
sources of PM10 precursors ``except where the Administrator
determines that such sources do not contribute significantly to
PM10 levels which exceed the standard in the area.'' Under
the Court's decision in NRDC, section 189(e) of the CAA also applies to
PM2.5.
Alaska submitted SIP revisions to two definitions in Alaska's major
NNSR program. In 18 AAC 50.040(i)(1), Alaska revised the definition of
``regulated NSR pollutant'' by adopting by reference the Federal
definition of ``regulated NSR pollutant'' at 40 CFR
51.165(a)(1)(xxxvii), which includes precursors to both ozone and
PM2.5 in nonattainment areas. With respect to
PM2.5, the adopted by reference definition of ``regulated
NSR pollutant'' identifies sulfur dioxide and nitrogen oxides as
regulated PM2.5 precursors while volatile organic compounds
(VOCs) and ammonia are not regulated PM2.5 precursors in
PM2.5 nonattainment areas in the State. In addition, in 18
AAC 50.040(i)(1), Alaska adopted by reference the Federal definition of
``significant'' at 40 CFR 51.165(a)(1)(x), which includes significant
emission rates for direct PM2.5 and for sulfur dioxide and
nitrogen oxides as PM2.5 precursors. These revisions,
although consistent with the 2008 NSR PM2.5 Rule developed
in accordance with subpart 1 of the CAA, may not contain the elements
necessary to satisfy the CAA requirements when evaluated under the
subpart 4 statutory requirements. In particular, Alaska's submission
does not include regulation of VOCs and ammonia as PM2.5
precursors, nor does it include a demonstration consistent with section
189(e) showing that major sources of those precursor pollutants would
not contribute significantly to PM2.5 levels exceeding the
standard in the area. For these reasons, the EPA cannot conclude at
this time that this part of Alaska's major NNSR submission satisfies
all of the requirements of subpart 4 as they pertain to
PM2.5 major NNSR permitting.
Although the revisions to Alaska's major NNSR rule may not contain
all of the necessary elements to satisfy the CAA requirements when
evaluated under the subpart 4 provisions, the revisions themselves
represent a strengthening of Alaska's currently-approved major NNSR SIP
which does not address PM2.5 at all. As a result of the June
2, 2014, final rule, the State will have until December 31, 2014, to
make any additional submission necessary to address the requirements of
subpart 4, including addressing the PM2.5 precursors VOCs
and ammonia. For these reasons, the EPA is proposing to approve the
major NNSR revisions at 18 AAC 50.040(i), without listing as a
deficiency at this time the absence of either the regulation or
evaluation of VOCs and ammonia as PM2.5 precursors.
IV. Alaska's Revisions to Major NNSR
Table 1 below summarizes the revisions submitted by the State
related to major NNSR and addressed in this action, including the
submittal date, the State effective date, and the title and section of
18 AAC 50 related to the major NNSR program. Where there are multiple
amendments to the same provision, the EPA limited its review to the
most recently submitted amendment to that particular provision.
Table 1--Alaska SIP Revisions to Major NNSR Addressed in This Action
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State Major NNSR-related provisions of 18 AAC 50.040 Major NNSR-related provisions of 18 AAC 50.990
Date of submittal effective date revised or amended revised or amended
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12/11/2009.................... 7/25/2008 (i), (i)(7), (i)(8), (i)(9), (i)(10)...............
11/29/2010.................... 12/9/2010 (i)................................................
12/10/2012.................... 9/14/2012 (i), (i)(1)(B).....................................
1/28/2013..................... 1/4/2013 (i)(1)(A), (i)(1)(B), (i)(1)(B)(ii)................
7/1/2014...................... 10/6/2013 (i), (i)(1)(B), (i)(2), (i)(4), (i)(5), (i)(6)..... (40).
10/24/2014.................... 11/9/2014 (i), (i)(1)(B), (i)(2), (i)(4), (i)(5), (i)(6)..... (92).
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Alaska's major NNSR program is comprised of 18 AAC 50.311
(Nonattainment Area Major Stationary Source Permits), which was
previously approved on August 14, 2007 (72 FR 45378) and has not been
revised since, and 18 AAC 50.040 (Federal Standards Adopted by
Reference), paragraph (i), relating to 40 CFR 51.165 (Permit
Requirements). Definitions for specific terms referenced by these
provisions are found in 18 AAC 50.990 (Definitions). To ensure that its
regulations are consistent with the EPA requirements, Alaska generally
updates annually its adoption by reference citations to the Federal
major NNSR regulations at 40 CFR 51.165 (Permit Requirements) in 18 AAC
50.040(i).\3\ Because of this practice, the revisions submitted by the
State and listed in Table 1 are primarily updates to make the State's
regulations consistent with updates to the Federal regulations. Other
revisions are discussed below.
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\3\ In some instances 18 AAC 50.040(i) does not directly adopt
by reference the Federal provisions, but instead references
provisions in AS 46.14.990 or 18 AAC 50.990, which, in turn,
reference the Federal provisions in 40 CFR 51.165.
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In the State's December 11, 2009, submittal, exceptions were added
to the major NNSR regulations at 18 AAC 50.040(i)(10), relating to the
adoption by reference of ``Actuals PALs,'' in 40 CFR 51.165(f). Under
18 AAC 50.040(i)(10)(A), mass balance calculations, as authorized under
40 CFR 52.165(f)(12)(ii)(A), are also acceptable for activities
emitting sulfur dioxide from the combustion of fuel to the extent
otherwise available for activities using coatings or solvents. This
includes the requirement that the emission unit is assumed to emit all
of the sulfur in the fuel as sulfur dioxide. Under 18 AAC
50.040(i)(10)(B), the monitoring requirements of 40 CFR
52.21(f)(12)(iii) are applied to owners or operators using mass balance
calculations to monitor plantwide
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applicability limitation (PAL) pollutant emissions from activities
emitting sulfur dioxide from the combustion of fuel. These provisions
are approvable because they are an appropriate method of determining
compliance with a PAL for the narrow activity added by ADEC's
regulations.
In the State's July 1, 2014 submittal, Alaska repealed provisions
in 18 AAC 50.040(i), paragraphs (7), (8) and (9), that related to clean
units and pollution control projects. The comparable Federal provisions
were initially vacated by a court and then repealed by the EPA. Repeal
of these provisions as a matter of state law does not affect the SIP
because the EPA had not previously approved these provisions into the
SIP and because they are no longer elements of the Federal major NNSR
program.
Alaska submitted revisions to two definitions in 18 AAC 50.990
related to major NNSR. On October 24, 2014, the State revised 18 AAC
50.040(i)(1) to adopt by reference the Federal definition of
``regulated NSR pollutant'' at 40 CFR 51.165(a)(1)(xxxvii) and also
repealed the definition ``regulated NSR pollutant'' in 18 AAC
50.990(92) because the State has now adopted the Federal definition in
18 AAC 50.040(i). With these revisions, the State's definition of
``regulated NSR pollutant'' at 18 AAC 50.040(i)(1) is consistent with
the current Federal definition of ``regulated NSR pollutant'' for major
NNSR and is approvable.
On July 1, 2014, Alaska revised its major NNSR regulations at 18
AAC 50.040(i)(1)(B)(2) to reference the definition of ``fugitive
emissions'' in 18 AAC 50.990(40). In turn, 18 AAC 50.990(40) was
revised to adopt by reference the Federal definition of ``fugitive
emissions'' at 40 CFR 51.166(b)(20).\4\ The definition of ``fugitive
emissions'' referenced in 18 AAC 50.990(40) is consistent with the
Federal definition of ``fugitive emissions'' for major NNSR and is
approvable.
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\4\ The definition of ``fugitive emissions'' in 40 CFR
51.166(b)(20) is identical to the definition of ``fugitive
emissions'' in 51.165(a)(1)(ix).
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We note that in the State's October 24, 2014 submittal, technical
corrections were made to the revisions in 18 AAC 50.040(i)(2), (4), (5)
and (6) that were submitted on July 1, 2014. The effect of these
corrections is that the State has submitted its repeal of 18 AAC
50.040(i)(4) and no changes were made to the adoption by reference of
Federal provisions at 18 AAC 50.040(i)(2), (5) and (6). The repealed
provision at 18 AAC 50.040(i)(4) adopted by reference an exemption for
fugitive emissions in 40 CFR 51.165(a)(4) that duplicates an exemption
contained in the State's definition of ``major stationary source'' and
its repeal is therefore approvable.
In summary, revisions to Alaska's major NNSR regulations in 18 AAC
50.040(i) are approvable because the submitted revisions bring the
State's major NNSR program up to date with current Federal requirements
and, as explained above, represent a strengthening of Alaska's
currently-approved major NNSR program.
V. Proposed Action
Pursuant to section 110 of the CAA and consistent with the
discussion above, the EPA proposes to approve the Alaska SIP revisions
submitted on December 11, 2009, November 29, 2010, December 10, 2012,
January 28, 2013, July 1, 2014, and October 24, 2014 that update the
adoption by reference of the Federal major NNSR program and revise the
definition of ``regulated NSR pollutant.'' The EPA has made the
preliminary determination that these SIP revisions are approvable
because they are consistent with the CAA and the current EPA
requirements regarding major NNSR. The EPA intends to address the
remaining portions of the SIP submittals that are not related to major
NNSR, and have not yet been addressed, in one or more separate actions.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves the state's law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by the state's law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because it does not involve technical standards; and
Does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in
any other area where the EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 27, 2014.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2014-26181 Filed 11-3-14; 8:45 am]
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