Rule2023-26521
Air Plan Partial Approval and Partial Disapproval; AK, Fairbanks North Star Borough; 2006 24-Hour PM2.5 Serious Area and 189(d) Plan
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 5, 2023
Effective
January 4, 2024
Issuing agencies
Environmental Protection Agency
Abstract
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 (PM<INF>2.5</INF>) national ambient air quality standard (NAAQS) in the Fairbanks North Star Borough PM<INF>2.5</INF> nonattainment area (Fairbanks PM<INF>2.5</INF> Nonattainment Area). Alaska made these submissions on December 13, 2019, and December 15, 2020.
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<title>Federal Register, Volume 88 Issue 232 (Tuesday, December 5, 2023)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-26521]
[[Page 84625]]
Vol. 88
Tuesday,
No. 232
December 5, 2023
Part V
Environmental Protection Agency
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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 PM<INF>2.5</INF> Serious Area and
189(d) Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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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 (PM<INF>2.5</INF>) national ambient air quality
standard (NAAQS) in the Fairbanks North Star Borough PM<INF>2.5</INF>
nonattainment area (Fairbanks PM<INF>2.5</INF> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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,
<a href="/cdn-cgi/l/email-protection#274d424953404249094a4653534f42506742574609404851"><span class="__cf_email__" data-cfemail="076d626973606269296a6673736f62704762776629606871">[email protected]</span></a>.
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 PM<INF>2.5</INF>
Nonattainment Area
D. Clean Air Act Requirements for PM<INF>2.5</INF> Serious Area
Plans and Serious PM<INF>2.5</INF> 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 PM<INF>2.5</INF>
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 PM<INF>2.5</INF>
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\
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\1\ 40 CFR 51.1003(c).
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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 (SO<INF>2</INF>) best available control technology (BACT)
findings submitted as part of the Fairbanks Serious Plan.\3\
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\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.
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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 PM<INF>2.5</INF> precursor
demonstrations for nitrogen oxide (NO<INF>X</INF>) and volatile organic
compound (VOC) emissions; the control strategy for the solid fuel-fired
heating device source category and ammonia (NH<INF>3</INF>) 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).
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\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.
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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
PM<INF>2.5</INF> 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.
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\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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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\
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\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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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 PM<INF>2.5</INF> 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 SO<INF>2</INF> BACT requirements for major
stationary sources though either identifying, adopting, and
implementing BACT for the control of SO<INF>2</INF> emissions from
these sources or a major stationary source SO<INF>2</INF> precursor
demonstration that meets statutory and regulatory requirements and
clearly demonstrates these sources do not contribute significantly to
PM<INF>2.5</INF> levels that exceed the NAAQS in the Fairbanks
PM<INF>2.5</INF> 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 SO<INF>2</INF>
precursor demonstration for major
[[Page 84628]]
stationary sources. Many of the commenters presumed that the outcome of
the precursor demonstration would show that SO<INF>2</INF> emissions
from major stationary sources is not a significant contributor to
PM<INF>2.5</INF> formation in the Fairbanks 2006 PM<INF>2.5</INF>
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 PM<INF>2.5</INF> 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 SO<INF>2</INF> 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 SO<INF>2</INF>
precursor demonstration in this SIP submission, if it provides a valid
basis to establish that SO<INF>2</INF> emissions from either all
sources or major stationary sources do not significantly contribute to
PM<INF>2.5</INF> formation.
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\11\ CAA section 110(k)-(l) and 179. 40 CFR part 51, subpart F.
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As discussed further in the following sections of this preamble,
the EPA will review any future SO<INF>2</INF> 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
<a href="https://www.epa.gov/ejscreen/what-ejscreen">https://www.epa.gov/ejscreen/what-ejscreen</a>.
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The EPA noted in the Proposal that the Fairbanks PM<INF>2.5</INF>
Nonattainment Area has some of the highest PM<INF>2.5</INF>
concentrations in the country and has been designated nonattainment for
the 2006 24-hour PM<INF>2.5</INF> 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 PM<INF>2.5</INF>
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 PM<INF>2.5</INF> 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:
<a href="https://bhw.hrsa.gov/workforce-shortage-areas/shortage-designation#mups">https://bhw.hrsa.gov/workforce-shortage-areas/shortage-designation#mups</a>.
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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 PM<INF>2.5</INF> 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
PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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.
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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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF>
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 PM<INF>2.5</INF>
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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF>
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) PM<INF>2.5</INF>
monitoring station to characterize PM<INF>2.5</INF> 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 PM<INF>2.5</INF>
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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF>
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 PM<INF>2.5</INF>
monitoring network for the Fairbanks 2006 PM<INF>2.5</INF>
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: <a href="https://dec.alaska.gov/air/air-monitoring/monitoring-plans">https://dec.alaska.gov/air/air-monitoring/monitoring-plans</a>.
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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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF>. 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 PM<INF>2.5</INF> monitoring network for
the Fairbanks PM<INF>2.5</INF> 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
SO<INF>2</INF> at the Hurst Road site in North Pole, and speciated
PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 <a href="https://www.epa.gov/system/files/documents/2023-06/List_of_FRM_FEM_%20June%202023_Final.pdf">https://www.epa.gov/system/files/documents/2023-06/List_of_FRM_FEM_%20June%202023_Final.pdf</a>.
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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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF>
nonattainment area that failed to attain the PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> SIP Requirements Rule at 40 CFR
51.1005(c) implements this statutory prescription, stating: ``If a
Serious area fails to attain a particular PM<INF>2.5</INF> 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.''
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On September 2, 2020, the EPA determined that the Fairbanks
PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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
PM<INF>2.5</INF> and PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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
PM<INF>2.5</INF> Nonattainment Area.\40\
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\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.
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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
PM<INF>2.5</INF> 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.
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\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.'').
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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 PM<INF>2.5</INF> 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.
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\44\ 85 FR 54509, September 2, 2020.
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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 SO<INF>2</INF> BACT
determinations and analysis for major stationary sources in the
Fairbanks PM<INF>2.5</INF> 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.
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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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> concentrations in the
Fairbanks PM<INF>2.5</INF> Nonattainment Area, that trend and
associated emissions reductions need to be assessed and included in a
robust modeling analysis that demonstrates compliance with the
PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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
PM<INF>2.5</INF> 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 NO<INF>X</INF> and VOC
emissions. Alaska did not submit a precursor determination for existing
sources of SO<INF>2</INF> and NH<INF>3</INF> emissions.\46\ Moreover,
Alaska did not submit a nonattainment new source review (NNSR)
precursor demonstration for any PM<INF>2.5</INF> precursor. Alaska
regulates all PM<INF>2.5</INF> 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
PM<INF>2.5</INF> SIP Requirements Rule and the recommendations in the
May 30, 2019, PM<INF>2.5</INF> Precursor Demonstration Guidance.\47\
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\46\ According to Alaska, there is a negligible amount of
NH<INF>3</INF> 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 (PM<INF>2.5</INF>) Precursor
Demonstration Guidance, May 30, 2019.
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The EPA proposed to approve the State's demonstration that
NO<INF>X</INF> and VOC emissions do not contribute significantly to
ambient PM<INF>2.5</INF> levels that exceed the 2006 24-hour
PM<INF>2.5</INF> NAAQS in the Fairbanks PM<INF>2.5</INF> 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 NO<INF>X</INF> 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 NO<INF>X</INF> and VOC emissions.
The EPA noted that the concentration-based modeling analysis of VOC
emissions demonstrates that anthropogenic VOCs have impacts on
PM<INF>2.5</INF> concentrations in the Fairbanks PM<INF>2.5</INF>
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 NO<INF>X</INF> emitted from all
sources is an insignificant contributor to local PM<INF>2.5</INF>
concentrations.
ii. Final Rule
The EPA is finalizing approval of Alaska's PM<INF>2.5</INF>
precursor demonstrations for NO<INF>X</INF> and VOC emissions included
in the Fairbanks Serious and 189(d) Plans. The EPA reiterates that
Alaska did not submit a precursor determination for SO<INF>2</INF> and
NH<INF>3</INF> 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 NO<INF>X</INF>,
SO<INF>2</INF>, VOCs, and NH<INF>3</INF> as precursors to
PM<INF>2.5</INF> 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 NO<INF>X</INF> are emitted in Fairbanks. These
compounds are ``precursors'' that undergo chemical reactions to form
PM<INF>2.5</INF>. In September 2021, the EPA approved Alaska's 2019
precursor demonstrations for VOCs and NO<INF>X</INF>, finding that
Alaska had sufficiently demonstrated that VOCs and NO<INF>X</INF> do
not significantly contribute to the PM<INF>2.5</INF> 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 NO<INF>X</INF> model run, and Earthjustice noted that
the EPA proposed to find that the weight of evidence suggested that
NO<INF>X</INF> emitted from all sources is an insignificant contributor
to local PM<INF>2.5</INF> concentrations.
The commenters disagreed with the EPA's approval of Alaska's new
NO<INF>X</INF> 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 NO<INF>X</INF> 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 NO<INF>X</INF> emissions from
anthropogenic sources in the nonattainment area have been removed.
Based on this modeling, the State demonstrated that ``the maximum 24-
hour average PM<INF>2.5</INF> concentrations due to anthropogenic
NO<INF>X</INF> 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 NO<INF>X</INF>.
Response: While the State only completed one new model run (a run
with a 50% reduction of NO<INF>X</INF> emissions from anthropogenic
sources) for the precursor demonstration in the Fairbanks 189(d) Plan,
the EPA also considered the NO<INF>X</INF> precursor model runs from
the Fairbanks Serious Plan when evaluating the NO<INF>X</INF> 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 PM<INF>2.5</INF> Nonattainment Area or to the modeling
platform between the Fairbanks Serious Plan and the Fairbanks 189(d)
Plan. When evaluating the NO<INF>X</INF> precursor demonstration
submitted by the State, the EPA reviewed several model runs,
[[Page 84636]]
focusing on both the average and maximum modeled PM<INF>2.5</INF>
concentrations.
First, a major source precursor analysis where a baseline model run
was compared to a control model run with a 100% reduction of
NO<INF>X</INF> 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
NO<INF>X</INF> 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
NO<INF>X</INF> 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
NO<INF>X</INF> 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
PM<INF>2.5</INF> at multiple Northwest U.S. sites: Assessing
regional winter wood smoke impacts from residential wood combustion.
Atmospheric Environment, 142, 210-219. Available at: <a href="https://doi.org/10.1016/j.atmosenv.2016.07.048">https://doi.org/10.1016/j.atmosenv.2016.07.048</a>. Ward (2013). The Fairbanks,
Alaska PM<INF>2.5</INF> Source Apportionment Research Study Winters
2005/2006-2012/2013, and Summer 2012. University of Montana-Missoula
Center for Environmental Health Sciences. Available at: <a href="https://dec.alaska.gov/air/anpms/communities/fbks-pm2-5-science/">https://dec.alaska.gov/air/anpms/communities/fbks-pm2-5-science/</a>.
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Based on all of these data sources, the EPA agrees with the State
that NO<INF>X</INF> is not a significant contributor to
PM<INF>2.5</INF> 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 NH<INF>3</INF> 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 PM<INF>2.5</INF> emissions also
reduce NH<INF>3</INF> 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
NH<INF>3</INF> discussed in section II.E.2 of this preamble. Thus, the
EPA proposed to determine that no additional controls of NH<INF>3</INF>
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
NH<INF>3</INF> 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 PM<INF>2.5</INF>, SO<INF>2</INF>, and NH<INF>3</INF> 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 PM<INF>2.5</INF> and SO<INF>2</INF> emissions. We
also proposed to approve Alaska's analysis that found no available
controls that specifically reduce NH<INF>3</INF>.\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 NH<INF>3</INF> 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 NH<INF>3</INF> 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
PM<INF>2.5</INF> and SO<INF>2</INF> 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 PM<INF>2.5</INF> and SO<INF>2</INF>
emissions.
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\52\ Missoula City-County Air Pollution Control Program, Rule
9.203(1)(a), available at: <a href="https://www.missoulacounty.us/government/health/health-department/administration/regulations-ordinances/air-pollution-control-program">https://www.missoulacounty.us/government/health/health-department/administration/regulations-ordinances/air-pollution-control-program</a>.
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Alaska's regulation 18 AAC 50.075(f), applicable to the Fairbanks
PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> NAAQS
in the Fairbanks PM<INF>2.5</INF> 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 PM<INF>2.5</INF> and SO<INF>2</INF> 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
PM<INF>2.5</INF> and SO<INF>2</INF> emissions for the solid fuel
burning source category. These include Alaska State regulations 18 AAC
50.076 (d-e), (g), (j-l).
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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 PM<INF>2.5</INF> 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
PM<INF>2.5</INF> and SO<INF>2</INF> 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 NH<INF>3</INF>-
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).
---------------------------------------------------------------------------
The EPA's position is that these, as well as other, measures are
necessary to control direct PM<INF>2.5</INF> emissions and
SO<INF>2</INF> 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
PM<INF>2.5</INF> 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.
---------------------------------------------------------------------------
\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
PM<INF>2.5</INF>. 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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF>
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.
---------------------------------------------------------------------------
\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 <a href="https://dec.alaska.gov/air/anpms/communities/fbks-pm2-5-curtail-alert/">https://dec.alaska.gov/air/anpms/communities/fbks-pm2-5-curtail-alert/</a>. 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 PM<INF>2.5</INF>
Nonattainment Area, Alaska Department of Environmental Conservation
and Fairbanks North Star Borough, available at: <a href="https://dec.alaska.gov/air/anpms/communities/progress-annual-reports/">https://dec.alaska.gov/air/anpms/communities/progress-annual-reports/</a>.
---------------------------------------------------------------------------
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 PM<INF>2.5</INF>
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 PM<INF>2.5</INF>
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
\74\ For information on the EPA's Targeted Airshed Program, see:
<a href="https://www.epa.gov/air-quality-implementation-plans/targeted-airshed-grants-program">https://www.epa.gov/air-quality-implementation-plans/targeted-airshed-grants-program</a>.
\75\ Voluntary Solid Fuel Burning Appliance Change Out Program
Application, available at <a href="https://www.fnsb.gov/DocumentCenter/View/811/WoodPelletCoal-Appliance-Change-Out-Program-Application-PDF">https://www.fnsb.gov/DocumentCenter/View/811/WoodPelletCoal-Appliance-Change-Out-Program-Application-PDF</a>.
---------------------------------------------------------------------------
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
PM<INF>2.5</INF> 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 SO<INF>2</INF> 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 SO<INF>2</INF>
removed (SO<INF>2</INF> 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 PM<INF>2.5</INF>
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 PM<INF>2.5</INF> 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 SO<INF>2</INF> 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 PM<INF>2.5</INF> and
SO<INF>2</INF> emissions. However, we proposed to approve Alaska's
analysis that found no NH<INF>3</INF>-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
SO<INF>2</INF> 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 PM<INF>2.5</INF>
Serious Area and 189(d) Plan EPA-R10-OAR-2022-0115.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\77\ State Air Quality Control Plan, Vol. III, Appendix III.7.7-
5396, adopted November 18, 2020.
---------------------------------------------------------------------------
There are already sources in the Fairbanks PM<INF>2.5</INF>
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
SO<INF>2</INF> ton removed under low baseline oil market prices to
$73,816 per SO<INF>2</INF> 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\
---------------------------------------------------------------------------
\78\ See the EPA FR Technical Support Document--ULSD residential
and commercial fuel oil combustion, included in the docket for this
action.
---------------------------------------------------------------------------
Overall, the EPA's updated cost effectiveness analysis leads to an
overall cost ranging from $13,046 and $22,893 per SO<INF>2</INF> 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 PM<INF>2.5</INF> removed
(adjusted to 2019 dollars). Thus, Alaska ultimately determined that
BACM is economically infeasible for this source.
---------------------------------------------------------------------------
\79\ 18 AAC 50.078(c).
---------------------------------------------------------------------------
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
<a href="https://www1.nyc.gov/assets/dep/downloads/pdf/air/approved-under-fired-technology.pdf">https://www1.nyc.gov/assets/dep/downloads/pdf/air/approved-under-fired-technology.pdf</a>; 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: <a href="https://doi.org/10.1080/00022470.1977.10470466">https://doi.org/10.1080/00022470.1977.10470466</a>.
\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 PM<INF>2.5</INF> 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
PM<INF>2.5</INF> 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
PM<INF>2.5</INF> 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 PM<INF>2.5</INF> SIP Requirements Rule, BACM and BACT are
required for all sources of direct PM<INF>2.5</INF> and
PM<INF>2.5</INF> precursors. In the PM<INF>2.5</INF> SIP Requirements
Rule, the EPA expressly determined that given the nature of
PM<INF>2.5</INF> that typically results from the combined emissions of
many sources of direct PM<INF>2.5</INF> and PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF>
Nonattainment Area: Hurst Road, A Street, and NCore. The Hurst Road
monitor, located in North Pole, has historically measured the highest
concentrations of PM<INF>2.5</INF>. The EPA acknowledges that measured
concentrations of PM<INF>2.5</INF> 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 PM<INF>2.5</INF>
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 PM<INF>2.5</INF> monitoring
station to characterize expected maximum concentrations in the
Fairbanks portion of the Fairbanks PM<INF>2.5</INF> 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 PM<INF>2.5</INF> nonattainment area has attained the
PM<INF>2.5</INF> 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
PM<INF>2.5</INF> Nonattainment Area emit a very small amount of direct
PM<INF>2.5</INF>--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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> Standards, California Air Resources
Board, Staff Report, December 21, 2018; Revision to the California
State Implementation Plan for PM<INF>2.5</INF> 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.
---------------------------------------------------------------------------
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 PM<INF>2.5</INF> 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
PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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.
---------------------------------------------------------------------------
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 PM<INF>2.5</INF>
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 PM<INF>2.5</INF> 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
PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF>
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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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
PM<INF>2.5</INF> 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 SO<INF>2</INF> emissions than
PM<INF>2.5</INF> emissions, and thus potential for greater reductions
in SO<INF>2</INF>.\89\ Alaska estimated SO<INF>2</INF> emissions of
0.0185 tons per day from waste oil (compared to 0.0026 tons per day for
PM<INF>2.5</INF>). Alaska estimates 135,150 gallons per year of waste
oil is produced Fairbanks. By applying the SO<INF>2</INF> emission
factor (instead of PM<INF>2.5</INF>) into the cost calculations for
each of the two options, the EPA estimates a cost effectiveness value
of $102,838 per SO<INF>2</INF> ton reduced for Option 1 and $92,107 per
SO<INF>2</INF> ton reduced for Option 2. While considering
SO<INF>2</INF> 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
PM<INF>2.5</INF> 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 PM<INF>2.5</INF> Nonattainment Area and, thus, improving air
quality. This is particularly important given the age of many homes in
the Fairbanks PM<INF>2.5</INF> 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 PM<INF>2.5</INF>
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 PM<INF>2.5</INF> Nonattainment Area.
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\92\ See Alaska Community Development Corporation,
Weatherization Assistance Program, <a href="http://www.alaskacdc.org/weatherization-assistance-program.html">http://www.alaskacdc.org/weatherization-assistance-program.html</a>.
\93\ See Cold Climate House Research Center, Retrofits,
available at <a href="http://cchrc.org/retrofits/">http://cchrc.org/retrofits/</a>.
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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
PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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
PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 <a href="https://www.epa.gov/sites/default/files/2016-02/documents/emerging_vol_measures.pdf">https://www.epa.gov/sites/default/files/2016-02/documents/emerging_vol_measures.pdf</a>.
\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 <a href="https://www.energy.gov/energysaver/insulation">https://www.energy.gov/energysaver/insulation</a>.
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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 <a href="https://www.epa.gov/statelocalenergy/local-residential-energy-efficiency">https://www.epa.gov/statelocalenergy/local-residential-energy-efficiency</a>.
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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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> NAAQS
in the Fairbanks PM<INF>2.5</INF> 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 NO<INF>X</INF> and VOC emissions
and the EPA proposed to approve Alaska's precursor demonstration that
shows NOx and VOCs are not significant precursors to PM<INF>2.5</INF>
formation in the Fairbanks PM<INF>2.5</INF> Nonattainment Area.
The EPA also proposed to approve Alaska's determination that no
NH<INF>3</INF>-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 NH<INF>3</INF>-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 NH<INF>3</INF>-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, PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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
PM<INF>2.5</INF> 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 PM<INF>2.5</INF>
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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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
PM<INF>2.5</INF> 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
[…truncated; see source link]Indexed from Federal Register on December 5, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.