E8-24279. Approval and Promulgation of Implementation Plans; Alaska; Interstate Transport of Pollution

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving the actions of the Alaska Department of Environmental Conservation (ADEC) to address the provisions of Clean Air Act section 110(a)(2)(D)(i) for the 8-hour ozone and PM2.5 National Ambient Air Quality Standards (NAAQS). These provisions require each state to submit a State Implementation Plan (SIP) revision that prohibits emissions that adversely affect another state's air quality through interstate transport. ADEC has adequately addressed the four distinct elements related to the impact of interstate transport of air pollutants for the state of Alaska. These include prohibiting emissions that contribute significantly to nonattainment of the NAAQS in another state, interfere with maintenance of the NAAQS by another state, interfere with plans in another state to prevent significant deterioration of air quality, or interfere with efforts of another state to protect visibility.

DATES:

This direct final rule will be effective December 15, 2008, without further notice, unless EPA receives adverse comment by November 14, 2008. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R10-OAR-2008-0166, by one of the following methods:

A. http://www.regulations.gov. Follow the on-line instructions for submitting comments.

B. E-mail: [e-mail].

C. Mail: Donna Deneen, Office of Air, Waste and Toxics, AWT-107, EPA, Region 10, 1200 Sixth Ave., Suite 900, Seattle, Washington 98101.

D. Hand Delivery or Courier: EPA, Region 10 Mail Room, 9th Floor, 1200 Sixth Ave., Seattle, Washington 98101. Attention: Donna Deneen, Office of Air, Waste and Toxics, AWT-107. Such deliveries are only accepted during normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R10-OAR-2008-0166. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail information that you consider to be CBI or otherwise protected. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Office of Air, Waste and Toxics, EPA Region 10, 1200 Sixth Avenue, Seattle, Washington 98101.

FOR FURTHER INFORMATION CONTACT:

Donna Deneen at [phone], e-mail address: [e-mail], fax number: [phone], or the above EPA Region 10 address.

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. Information is organized as follows:

Table of Contents:

I. Background of Submittal

II. How Alaska's Submittal Addresses the Provisions of Clean Air Act Section 110(a)(2)(D)(i)

III. Statutory and Executive Order Reviews

I. Background of Submittal

EPA is approving Alaska's SIP revisions to address the requirements of Clean Air Act (CAA) section 110(a)(2)(D)(i). This CAA section requires each state to submit a SIP that prohibits emissions that could adversely affect another state, addressing four key elements. The SIP must prevent sources in the state from emitting pollutants in amounts which will: (1) Contribute significantly to nonattainment of the NAAQS in another state, (2) interfere with maintenance of the NAAQS by another state, (3) interfere with plans in another state to prevent significant deterioration of air quality, or (4) interfere with efforts of another state to protect visibility.

EPA issued guidance on August 15, 2006, entitled “Guidance for State Implementation Plan (SIP) Submissions to Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards,” relating to SIP submissions to meet the requirements of CAA section 110(a)(2)(D)(i). As discussed below, Alaska's analyses of its SIP with respect to the statutory requirements of CAA section 110(a)(2)(D)(i) are consistent with the guidance. The discussion below covers how Alaska has addressed the four key requirements of CAA section 110(a)(2)(D)(i).

II. How Alaska's Submittal Addresses the Provisions of Clean Air Act Section 110(a)(2)(D)(i)

Alaska addressed the first two elements of CAA section 110(a)(2)(D)(i) by providing information supporting the conclusion that emissions from Alaska do not significantly contribute to nonattainment or interfere with maintenance of the 8-hour ozone and PM2.5 NAAQS in another state. Importantly, Alaska's southernmost border is separated from the border of the lower 48 states by over 500 air miles which means any 8-hour ozone or PM2.5 nonattainment or maintenance area in another state is more than 500 miles from the Alaska border. Alaska also points to aggregate manmade PM22.5 and ozone levels that are minimal relative to national levels. A statewide emission inventory shows that facilities in Alaska make up only 0.1 percent of the total PM2.5 emissions in the United States. Similarly, precursor emissions to PM2.5 (e.g., sulfur dioxide and nitrogen oxides) and precursor emissions to ozone (e.g., volatile organic compounds and nitrogen oxides) from facilities in Alaska make up only from 0.0 to 0.2 percent of United States' emissions for those pollutants. The mountainous terrain of Alaska, with summits along the state borders that reach more than 5000 feet in height, further provides a natural topographical barrier for emissions of Alaska sources. Based on this information, it is reasonable to conclude that emissions from Alaska do not significantly contribute to nonattainment or interfere with maintenance of the 8-hour ozone or PM2.5 NAAQS in another state.

The third element Alaska addressed is prevention of significant deterioration (PSD). For 8-hour ozone, the state has met the obligation by confirming that it has a fully approved PSD/NSR program. Alaska's PSD/NSR program was approved on February 16, 1995 (60 FR 8943) and more recently on August 14, 2007. 72 FR 45378. The approved program implements the 8-hour ozone standard and relevant requirements of the Phase II ozone implementation rule as required in 69 FR 23951 (April 30, 2004) and 70 FR 71612 (November 29, 2005). For PM2.5, Alaska's PSD program is being implemented in accordance with EPA's interim guidance calling for the use of PM10 as a surrogate for PM2.5 for the purposes of PSD review.

The fourth element Alaska addressed is protection of visibility. EPA's regional haze regulations, 64 FR 35714 (July 1, 1999), require states to submit regional haze SIPS to EPA by December 17, 2007. Since states generally have not submitted their regional haze SIPs, Alaska indicates that it is not possible for Alaska to assess its compatibility or interference with control measures in another state's Regional Haze (visibility) SIP and is working with the Western Regional Air Partnership to prepare a SIP to address EPA's regional haze regulations.^[a]

Based on this and other information provided by Alaska in its SIP submittal, EPA believes the state has sufficiently demonstrated that emissions from Alaska do not significantly contribute to nonattainment or interfere with maintenance of the NAAQS in another state, or interfere with measures required to be included in the SIP for any other State to prevent significant deterioration of air quality or to protect visibility. Additional supporting information can be found in the docket.

III. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 15, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: October 1, 2008.

Elin D. Miller,

Regional Administrator, Region 10.

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart C—Alaska

2. Section 52.97 is added to read as follows:

§ 52.70

Interstate Transport for the 1997 8-hour ozone and PM2.5 NAAQS.

On February 7, 2008, the Alaska Department of Environmental Conservation submitted a SIP revision to meet the requirements of Clean Air Act section 110(a)(2)(D)(i). EPA has approved this submittal.

Footnotes

a.  ADEC combined its CAA section 110(a)(2)(d)(i) SIP revision with revisions to ADEC's regulations at 18 AAC 50 relating to Best Available Retrofit Technology for purposes of public notice and hearing. In this action, EPA is approving ADEC's submittal as it relates to CAA sectin 110(a)(2)(d)(i) and is taking no actions on the revisions to 18 AAC 50 relating to Best Available Retrofit Technology.