# Air Plan Partial Approval and Partial Disapproval; AK, Fairbanks North Star Borough; 2006 24-Hour PM2.5 Serious Area and 189(d) Plan

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-26521

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** December 5, 2023
- **Citation:** 88 FR 84626

## Text

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
2.5
Serious Area and 189(d) Plan

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving in part and disapproving in part the State implementation plan (SIP) submissions, submitted by the State of Alaska (Alaska or the State) to address Clean Air Act (CAA or Act) requirements for the 2006 24-hour fine particulate matter (PM
2.5
) national ambient air quality standard (NAAQS) in the Fairbanks North Star Borough PM
2.5
nonattainment area (Fairbanks PM
2.5
Nonattainment Area). Alaska made these submissions on December 13, 2019, and December 15, 2020.

DATES:

This final rule is effective on January 4, 2024.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2022-0115. All documents in the docket are listed on the
https://www.regulations.gov
website. Although listed in the index, some information is not publicly available,
e.g.,
CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through
https://www.regulations.gov,
or please contact the person identified in the
FOR FURTHER INFORMATION CONTACT
section for additional availability information.

FOR FURTHER INFORMATION CONTACT:

Matthew Jentgen, EPA Region 10, 1200 Sixth Avenue—Suite 155, Seattle, WA, 98101, (206) 553-0340,
jentgen.matthew@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we,” “us,” or “our” is used, it is intended to refer to EPA.

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
2.5
Nonattainment Area

D. Clean Air Act Requirements for PM
2.5
Serious Area Plans and Serious PM
2.5
Areas that Fail to Attain

E. Review of the Fairbanks Serious Plan and Fairbanks 189(d) Plan

1. Emission Inventories

2. Pollutants Addressed

3. Control Strategy

4. Attainment Demonstration and Modeling

5. Reasonable Further Progress

6. Quantitative Milestones

7. Contingency Measures

8. Motor Vehicle Emissions Budgets for Transportation Conformity

9. Nonattainment New Source Review Requirements

10. Additional Comments

III. Final Action

A. Final Approval

B. Final Disapproval

IV. Consequences of a Disapproval

A. The Act's Provisions for Mandatory Sanctions

B. Federal Implementation Plan Provisions That Apply if a State Fails to Submit an Approvable Plan

C. Ramifications Regarding Transportation Conformity

V. Incorporation by Reference

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132, Federalism

F. Executive Order 13175, Coordination With Indian Tribal Governments

G. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks

H. Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution, or Use

I. National Technology Transfer and Advancement Act

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Population

K. Submission to Congress and the Comptroller General

L. Petitions for Judicial Review

I. Background

For a complete regulatory history of the Fairbanks PM
2.5
Nonattainment Area, see the EPA's proposal, published on January 10, 2023 (88 FR 1454) (Proposal). This action finalizes the EPA's specific assessment of the State of Alaska's SIP submissions to meet nonattainment plan requirements for the Fairbanks PM
2.5
Nonattainment Area, as discussed in the Proposal.

In summary, Alaska submitted a plan to address the Serious area plan requirements on December 13, 2019 (Fairbanks Serious Plan). On September 2, 2020, the EPA determined that the area failed to attain the NAAQS by the outermost statutory Serious area attainment date of December 31, 2019, and denied the State's Serious area attainment date extension request under CAA section 188(e) (85 FR 54509). As a result, Alaska was required to submit a new SIP submission to meet both the Serious area attainment plan requirements and the additional CAA requirements set forth in CAA section 189(d) by December 31, 2020.
1

1
40 CFR 51.1003(c).

Prior to the EPA taking action to approve or disapprove the Fairbanks Serious Plan, Alaska withdrew and replaced several chapters of the Fairbanks Serious Plan with the Fairbanks 189(d) Plan submission, submitted on December 15, 2020 (Fairbanks 189(d) Plan).
2

Thus, the State intended to address the Serious area plan requirements with a combination of unwithdrawn portions of the Fairbanks Serious Plan and revised elements submitted as part of the Fairbanks 189(d) Plan. In this final action, the EPA is not acting on the withdrawn elements of the prior Fairbanks Serious Plan, but only acting on those elements that remain as revised by Alaska in the Fairbanks 189(d) Plan. Additionally, on September 25, 2023, Alaska withdrew the State's sulfur dioxide (SO
2
) best available control technology (BACT) findings submitted as part of the Fairbanks Serious Plan.
3

2
See SIP submission cover letter, submitted by Alaska Department of Environmental Conservation (ADEC) Commissioner Jason Brune to EPA Regional Administrator, Chris Hladick, on December 15, 2020.

3
“Fairbanks SIP submissions for the Serious area and 189(d) plans” Letter from Emma Pokon, Acting Commissioner, Alaska Department of Environmental Conservation, to Casey Sixkiller, Regional Administrator, EPA Region 10, September 25, 2023. Included in the docket for this action.

In the Proposal, the EPA proposed to approve the following components of the Fairbanks Serious Plan and Fairbanks 189(d) Plan: the base year emissions inventory; the State's PM
2.5
precursor demonstrations for nitrogen oxide (NO
X
) and volatile organic compound (VOC) emissions; the control strategy for the solid fuel-fired heating device source category and ammonia (NH
3
) BACM and BACT findings, as applicable; specific regulations under 18 AAC 50.075 through 077 and the Fairbanks Emergency Episode Plan

4

(except for the contingency measure provision).

4
State Air Quality Control Plan, Vol. II, Chapter III.D.7.12. This portion of Alaska's SIP is distinct from Alaska's emergency powers under Alaska Statutes 46.03.820 and 18 AAC 50.245-50.246 that authorize ADEC to declare an air alert, air warning, or air advisory to notify the public and prescribe and publicize curtailment action. In prior actions, the EPA has determined that these authorities are consistent with CAA section 110(a)(2)(G) and 40 CFR 51.150 through 51.153. See 83 FR 60769, November 27, 2018, at p. 60772.

The EPA proposed disapproval of the following elements of the Fairbanks Serious Plan and the Fairbanks 189(d) Plan as not meeting applicable requirements for Serious area plan requirements and CAA section 189(d) plan requirements: attainment projected emissions inventory; best available control measure (BACM) requirements for residential and commercial fuel combustion, wood sellers; coal-fired heating devices, coffee roasters, charbroilers, used oil burners, weatherization and energy efficiency measures, and mobile source emissions. The EPA proposed disapproval of most of the control strategy BACT requirements for certain large stationary sources in the Fairbanks PM
2.5
Nonattainment Area. Additionally, the EPA proposed disapproval of the Fairbanks Serious Plan and Fairbanks 189(d) Plan for not meeting the remaining nonattainment planning elements: the CAA section 189(d) requirement to analyze additional measures (beyond those already adopted in previous nonattainment plan SIP submissions for the area as reasonably available control measure/technology (RACM/RACT), BACM/BACT, and Most Stringent Measures (MSM));
5

attainment demonstration and modeling; reasonable further progress; motor vehicle emission budgets; quantitative milestones; and contingency measures.

5
MSM is applicable if the EPA has previously granted an extension of the attainment date under CAA section 188(e) for the nonattainment area and NAAQS at issue. As mentioned above, the EPA denied Alaska's request to extend the Serious area attainment date for the Fairbanks Serious Nonattainment Area.

Section II of this preamble summarizes comments received during the public comment period for the Proposal and provides the EPA's responses. With respect to most planning requirements, the EPA is finalizing approval and disapproval of the Fairbanks Serious Plan and Fairbanks 189(d) Plan as proposed. However, based on the comments received, the EPA is finalizing approval of certain portions of the Fairbanks Serious Plan and Fairbanks 189(d) Plan that it originally proposed to disapprove. Specifically, the EPA is finalizing approval of Alaska's economic infeasibility demonstrations for a number of area sources identified in Alaska's 2019 base year emission inventory. Alaska's economic infeasibility demonstration provided updated cost information and additional considerations for a number of control measures. Based on these comments, we are finalizing approval for residential and commercial fuel oil combustion, charbroilers, used oil burners, and most of the measures for mobile sources. This means the EPA is approving Alaska's evaluation that ULSD adoption for residential and commercial fuel oil combustion is not economically feasible at this time and that Alaska will not have to adopt additional controls for these emission sources to satisfy the control strategy requirements for Serious areas and Serious areas that fail to attain.
6

6
We note that while we are approving most of Alaska's analysis for mobile sources, Alaska will need to further evaluate, and adopt and implement as necessary, light-duty vehicle anti-idling measures to meet CAA requirements.

The EPA will work with the State of Alaska to address those portions of the Fairbanks Serious Plan and Fairbanks 189(d) Plan that the EPA is disapproving in this action. Alaska may rectify each of these disapprovals with a revised SIP submission. The EPA understands that the State is developing a revised SIP submission to address the plan deficiencies that are identified in section III of this preamble. Specifically, with this new SIP submission, the EPA anticipates Alaska will identify, adopt, and implement all feasible control measures and ensure that such control measures are adopted and submitted in a manner that is enforceable as a practical matter and permanent.

The EPA also understands that the State is nearing completion of an updated air quality model that may better characterize particulate emissions in the Fairbanks PM
2.5
Nonattainment Area. Given this development, Alaska may potentially address the EPA's disapproval of the Fairbanks Serious Plan and Fairbanks 189(d) Plan for failure to adopt and implement SO
2
BACT requirements for major stationary sources though either identifying, adopting, and implementing BACT for the control of SO
2
emissions from these sources or a major stationary source SO
2
precursor demonstration that meets statutory and regulatory requirements and clearly demonstrates these sources do not contribute significantly to PM
2.5
levels that exceed the NAAQS in the Fairbanks PM
2.5
Nonattainment Area.

The State may also update its modeled attainment demonstration, reasonable further progress provisions, quantitative milestones, and attainment projected inventories. Finally, the State will need to evaluate and adopt adequate contingency measures.

II. Public Comments and EPA Responses

The EPA provided a 72-day period for the public to comment on the proposed action that ended on March 23, 2023. We received 164 public comments.
7

The public comments are included in the docket for this action. On March 7, 2023, the EPA held a public hearing in Fairbanks, Alaska, at the Wood Center, University of Alaska Fairbanks. Comments received at the public hearing have been treated the same as written comments submitted to the docket and are summarized in this section II of the preamble. The transcript for the March 7, 2023, public hearing is also included in the docket for this action. Additionally, on April 17, 2023, EPA Region 10 Regional Administrator Sixkiller engaged in consultation with Doyon, Limited as an Alaska Native Corporation under the Alaska Native Claims Settlement Act (ANCSA) on the Proposal.
8

Separately, Doyon, Limited provided comments during the public hearing.

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.

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.

9
85 FR 7760, February 11, 2020.

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
2
precursor demonstration for major

stationary sources. Many of the commenters presumed that the outcome of the precursor demonstration would show that SO
2
emissions from major stationary sources is not a significant contributor to PM
2.5
formation in the Fairbanks 2006 PM
2.5
Nonattainment Area. Other commenters stated generally that the EPA should avoid hasty decisions.

In its comments submitted during the public comment period, Alaska represented that it would complete the necessary modeling work and submit a revised SIP submission to the EPA by May 1, 2024. After the close of the public comment period, Alaska submitted additional comments via letter requesting an additional year from the date of the letter—until July 24, 2024—for Alaska to submit a revised SIP submission. In the latter letter, Alaska enclosed Regional Applied Research Effort (RARE)
10

meeting notes that include preliminary modeling results for the Fairbanks PM
2.5
Nonattainment Area based on continuing analysis of sulfate formation in the area. Alaska asserted that these preliminary modeling results indicate that major point sources of SO
2
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.

10
EPA's Regional Applied Research Effort (RARE) is an Office of Research and Development (ORD) program administered by the Office of Science Policy (OSP) that responds to the high‐priority research needs of EPA Regions.

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
2
precursor demonstration in this SIP submission, if it provides a valid basis to establish that SO
2
emissions from either all sources or major stationary sources do not significantly contribute to PM
2.5
formation.

11
CAA section 110(k)-(
l
) and 179. 40 CFR part 51, subpart F.

As discussed further in the following sections of this preamble, the EPA will review any future SO
2
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.

12
CAA section 110(k)(2), 42 U.S.C. 7410(k)(2).

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.

13
88 FR 1454, January 10, 2023, at pp.1455-1456. EJSCREEN provides a nationally consistent dataset and approach for combining environmental and demographic indicators. EJSCREEN is available at
https://www.epa.gov/ejscreen/what-ejscreen.

The EPA noted in the Proposal that the Fairbanks PM
2.5
Nonattainment Area has some of the highest PM
2.5
concentrations in the country and has been designated nonattainment for the 2006 24-hour PM
2.5
NAAQS since 2009. Residents in Fairbanks and North Pole have been subjected to a high pollution burden for many years. Other health and socioeconomic indices, identified in EJSCREEN, that are impacted by elevated ambient PM
2.5
concentrations include: low life expectancy (95-100 percentile) and asthma (90-95 percentile) in an area south of downtown Fairbanks, and population under age 5 (95-100 percentile) in various areas within the Fairbanks PM
2.5
Nonattainment Area. Most of Alaska,

including the Fairbanks area, is considered “medically underserved.”
14

14
Medically Underserved Areas are defined by the Health Resources and Services Administration as geographic areas with a lack of access to primary care services. For more information see:
https://bhw.hrsa.gov/workforce-shortage-areas/shortage-designation#mups.

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
2.5
Nonattainment Area. EJSCREEN reports for Fairbanks and North Pole are included in the docket for this action.

The EPA noted in the Proposal that Alaska's expeditious submission of a new SIP to correct the deficiencies identified in this final action will ensure the plan meets CAA requirements and achieve attainment as expeditiously as practicable, consistent with the principles of environmental justice.

1. Comments and Responses

The EPA received multiple comments regarding environmental justice considerations.

Comment:
Alaska argued that the EPA proposed to improperly shift the burden of addressing environmental justice from the EPA to the State of Alaska and that the EPA's proposed disapproval of certain elements of the Fairbanks Serious Plan and Fairbanks 189(d) Plan is inconsistent with the principles of environmental justice. As support, Alaska quoted from the EPA's statement in the proposed action: “Alaska's expeditious submission of plan revisions that correct the deficiencies identified in this document will ensure the plan meets CAA requirements, and the measures in the plan when implemented achieves attainment as expeditiously as practicable. And in doing so, the plan revisions address harmful and disproportionate health and environmental effects on underserved and overburdened populations, consistent with the principles of environmental justice.”

Alaska also stated that Fairbanks residents already face severe economic challenges including utility costs, transportation, healthcare, internet connectivity, and food and that adopting and implementing additional control measures will exacerbate these challenges. The commenter stated that the EPA ignored the economic challenges faced by Fairbanks residents in its proposed rule.

Response:
The EPA is finalizing action on the Fairbanks Serious Plan and Fairbanks 189(d) Plan based on a determination of whether these plans meet applicable CAA requirements. The EPA did not propose to disapprove any portion of the Fairbanks Serious Plan and Fairbanks 189(d) Plan based on environmental justice considerations. The EPA clearly articulated that it was proposing to disapprove certain portions of the SIP submissions because of specifically identified deficiencies with respect to CAA requirements.

In the Proposal the EPA did, however, provide factual information concerning environmental justice concerns in the Fairbanks PM
2.5
Nonattainment Area as part of its own evaluation.
15

The EPA provided the results of EJSCREEN and evaluated the impacts of finalizing its proposal for informational purposes only. The EPA expressly stated that it did so “to better understand the context of our proposed action on the Fairbanks Serious Plan and Fairbanks 189(d) Plan on these communities.”
16

Thus, the EPA disagrees with Alaska that it proposed to transfer the EPA's obligations under Executive Order 12898 to the State. Executive Order 12898 does not impose any such obligations on the State of Alaska. Alaska does, however, have the obligation to develop and submit implementation plans for the Fairbanks 2006 24-hour PM
2.5
Nonattainment Area that meet CAA requirements. In the Proposal, the EPA observed that the State doing so will reduce air pollution in the nonattainment area and thus reduce the burden on Fairbanks residents who experience some of the worst air pollution in the country.

15
See,
e.g.,
88 FR 1454, January 10, 2023, at p. 1455 (“Executive Order 12898 . . . requires that Federal agencies, the greatest extent practicable and permitted by law, identify and address disproportionately high and adverse human health or environmental effects of their actions.”).

16
88 FR 1454, January 10, 2023, at pp. 1455-1456.

The EPA also disagrees with Alaska that it ignored the economic challenges faced by Fairbanks residents in its proposed action. On the contrary, the EPA's proposed action and this final action, particularly with regards to the adequacy of the control strategy, was based on a thorough review of the technological and economic infeasibility of specific measures. In many cases, the EPA is finalizing approval of Alaska's rejection of certain control measures based in part on Alaska's demonstrations that the measures are infeasible due either to local circumstances or cost. Nevertheless, the State also oversimplifies this issue by claiming that the cost of imposing controls as required by the CAA to achieve actual attainment of the NAAQS in the Fairbanks PM
2.5
Nonattainment Area necessarily outweighs any public health benefits from such controls. The ongoing nonattainment of the NAAQS in the area likewise imposes costs, as measured in adverse public health impacts due to exposure to air pollution.

Comment:
The EPA also received comments from environmental organizations representing citizens in the Fairbanks PM
2.5
Nonattainment Area concerning environmental justice issues. The commenter advocated that “all possible measures should be taken to reduce and eliminate exposures.” In particular, the commenter asserted that there should be additional Federal Reference Method (FRM) monitors in the area, as well as additional monitors near schools, elder care facilities, and hospitals to assess impacts on vulnerable communities. The commenter asked that regulators give attention to cumulative impacts from exposure in the area, such as from coal ash and per-and polyfluoroalkyl substances (PFAS) in drinking water. Finally, the commenter expressed concern that “without the intervention of the EPA and Federal regulators, those who already bear a disproportionate burden will continue to experience the worst outcomes due to Alaska's inaction on this issue.”

Response:
The EPA agrees with the commenter that there are environmental justice concerns in the Fairbanks PM
2.5
Nonattainment Area, as evidenced by facts indicated by the EJSCREEN analysis, such as the prevalence of asthma and life expectancy. The EPA anticipates that compliance with CAA requirements for nonattainment plans should result in improvements for purposes of environmental justice in this area. As explained in the preceding paragraphs of this preamble, however, the EPA discussed environmental justice impacts of this action in the Proposal for informational purposes only. The EPA's final action, with respect to both approvals and disapprovals, is based on the Agency's evaluation of the Fairbanks Serious Plan and Fairbanks 189(d) Plan with respect to applicable CAA requirements. The EPA will address the commenters specific concerns with respect to monitoring in the area in section II.C. of this preamble.

C. Air Quality Monitoring in the Fairbanks PM
2.5
Nonattainment Area

In the Proposal we described Alaska's air quality monitoring network for the Fairbanks PM
2.5
Nonattainment Area, and noted that it includes four regulatory monitor site locations. Table 1 of this preamble includes the site names, identification numbers, monitor data, and updated design values for the PM
2.5
monitor site locations in Fairbanks. In the Proposal, we explained that with EPA approval, the State discontinued the monitor location at the State Office Building and established the A Street monitor as a monitor location in 2019. Alaska established the A Street monitor location as a State or Local Air Monitoring Station (SLAMS) PM
2.5
monitoring station to characterize PM
2.5
concentrations in the Fairbanks portion of the nonattainment area. The EPA also explained in the Proposal that the Hurst Road monitor measures expected maximum concentrations for the nonattainment area.
17

Following is a table of air quality monitoring data in the Fairbanks PM
2.5
Nonattainment Area. The EPA notes this table was updated from the Proposal because monitoring data from 2022 became available since the Proposal was published. Therefore, Table 1 of this preamble includes the 2020-2022 24-hour Design Values, while the Proposal included the 2019-2021 24-hour Design Values.

17
For further details of the air quality monitoring network in the Fairbanks PM
2.5
Nonattainment Area, see the EPA's approval letters of Alaska's Annual Monitoring Network Plans for each year between 2019 to 2022, which are included in the docket for this action.

Table 1—Fairbanks PM
2.5
Monitoring Locations and Recent Site-Level Design Values

Local site name
Site location
AQS ID

98th percentile

(µg/m
3
)

2020
2021
2022 **

2020-2022 24-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
2.5
Nonattainment Area, a commenter questioned the adequacy of monitoring in the area. The commenter stated that the environmental justice concerns highlight the need for more Federal Reference Monitors (FRM) in the Fairbanks PM
2.5
Nonattainment Area. Specifically, the commenter states that three monitors are insufficient for the nonattainment area, that Alaska should reestablish the State Office Building monitoring site, and establish additional sites, including in the Bjerremark neighborhood.

Response:
As stated in Section II.B of this preamble, the EPA is finalizing action on the Fairbanks Serious Plan and Fairbanks 189(d) Plan based on a determination of whether these plans meet applicable CAA requirements. Regarding the adequacy of the existing monitoring network, the EPA's review and approval of Alaska's PM
2.5
monitoring network for the Fairbanks 2006 PM
2.5
Nonattainment Area is outside the scope of this action. The EPA separately evaluates the adequacy of the State's monitoring network in the context of the Annual Monitoring Network Plans (ANP) developed and submitted by the State to the EPA pursuant to 40 CFR part 58, or in the context of an Infrastructure SIP submission for a new or revised NAAQS.

The commenter specifically questioned the State's decision to shut down the State Office Building monitor location and to relocate the monitor to the A Street monitor location. Alaska documented the basis for this change and requested the site relocation in a letter to the EPA dated May 15, 2019, per 40 CFR 58.14(b). The EPA approved the relocation of the State Office Building monitoring site to A Street and the establishment of the A Street station as a SLAMS station, including the site relocation, as meeting the requirements of 40 CFR part 58, Appendix D in a letter dated June 26, 2019.
18

This network modification was also documented in Alaska's 2019 ANP dated June 28, 2019,
19

which the EPA approved on November 21, 2019. Prior to submitting its 2019 ANP, Alaska offered a 32-day public comment period starting on May 23, 2019, during which members of the public could submit comments on the adequacy of the ANP.

18
Letter from Debra Suzuki, EPA Region 10 Air Planning, State/Tribal Coordination Branch to Barbara Trost, Alaska Department of Environmental Conservation, Air Monitoring and Quality Assurance Program, June 26, 2019, included in the docket for this action.

19
2019 Annual Air Quality Monitoring Network Plan, Alaska Department of Environmental Conservation, June 28, 2019, at p 33, available at:
https://dec.alaska.gov/air/air-monitoring/monitoring-plans.

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

additional monitors beyond the minimum number required.

20
2022 Annual Air Quality Monitoring Network Plan, Alaska Department of Environmental Conservation, Final Draft, June 28, 2022.

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
2.5
Nonattainment Area. Other commenters asserted that the monitors are outdated, inaccurate below negative 20 degrees Fahrenheit, and do not distinguish between hydroxymethanesulfonate (HMS) from inorganic sulfate and organic mass and PM
2.5
. These commenters stated this is creating problems with monitors in the North Pole and Fairbanks portions of the nonattainment area, respectively.

Response:
As previously discussed, in this action, the EPA is evaluating whether the Fairbanks Serious Plan and Fairbanks 189(d) Plan meet applicable requirements for nonattainment plans. These commenters raised concerns about the adequacy of the monitor network. The EPA's review and approval of Alaska's PM
2.5
monitoring network for the Fairbanks PM
2.5
Nonattainment Area is outside the scope of this action. The EPA is finalizing action on the Fairbanks Serious Plan and Fairbanks 189(d) Plan. These SIP submissions do not contain Alaska's monitoring plans. Such monitoring plans are contained in Alaska's ANP developed and submitted to the EPA pursuant to 40 CFR part 58. The EPA approved these monitoring network plans as meeting the requirements of 40 CFR part 58,
21

including that the monitoring stations are representative of area-wide air quality and that Alaska sited at least one monitoring station at neighborhood or larger scale in an area of expected maximum concentration.
22

Alaska also measures SO
2
at the Hurst Road site in North Pole, and speciated PM
2.5
at both Hurst Road and the Fairbanks National Core multipollutant (NCore) monitoring station.

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.

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
2.5
Nonattainment Area.

Table 2—Air Quality Samplers in the Fairbanks PM
2.5
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.

23
U.S. Environmental Protection Agency, Center for Environmental Measurements & Modeling, Air Methods & Characterization Division, List of Designated Reference and Equivalent Methods, June 15, 2023, available at
https://www.epa.gov/system/files/documents/2023-06/List_of_FRM_FEM_%20June%202023_Final.pdf.

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
2.5
Nonattainment Area.

D. Clean Air Act Requirements for PM
2.5
Serious Area Plans and Serious PM
2.5
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
2.5
nonattainment areas and requirements for CAA section 189(d) plans and will not be restated here. In the Proposal, the EPA proposed combined requirements for PM
2.5
Serious areas and Serious areas that fail to attain. Specifically, the EPA explained in the Proposal that the CAA does not contain provisions that address precisely how a State should meet all of the planning requirements for a Serious nonattainment area, in the case where the area has already failed to attain the NAAQS by the Serious area attainment date, but before the State has met all of the planning requirements for Serious nonattainment areas. By extension, the CAA does not account for potential conflicts between the required plan provisions for Serious area plans and CAA section 189(d) plans, particularly with respect to the attainment projected inventory, attainment demonstration, reasonable further progress (RFP), and quantitative milestone (QM) plan provisions. These elements are required for all PM
2.5
nonattainment plans and are dependent on a single projected attainment date that complies with the statutory requirements governing the area. Thus, in the event that a State is obligated to submit both a Serious area plan and a CAA section 189(d) plan, a conflict arises between the applicable attainment date by which States should structure these plan provisions and against which the EPA should evaluate them.

Accordingly, the EPA proposed that it should evaluate any previously unmet Serious area plan requirements based on the current, applicable attainment date for nonattainment areas subject to CAA section 189(d), and not the original Serious area attainment date December

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).

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
2.5
nonattainment area that failed to attain the PM
2.5
NAAQS by the applicable Serious area attainment date shall be as expeditious as practicable, but no later than 5 years following the effective date of the EPA's finding that the area failed to attain by the original Serious area attainment date, except that the Administrator may extend the attainment date to the extent the Administrator deems appropriate, for a period no greater than 10 years from the effective date of the EPA's determination that the area failed to attain, considering the severity of nonattainment and the availability and feasibility of pollution control measures.”

25
42 U.S.C. 7502(c)(3).

26
42 U.S.C. 7502(c)(1).

27
42 U.S.C. 7513a(b)(1)(B).

28
MSM is applicable if the EPA has previously granted an extension of the attainment date under CAA section 188(e) for the nonattainment area and NAAQS at issue. The EPA denied Alaska's request to extend the Serious area attainment date for the Fairbanks Serious Nonattainment Area.

29
42 U.S.C. 7513a(d).

30
42 U.S.C. 7513(c)(2) and 7513a(b)(1)(A).

31
42 U.S.C. 7502(c)(2).

32
42 U.S.C. 7513a(c).

33
42 U.S.C. 7513a(e).

34
42 U.S.C. 7502(c)(9).

35
42 U.S.C. 7502(c)(5), 7513a(b)(3), 7513a(d), and 7513a(e). In the Proposal, the EPA inadvertently omitted reference to CAA sections 172(c)(5), 189(d), and 189(e), 40 CFR 51.1003(b)(1)(viii), and 40 CFR 51.1003(c)(1)(viii).

Table 3—Combined Fairbanks Serious Plan and Fairbanks 189(
d
) Plan Requirements

Description
Legal/regulatory requirement

CAA planning requirements for PM
2.5

Serious Areas and Areas That Fail To Attain

Base year emissions inventory for Serious areas subject to CAA section 189(b) *

CAA section 172(c)(3);
25
40 CFR 51.1008(b)(1).

Base year emissions inventory for areas subject to CAA section 189(d)
CAA section 172(c)(3); 40 CFR 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 strategy that ensures that best available control measures (BACM), including best available control technologies (BACT), for the control of direct PM
2.5
and PM
2.5
precursors are implemented in the area

CAA section 189(b)(1)(B);
27
40 CFR 51.1010(a).

Additional measures (beyond those already adopted in previous nonattainment plan SIP submissions for the area as RACM/RACT, BACM/BACT, and MSM
28
(if applicable)) that provide for attainment of the NAAQS as expeditiously as practicable and, from the date of such submission until attainment, demonstrate that the plan will at a minimum achieve an annual five percent reduction in emission of direct PM
2.5
or any PM
2.5
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

CAA section 189(d);
29
40 CFR 51.1010(c).

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) provisions

CAA section 172(c)(2);
31
40 CFR 51.1012.

Quantitative milestones

CAA section 189(c);
32
40 CFR 51.1013.

An adequate evaluation by the State of sources of all four PM
2.5
precursors for regulation, and implementation of controls on all such precursors, unless the State provides a demonstration establishing that it is either not necessary to regulate a particular precursor in the nonattainment area at issue in order to attain by the attainment date, or that emissions of the precursor do not make a significant contribution to PM
2.5
levels that exceed the standard **

CAA section 189(e);
33
40 CFR 51.1006.

Contingency measures applicable to Serious areas subject to CAA section 189(b)

CAA section 172(c)(9);
34
40 CFR 51.1014.

Contingency measures applicable to Serious areas subject to CAA section 189(d)
CAA section 172(c)(9); 40 CFR 51.1014.

Nonattainment new source review provisions

CAA sections 172(c)(5), 189(b)(3), 189(d), and 189(e), and 40 CFR 51.165 40 CFR 51.1003(b)(1)(viii), and 40 CFR 51.1003(c)(1)(viii).
35

*
EPA finalized approval of this requirement on September 24, 2021 (86 FR 52997).

**
EPA finalized approval of this requirement applicable to Serious areas subject to CAA section 189(b) on September 24, 2021 (86 FR 52997).

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.

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
2.5
nonattainment area is governed by CAA sections 172 and 179 and 40 CFR 51.1004(a)(3), which require that the new attainment date must be as expeditious as practicable, but no later than five years from the date of publication in the
Federal Register
of the EPA's determination that the area failed to attain the relevant NAAQS. In addition, the EPA may extend the attainment date by up to five additional years (thus up to 10 years from the date of publication of the notice of finding of failure to attain by the applicable attainment date for the area) if the EPA deems it appropriate “considering the severity of nonattainment and the availability and feasibility of pollution control measures.”

The EPA notes that any extension to the attainment date pursuant to CAA section 172(a)(2)(A) must be predicated on a SIP submission that demonstrates that attainment within five years from

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
2.5
NAAQS by the Serious area attainment date, then the statutory consequence is that the State is subject to the planning requirements of CAA section 189(d).
37

A State would only have to comply with the MSM requirements of CAA section 188(e) if the State had sought, and the EPA had granted, an extension of the Serious area attainment date and then failed to attain by that extended attainment date.

37
The PM
2.5
SIP Requirements Rule at 40 CFR 51.1005(c) implements this statutory prescription, stating: “If a Serious area fails to attain a particular PM
2.5
NAAQS by the applicable Serious area attainment date, the area is then subject to the requirements of section 189(d) of the Act, and, for this reason, the state is prohibited from requesting an extension of the applicable Serious area attainment date for such area.”

On September 2, 2020, the EPA determined that the Fairbanks PM
2.5
Nonattainment Area failed to attain by the Serious area attainment date.
38

As part of that same action, the EPA denied Alaska's request to extend the Serious area attainment date under CAA section 188(e). As a result of this action, the State became subject to the requirements of CAA section 189(d). Neither CAA section 189(d) nor the PM
2.5
SIP Requirements Rule under these circumstances require that the State SIP include MSM, unless the EPA previously approved the State's request to extend the Serious area attainment date under CAA section 188(e). The regulation at 40 CFR 51.1010(c)(2)(i) provides that: “For the sources and source categories represented in the emission inventory for the nonattainment area, the state shall identify the most stringent measures for reducing direct PM
2.5
and PM
2.5
plan precursors adopted into any SIP or used in practice to control emissions in any state,
as applicable.
” (Emphasis added). As made clear in the response to comments to the PM
2.5
SIP Requirements Rule, the EPA included the phrase “as applicable” in this regulation to make clear that a State is only required to identify and impose MSM if the EPA has previously extended the Serious area attainment date.
39

Thus, the requirement to identify, adopt, and implement MSM as part of the control strategy for this NAAQS does not apply to the Fairbanks PM
2.5
Nonattainment Area.
40

38
Determination of Failure To Attain by the Attainment Date and Denial of Serious Area Attainment Date Extension Request; AK: Fairbanks North Star Borough 2006 24-Hour Fine Particulate Matter Serious Nonattainment Area, 85 FR 54509, September 2, 2020.

39
“In the event the area previously had received an extension of the Serious area attainment date pursuant to section 188(e), the reevaluation of control measures referenced in section 51.1010(c)(2) should include a reevaluation of MSM. (For this reason, section 51.1010(c)(2)(i) refers to the reevaluation of MSM “as applicable.”) If, however, the area did not previously request and receive an extension of the Serious area attainment date under section 188(e), the MSM requirement does not apply.” Response to Comments on the Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements, July 29, 2016, Docket No. EPA-HQ-OAR-2013-0691-0145 at p. 155.

40
The EPA notes, however, that the state needs to consider implementing MSMs as contingency measures.

Comment:
One commenter questioned the Federal government's authority generally and the EPA's authority and jurisdiction specifically to regulate air quality in the State of Alaska. The commenter stated that the Bill of Rights contains restrictions on the Federal government's power and that the Tenth Amendment to the United States Constitution states that the power not delegated to the United States nor prohibited to the States are reserved to the States and the people. The commenter further stated: “There's nowhere in the constitution that talks about a multitude of alphabet agencies the Federal government has created, and you actually are the ones that are in violation. You're talking about how we're in violation of your air standards, but you're the agency that's in violation of our constitutional limitations against you. You have no jurisdiction. You're violating due process in separat[ion] of powers.”

Response:
The EPA disagrees with the commenter that the Federal government generally, and the EPA specifically, lack the authority to regulate air quality in Alaska as in all other States. In the CAA, Congress authorized the EPA to exercise numerous obligations related to air quality, including establishing the NAAQS, designating areas that fail to attain the NAAQS, and reviewing and approving or disapproving State SIP submissions required to provide for attainment and maintenance of the NAAQS.
41

Congress also granted the EPA general rulemaking authority to administer and implement the CAA.
42

The United States Supreme Court has acknowledged the Federal government's and the EPA's authority to regulate national air quality in the manner laid

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
2.5
Nonattainment Area. Furthermore, the EPA's exercise of such authority—either in general or specific to these Plans—is within the Federal government's constitutional authorities and does not violate any individual constitutional or civil rights.

41
CAA sections 107, 109, 110, 171-192, 42 U.S.C. 7407, 7409, 7410, 7501-4514a; see also
Sierra Club
v.
EPA,
671 F.3d 955, 958-959 (9th Cir. 2012).

42
CAA section 301(a), 42 U.S.C. 7601(a) (“The Administrator is authorized to prescribe such regulations as are necessary to carry out his functions under this chapter.”).

43

Train
v.
Nat'l Resources Def. Council, Inc.,
421 U.S. 60, 64-65 (1975) (“[The 1970 Clean Air Act] Amendments sharply increased Federal authority and responsibility in the continuing effort to combat air pollution.”);
Union Elec. Co.
v.
EPA,
427 U.S. 246, 249-250 (1976) (“[T]he Amendments reflect congressional dissatisfaction with the progress of existing air pollution programs and a determination to “tak(e) a stick to the States,” in order to guarantee the prompt attainment and maintenance of specified air quality standards. The heart of the Amendments is the requirement that each State formulate, subject to EPA approval, an implementation plan designed to achieve national primary ambient air quality standards those necessary to protect the public health.”).

E. Review of the Fairbanks Serious Plan and Fairbanks 189(d) Plan

1. Emission Inventories

i. Summary of Proposal

The EPA proposed to approve the 2019 base year emissions inventory on the basis that it met the requirements of CAA section 172(c)(3) and 40 CFR 51.1008. The EPA stated that calendar year 2019 was an appropriate base year for the Fairbanks 189(d) Plan because it was one of the three years for which the EPA used monitored data to determine that the area failed to attain the PM
2.5
NAAQS by the applicable Serious area attainment date.
44

The base year emissions inventory was a seasonal inventory, based on two historical meteorological episodes judged by the EPA to be representative of the range of meteorological conditions that lead to exceedances of the 24-hour NAAQS. This was an appropriate temporal scope for a base year emissions inventory. Exceedances of the 24-hour NAAQS, other than those exceedances attributable to non-anthropogenic emissions, occur primarily in the colder months during fall, winter, and spring when home heating sources are widely used. The State provided a justification that for purposes of the emissions inventory, the baseline emissions inventory season should be from October 1 to March 31, and the EPA agrees with this.

44
85 FR 54509, September 2, 2020.

The EPA proposed to disapprove the projected emissions inventory on the basis that the Fairbanks 189(d) Plan did not satisfy the requirement of 40 CFR 51.1008(c)(2) regarding an attainment projected emission inventory for the most expeditious attainment date. The Fairbanks 189(d) Plan contained an attainment projected emissions inventory, and Alaska projected attainment by December 31, 2024. The EPA noted that the control strategy does not contain all required control measures. Therefore, the attainment projected emissions inventory does not necessarily take into consideration all required emissions reductions. Because the State did not properly evaluate and adopt control measures for all relevant source categories and pollutants, it was neither possible nor appropriate to determine that the projected emission inventory was consistent with the level of emissions needed to meet the overarching requirement for attainment of the NAAQS in the area as expeditiously as practicable. We do note that on September 25, 2023, Alaska withdrew is SO
2
BACT determinations and analysis for major stationary sources in the Fairbanks PM
2.5
Nonattainment Area.
45

45
“Fairbanks SIP submissions for the Serious area and 189(d) plans” Letter from Emma Pokon, Acting Commissioner, Alaska Department of Environmental Conservation, to Casey Sixkiller, Regional Administrator, EPA Region 10, September 25, 2023. Included in the docket for this action.

In addition, the EPA observed that Alaska's proposed attainment date of 2024 is predicated on a modeling platform that is in need of improvement, including development of a quantitative performance evaluation for the Hurst Road monitor in North Pole that is based on recent meteorological episodes and PM
2.5
speciation data.

ii. Final Rule

The EPA is finalizing approval of the base year 2019 emission inventory. The EPA is finalizing disapproval of the projected attainment year emission inventory.

iii. Comments and Responses

Comment:
Alaska stated that the EPA should avail itself of the opportunity to incorporate new data with the modeling updates described in Alaska's Technical Analysis Protocol which, until this year, were unavailable. The State suggested that the cumulative effect of new data combined with the extensive modeling updates will strengthen planning documents, improve accuracy, and expedite attainment.

Response:
The EPA's final action is based on the SIP submissions before it. As discussed in section II.A of this preamble, the EPA has a mandatory duty to approve, disapprove, or conditionally approve the Fairbanks Serious Plan and Fairbanks 189(d) Plan. Alaska intended these submissions to meet applicable CAA requirements for Serious areas and Serious areas that fail to attain by the Serious area attainment date. Within these SIP submissions, Alaska based the attainment projected emissions inventories and modeled attainment demonstrations on the 2008 episodes. Alaska thus represented that these episodes met CAA requirements for the attainment projected inventory.

The EPA is disapproving the attainment projected emissions inventory and modeled attainment demonstration in the Fairbanks 189(d) Plan for the reasons stated in the Proposal and in this final action. To the extent that the State elects to incorporate new data and new modeling updates in a subsequent SIP submission, it may do so. The EPA anticipates that the State will make a new SIP submission to address the deficiencies that required disapproval in this action. The EPA notes that CAA sections 110 and 179 provide a process whereby States may rectify disapprovals through a subsequent SIP submission and thereby avoid the potential for mandatory sanctions and a FIP. To that end, the EPA has been coordinating with Alaska on the monitoring and modeling analyses described by the State. The EPA will review the modeled attainment demonstration, and the associated attainment projected emission inventory, as updated by the State in subsequent SIP submissions for compliance with applicable requirements.

Comment:
GVEA stated that the trends and changing nature of residential wood combustion need further attention. GVEA noted that both the availability and projected demand for dried wood need to be solidly developed and included in the projected emissions inventory. GVEA stated that since residential wood combustion is demonstrated to be an important contributor to PM
2.5
concentrations in the Fairbanks PM
2.5
Nonattainment Area, that trend and associated emissions reductions need to be assessed and included in a robust modeling analysis that demonstrates compliance with the PM
2.5
Ambient Air Quality Standards.

Response:
The EPA agrees with GVEA that usage of residential wood combustion and the availability of dry wood are key factors that the State needs to consider in an updated assessment of control measures and expeditious attainment. We do note that Aurora Energy has established one dry wood kiln in Fairbanks (using the waste heat from the Chena Power Plant) with plans to expand operations. Ultimately,

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
2.5
Nonattainment Area are part of the boundary conditions input to the photochemical model that is used to evaluate relevant sources. Neither the State nor the EPA have identified a significant contribution from overseas emissions to ambient PM
2.5
levels in the area. Absent further evidence, the EPA will continue to assess the impacts of sources of emissions in the area, and control requirements for those sources, as identified in Alaska's analysis.

2. Pollutants Addressed

i. Summary of Proposal

Alaska submitted as part of the Fairbanks 189(d) Plan comprehensive precursor demonstrations for existing sources of NO
X
and VOC emissions. Alaska did not submit a precursor determination for existing sources of SO
2
and NH
3
emissions.
46

Moreover, Alaska did not submit a nonattainment new source review (NNSR) precursor demonstration for any PM
2.5
precursor. Alaska regulates all PM
2.5
precursors under its NNSR program. The EPA approved Alaska's NNSR program on August 29, 2019 (84 FR 45419). In the Proposal, the EPA evaluated the State's precursor demonstration included in the Fairbanks 189(d) Plan consistent with the PM
2.5
SIP Requirements Rule and the recommendations in the May 30, 2019, PM
2.5
Precursor Demonstration Guidance.
47

46
According to Alaska, there is a negligible amount of NH
3
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
2.5
) Precursor Demonstration Guidance, May 30, 2019.

The EPA proposed to approve the State's demonstration that NO
X
and VOC emissions do not contribute significantly to ambient PM
2.5
levels that exceed the 2006 24-hour PM
2.5
NAAQS in the Fairbanks PM
2.5
Nonattainment Area for purposes other than nonattainment new source review (NNSR) program requirements. As a result, Alaska would not be required to identify and impose control measures for NO
X
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
X
and VOC emissions.

The EPA noted that the concentration-based modeling analysis of VOC emissions demonstrates that anthropogenic VOCs have impacts on PM
2.5
concentrations in the Fairbanks PM
2.5
Nonattainment Area that are well below the 1.5 microgram per cubic meter (µg/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
X
emitted from all sources is an insignificant contributor to local PM
2.5
concentrations.

ii. Final Rule

The EPA is finalizing approval of Alaska's PM
2.5
precursor demonstrations for NO
X
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
2
and NH
3
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
X
, SO
2
, VOCs, and NH
3
as precursors to PM
2.5
with respect to NNSR program requirements.

iii. Comments and Responses

Comment:
Citizens for Clean Air, a project of Alaska Community Action on Toxics, and the Sierra Club Alaska Chapter commented that each day, 15.73 tons of NO
X
are emitted in Fairbanks. These compounds are “precursors” that undergo chemical reactions to form PM
2.5
. In September 2021, the EPA approved Alaska's 2019 precursor demonstrations for VOCs and NO
X
, finding that Alaska had sufficiently demonstrated that VOCs and NO
X
do not significantly contribute to the PM
2.5
problem in Fairbanks. To meet its CAA section 189(d) obligations, the State submitted an updated precursor analysis in 2020. This updated analysis included one new NO
X
model run, and Earthjustice noted that the EPA proposed to find that the weight of evidence suggested that NO
X
emitted from all sources is an insignificant contributor to local PM
2.5
concentrations.

The commenters disagreed with the EPA's approval of Alaska's new NO
X
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
X
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
X
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
2.5
concentrations due to anthropogenic NO
X
emissions were ≤ 1.22 μg/m
3
in 2019 for all model grid cells containing regulatory monitors, and therefore were below the 1.5 μg/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 μg/m
3
—approaching the 1.5 μg/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
X
.

Response:
While the State only completed one new model run (a run with a 50% reduction of NO
X
emissions from anthropogenic sources) for the precursor demonstration in the Fairbanks 189(d) Plan, the EPA also considered the NO
X
precursor model runs from the Fairbanks Serious Plan when evaluating the NO
X
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
2.5
Nonattainment Area or to the modeling platform between the Fairbanks Serious Plan and the Fairbanks 189(d) Plan. When evaluating the NO
X
precursor demonstration submitted by the State, the EPA reviewed several model runs,

focusing on both the average and maximum modeled PM
2.5
concentrations.

First, a major source precursor analysis where a baseline model run was compared to a control model run with a 100% reduction of NO
X
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
X
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
X
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
X
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

48
Kotchenruther (2016). Source apportionment of PM
2.5
at multiple Northwest U.S. sites: Assessing regional winter wood smoke impacts from residential wood combustion.
Atmospheric Environment,
142, 210-219. Available at:
https://doi.org/10.1016/j.atmosenv.2016.07.048.
Ward (2013). The Fairbanks, Alaska PM
2.5
Source Apportionment Research Study Winters 2005/2006-2012/2013, and Summer 2012. University of Montana-Missoula Center for Environmental Health Sciences. Available at:
https://dec.alaska.gov/air/anpms/communities/fbks-pm2-5-science/.

Based on all of these data sources, the EPA agrees with the State that NO
X
is not a significant contributor to PM
2.5
measured in the nonattainment area.

3. Control Strategy

Alaska submitted as part of the Fairbanks Serious Plan BACM and BACT analyses intended to identify and evaluate potential BACM and BACT controls for the stationary area sources and source categories, stationary point sources, and mobile sources in the baseline emissions inventory. Alaska submitted an update to the analysis of control measures for stationary area sources and mobile sources in the Fairbanks 189(d) Plan. Alaska did not update the analysis for stationary point sources, including major stationary sources.

The EPA proposed to approve Alaska's determination that there are no specific NH
3
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
2.5
emissions also reduce NH
3
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
3
discussed in section II.E.2 of this preamble. Thus, the EPA proposed to determine that no additional controls of NH
3
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
3
controls. Based on comments, the EPA is also finalizing approval of certain portions of Alaska's supplemental BACM and BACT analysis for stationary areas sources and mobile sources, as explained further in section II.E.3 of this preamble. Alaska submitted comments on the Proposal that provided additional analysis to demonstrate that that potential control measures for certain source categories are either technologically or economically infeasible at this time. Measures that the EPA agrees are infeasible in the area at this time include: an ultra-low sulfur diesel (ULSD) requirement for residential and commercial fuel oil combustion; controls on charbroilers and used oil burners; and certain transportation measures. The EPA is finalizing disapproval of the remaining portions of Alaska's BACM analysis and adopted rules as proposed. Table 4 of this preamble provides an overview of the final action.

Table 4—Summary of the EPA's Final Evaluation of Alaska's BACM and BACT Analysis for Stationary Areas Sources and Mobile Sources

Emissions source category
EPA evaluation of specific BACM measures
State rules relevant to adopted BACM
Specific BACM measures, as identified by Alaska

Solid fuel burning
Approve: wood-fired heating device requirements and resulting emissions
18 AAC 50.075, except (d)(2); 18 AAC 50.077, except (g) and (q)
BACM Measures: 1-30, 33-47, 63, 65-66, R1, R4-R7, R9-R12, R15, R16-R17, R29.

Disapprove: Wood seller/dry wood requirements; coal-fired heating devices
18 AAC 50.076(k); 18 AAC 50.079(d), (e), and (f)
BACM Measures: 31-32; 48-49.

Residential and commercial fuel oil combustion
Approve: pot burners, waste oil; fuel oil boilers; ULSD as heating oil (economically infeasible)
18 AAC 50.078(b)
BACM Measures: 51, 52-53, 61-62.

Small commercial area sources
Approve: incinerators (no sources identified); charbroilers (economically infeasible); used oil burners (economically infeasible)
18 AAC 50.078(c)
BACM Measures: 68-70.

Disapprove: coffee roasters
18 AAC 50.078(d)
BACM Measure: 67.

Energy efficiency measures
Disapprove: weatherization and energy efficiency

BACM Measure: 64.

Emissions from mobile sources
Approve: CARB standards; school bus retrofits; road paving; other transportation measures; vehicle idling- heavy-duty vehicles (economically infeasible)

BACM Measures: 54-59, 60 (in part), R20.

Disapprove: light-duty vehicle idling at schools and commercial establishments

BACM Measure: 60 (in part).

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
2.5
, SO
2
, and NH
3
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
2.5
and SO
2
emissions. We also proposed to approve Alaska's analysis that found no available controls that specifically reduce NH
3
.
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).

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
3
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
3
controls existed for each of the stationary sources listed.

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 µg/m
3
(Stage 1) and 30 µg/m
3
(Stage 2), respectively. Alaska also has an advisory level set at 15 µg/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
2.5
and SO
2
emissions.

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.

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
2.5
and SO
2
emissions.

52
Missoula City-County Air Pollution Control Program, Rule 9.203(1)(a), available at:
https://www.missoulacounty.us/government/health/health-department/administration/regulations-ordinances/air-pollution-control-program.

Alaska's regulation 18 AAC 50.075(f), applicable to the Fairbanks PM
2.5
Nonattainment Area, prohibits the operation of a solid fuel-fired heating device emissions when visible emissions exceed 20 percent opacity for more than six minutes in any one hour, except during the first 15 minutes after initial firing of the device, when the opacity limit must be less than 50 percent. The rule also prohibits operation of the device such that visible emissions cross property lines. These opacity limits provide a visual indicator for the proper operation of a solid fuel heating device (for a discussion of the EPA's SSM policy, see the Proposal). The EPA proposed to approve this measure as BACM for this source category.
53

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.

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
2.5
24-hour NAAQS. This provision includes limits on emissions that apply during all modes of source operation and impose continuous emission controls on solid fuel heating devices consistent with the requirements of the CAA applicable to SIP provisions. In addition, the provision supports progress toward attainment of the 2006 PM
2.5
NAAQS in the Fairbanks PM
2.5
Nonattainment Area.

The EPA also proposed to find that the State's additional removal or render inoperable restrictions placed on non-certified EPA woodstoves, non-pellet outdoor hydronic heaters, coal-fired heating devices, and EPA-certified woodstoves greater than 25 years old meet BACM requirements for PM
2.5
and SO
2
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,

including device registration under 18 AAC 50.077(h) and dry wood requirements for wood sellers 18 AAC 50.076 represent BACM for PM
2.5
and SO
2
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).

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

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
2.5
Nonattainment Area. Compliance with this prohibition is monitored and enforced through the registration requirements in 18 AAC 50.076(d)-(e).

Collectively, the EPA proposed to find that Alaska met the BACM and BACT requirements for the solid fuel burning source category for PM
2.5
and SO
2
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
3
-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

56
18 AAC 50.077(a)-(f).

57

Id.

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
2.5
emissions and SO
2
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
2.5
Nonattainment Area.
60

Alaska determined that these measures were technologically and economically feasible. The EPA concurs with this assessment. Absent a determination and supporting documentation that these measures are infeasible, neither Alaska nor the EPA have a basis to not adopt and implement these measures as necessary components of the control strategy required by the CAA.

59
18 AAC 50.076.

60
18 AAC 50.076(g).

Comment:
Several comments opposed the EPA's approval of the control measures for solid fuel burning devices, arguing that Alaska should instead ban all wood stoves in the nonattainment area.

Response:
As part of development of the Fairbanks Serious Plan, Alaska specifically assessed the feasibility of banning woodstoves all together
61

and the feasibility of banning woodstoves in

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.

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
2.5
. Once Alaska issues a burn ban, wood stove operators must withhold fuel from wood stove devices (other than exempt devices) and ensure that combustion has ceased within three hours of the effective time of the declaration.
64

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
2.5
Moderate area plan (Fairbanks Moderate Plan) to meet RACM requirements.
65

Thus, the woodstove curtailment program meets the requirements as BACM for the wood-fired heating device emission source category. Since adoption, Alaska has employed a model to forecast days with high PM
2.5
concentrations, regularly issued Stage 1 and Stage 2 alerts, monitored compliance, and issued notices of noncompliance.
66

Alaska issues compliance letters, advisory letters, and Notice of Violation letters each year. During the 2021-22 winter season, Alaska sent 136 compliance or advisory letters.
67

Thus, Alaska is implementing the measure.

65
82 FR 42457, September 8, 2017.

66

See
Alaska Department of Environmental Conservation (ADEC) Curtailment and Alerts in the Fairbanks North Star Borough Nonattainment Area, available at
https://dec.alaska.gov/air/anpms/communities/fbks-pm2-5-curtail-alert/. See also,
State Air Quality Control Plan Vol. II, Chapter III.D.7.12 Fairbanks Emergency Episode Plan.
See, e.g.,
Alaska Department of Environmental Conservation, Division of Air Quality, FNSB Air Quality Stage 2 Alert, March 1, 2019 (included in Docket).

67
2nd Annual Report, Air Quality Control Program Implementation Status, Fairbanks North Star Borough PM
2.5
Nonattainment Area, Alaska Department of Environmental Conservation and Fairbanks North Star Borough, available at:
https://dec.alaska.gov/air/anpms/communities/progress-annual-reports/.

With respect to compliance, the EPA understands the commenter's concern that there is insufficient compliance and that compliance can affect the effectiveness of a control measure. Alaska is likewise aware of issues regarding compliance, and has taken steps to try to assure better compliance. When assessing whether a specific control measure meets BACM requirements, however, the EPA is evaluating whether the measure as formulated meets applicable stringency requirements and other requirements for SIP provisions, including that the measure is legally and practically enforceable. A lack of total compliance (actual or projected) does not necessarily disqualify a measure as BACM. Concerns about compliance rates with the requirement are reflected in other ways, such as in the amount of SIP emissions reduction credit the State claims and the EPA provides for a given measure (
e.g.,
a measure with 50 percent compliance receives 50 percent credit towards other requirements such as the attainment projected emissions inventory, RFP, QMs, and the modeled attainment demonstration). In addition, consistent with CAA section 110(a)(2)(C), States are required to have a program to enforce SIP requirements. Similarly, the EPA determined that the State met the requirements for CAA section 110(a)(2)(E) with respect to adequacy of State legal authority, personnel, and resources need to implement the SIP. The EPA determined that Alaska satisfied these requirements in its latest approval of the State's PM
2.5
infrastructure SIP submission.
68

We note that a State's failure to implement a control measure could be the basis for a finding under CAA section 179 and that is likely the more appropriate authority to address any failure to enforce SIP measures. The EPA has made no such finding for Alaska, generally, nor the Fairbanks PM
2.5
Nonattainment Area, specifically.

68
Air Plan Approval; AK: Fine Particulate Matter Infrastructure Requirements, 83 FR 60769, November 27, 2018, at p. 60771.

Comment:
One commenter questioned why use of electrostatic precipitators (ESPs) is not part of the control strategy.

Response:
Alaska and the Fairbanks North Star Borough (FNSB) reviewed a requirement to install ESPs on woodstoves as part of its BACM analysis in the Fairbanks Serious Plan.
69

In the Fairbanks Serious Plan, the State also included a summary of current ESP requirements and the FSNB's research and assessment of the feasibility of using ESPs.
70

Ultimately, Alaska determined that requiring installation of ESPs was technologically infeasible. In addition, Alaska raised concerns that exempting persons who install ESPs from having to comply with the curtailment program would be less stringent than the current requirements.

69
State Air Quality Control Plan, Volume III, Appendix III.D.7.07, at pp. 109-110, Adopted November 19, 2019.

70
State Air Quality Control Plan, Volume II, Chapter III.D.7.07 at pp. 101-103, adopted November 19, 2019.

The EPA proposed to approve Alaska's determination that requiring ESPs is not technologically feasible. The EPA is finalizing this approval as proposed. Alaska's feasibility assessment identified several technological challenges to

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:
https://www.epa.gov/air-quality-implementation-plans/targeted-airshed-grants-program.

75
Voluntary Solid Fuel Burning Appliance Change Out Program Application, available at
https://www.fnsb.gov/DocumentCenter/View/811/WoodPelletCoal-Appliance-Change-Out-Program-Application-PDF.

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
2.5
Nonattainment Area. In this action, the EPA is evaluating whether the control measures that the State has identified, adopted and submitted constitute BACM for this source category. Alaska conducted a review of available controls for the solid fuel heating device source category and did not identify temperature sensors or converting to renewable energy generation as potential control measures in the nonattainment area. Alaska's BACM identification and evaluation process for the solid fuel burning source category meets CAA requirements. Based on the analysis in the Fairbanks Serious Plan and the Fairbanks 189(d) Plan, the EPA has concluded that the existing measures do meet BACM and does not agree that the additional control strategies that the commenter suggest are required at this time.

To the extent that more measures may be required for attainment and maintenance of the NAAQS in this area in the future, the commenters may wish to continue to advocate for them in future SIP development processes. In addition, consistent with CAA section 116, Alaska has authority to adopt measures that are more stringent than required under the CAA, within certain limitations, and may elect to do so.

ii. Residential and Commercial Fuel Oil Combustion

a. Summary of Proposal

In order to satisfy the SO
2
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
2
removed (SO
2
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
2.5
Nonattainment Area through the winter months.

The EPA noted that a State must adopt and implement an identified BACM unless the State demonstrates the potential measure is either technologically or economically infeasible. Alaska identified the ULSD requirement as BACM for this source category and its own analysis indicates this requirement is feasible. While the EPA acknowledged in the Proposal that implementing a fuel switch from #2 to ULSD may be challenging, The EPA also stated that the challenges identified by Alaska in the Fairbanks Serious PM
2.5
and the Fairbanks Section 189(d) Plan were insufficient to support an infeasibility demonstration. The EPA stated in the Proposal that this is particularly so when many jurisdictions have successfully required ULSD as a control measure. The EPA also noted in

the Proposal that reducing SO
2
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
2.5
and SO
2
emissions. However, we proposed to approve Alaska's analysis that found no NH
3
-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
2
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

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
2.5
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
2.5
Nonattainment Area that are currently using ULSD fuel, so it is self-evident that it is technologically and logistically feasible for some amount of this fuel to be available today. Based on the comments, there appear to be options available to minimize wintertime logistical and supply issues. To address supply concerns, Alaska did evaluate the potential for building local storage. Commenters have asserted that refining ULSD locally has economic challenges, but we have not received any economic data to support this assertion.

Comment:
As part of its comments, Alaska submitted a revised economic feasibility assessment for mandating ULSD for this source category. In total, Alaska made eight distinct revisions to the cost-effectiveness analysis that Alaska submitted for ULSD with the Fairbanks 189(d) Plan. For example, Alaska updated the fuel use impacts from switching from 2,000ppm sulfur fuel to ULSD and changes in price premium for ULSD. Considering a number of scenarios in Alaska's updated analysis, Alaska revised its BACM determination to state that ULSD cost-effectiveness was calculated to range from $58,252 per SO
2
ton removed under low baseline oil market prices to $73,816 per SO
2
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
2
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

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
2.5
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.

80

See
Gysel, et al. (2018). Particulate matter emissions and gaseous air toxic pollutants from commercial meat cooking operations.
Journal of Environmental Sciences,
65, 162-170; Yang, et al. (2021). Transient plasma-enhanced remediation of nanoscale particulate matter in restaurant smoke emissions via electrostatic precipitation.
Particuology
55, 43-47; New York City Department of Environmental Protection (February 2021). Certified Emission Control Devices for Commercial Under-Fired Char Broilers. Available at
https://www1.nyc.gov/assets/dep/downloads/pdf/air/approved-under-fired-technology.pdf;
Francis & R.E. Lipinski (2012). Control of Air Pollution from Restaurant Charbroilers.
Journal of the Air Pollution Control Association,
27:7, 643-647, available at:
https://doi.org/10.1080/00022470.1977.10470466.

81
Yang, et al. (2021). Transient plasma-enhanced remediation of nanoscale particulate matter in restaurant smoke emissions via electrostatic precipitation.
Particuology,
55, pages 43-47.

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
2.5
Nonattainment Area. According to the State, the only way to dispose of used oil in the nonattainment area is through burning and that limiting this disposal method would likely lead to dumping the used oil on land or water. While one factor the State may consider in demonstrating the technological infeasibility of a measure is collateral environmental impacts, the EPA stated in the Proposal that Alaska's evaluation is insufficient to demonstrate that prohibiting used oil burners is technologically infeasible. Notably, illegal dumping of used oil is prohibited under State and Federal laws.
82

Thus, the State and the EPA have a basis for preventing or mitigating any environmental impacts that may result from prohibiting used oil burning. The EPA indicated that requiring used oil generators to collect and ship used oil to a central disposal facility appears feasible. Because Alaska imposed no controls on this source category and did not adequately demonstrate that BACM for this emission source is technologically or economically infeasible, we proposed to disapprove Alaska's BACM evaluation and determination for use oil burners.

82
18 AAC 60.020; 33 U.S.C. 1321; 40 CFR 279.12.

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 det

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-26521. Public record. Not legal advice.