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Technical Support Document for EPA Action on Amendments to 

Alaska’s Air Quality Control Regulations in 18 AAC 50 

Table of Contents

I. Purpose 

II. Background of Submittal 

III. Editorial Changes 

IV. Requested Sections to be Incorporated by Reference into the SIP 

 A. Description of Submittal 

 B. Key Changes to 18 AAC 50 

C. Summary of Action 

 1. Provisions Approved by EPA and Incorporated by Reference 

 2. Provisions Approved by EPA into the SIP, but not Incorporated by Reference 

 3. Provisions Not Approved by EPA 

V. Requested Sections to be Removed from the SIP 

 A. Description of Submittal 

 B. Summary of Action 

VI. Geographic Scope of SIP Approval 
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I. Purpose

The purpose of this Technical Support Document (TSD) is to describe the substantive 

changes to Alaska’s Air Quality Control Regulations (i.e., 18 AAC 50) that have been 

submitted by the State of Alaska as revisions to its State Implementation Plan (SIP), 

document EPA’s evaluation of how these rules comply with EPA’s minimum 

requirements for SIPs, and explain the basis for EPA’s proposed action. Although the 

Alaska rules have been amended in several separate State rulemakings since the EPA last 

approved revisions to the Alaska SIP, this TSD will not be discussing each individual 

rule adoption. This TSD will describe how the current Alaska rules differ from the 

current SIP and why EPA believes the changes are approvable. 

Note that, in general, this TSD discusses only the provisions of Alaska’s air rules that 

have been submitted as revisions to the Alaska SIP. SIP rules and standards are 

designed to attain and maintain the National Ambient Air Quality Standards (NAAQS). 

Several provisions or parts of Alaska’s air rules have not been submitted to EPA for 

approval as a revision to the Alaska SIP because they are not designed to attain and 

maintain the NAAQS, but instead are designed to implement other Clean Air Act (CAA) 

programs, such as the title V air operating permits program, New Source Performance 

Standards (NSPS), and National Emissions Standards for Hazardous Air Pollutants 

(NESHAPs), or are designed to implement other provisions of State law. 

II. Background of Submittal

On May 6, 2005, the Commissioner of the Alaska Department of Environmental 

Conservation (ADEC) submitted a request to EPA to revise the Alaska SIP to include a 

completely revised version of the State of Alaska’s Air Quality Regulation in 18 AAC 

50. These changes became effective as a matter of State law on January 29, 2005. 

On June 30, 2006 the Commissioner of ADEC submitted a request to EPA to revise the 

Alaska SIP to include additional revisions to 18 AAC 50. The revised portions reflected 

in this submittal include adoption by reference of updated EPA rules and changes to the 

portable oil and gas drill rig regulations. These changes became effective as a matter of 

State law on December 3, 2005. Included in the submittal was a request that EPA 

exclude from consideration for SIP approval the portions of 18 AAC 50 affected by the 

June 24, 2005, United States Court of Appeals, District of Columbia Circuit decision 

which vacated portions of EPA’s new source review rules pertaining to clean units and 

pollution control projects. 

III. Editorial Changes

It is important to note that since the last EPA approval of the Alaska rules, nearly every 

section of the rules has been amended to some degree. Many of these amendments are 

editorial, renumberings, changes to citations for cross-referenced rules or statutes, 
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changes in terminology with no change in meaning (e.g., “air pollutant” instead of “air 

contaminant”), or grammatical corrections. 

This TSD will not be describing or discussing these numerous editorial changes, 

renumberings, and recodifications. EPA has reviewed them and finds them to be 

approvable as revisions to the Alaska SIP. 

IV. Requested Sections to be Incorporated by Reference into the SIP

A. Description of Submittal 

The Alaska Department of Environmental Quality (ADEC) submitted revisions to the 

regulations in 18 AAC 50. The revisions would replace most of the current construction 

and operating permit programs to satisfy revisions in Alaska’s underlying statute. 

The revised permitting program in Alaska consists of construction permits, title V 

operating permits, and minor permits. Construction permits include the major source 

permitting programs for prevention of significant deterioration (PSD), nonattainment 

areas, and hazardous air pollutants (HAPs). The revised regulations adopt the Federal 

construction and operating permit programs by reference to the extent practical. Where 

incorporation by reference of Federal law was not practical or was inconsistent with State 

law, ADEC included language directly in the State regulations or included a reference to 

the relevant State statute. 

Alaska’s revised minor permit program is for new or relocated minor sources and 

changes at both major and minor stationary sources that are not subject to Federal major 

source permitting requirements. It also applies to continued operation of stationary 

sources not subject to the title V permit program. The minor permit program includes a 

fast track permit issuance procedure for sources that qualify, and allows for development 

of general permits in the future for groups of sources with similar characteristics. Once 

issued, the general permits would allow an owner or operator to construct and operate a 

stationary source with little or no delay after submitting an application. 

B. Key Changes to 18 AAC 50

18 AAC 50.035 Documents, Procedures, and Methods Adopted by Reference 

ADEC revised paragraphs (a) and (b) in order to update the dates of their adoption by 

reference of Federal law, as well as State and Federal guidance documents. ADEC also 

added three new documents to their adoption by reference: 

 Meteorological Monitoring Guidance for Regulatory Modeling Applications; 

 Ambient Monitoring Guidelines for Prevention of Significant Deteriorations 

(PSD); and 

 ADEC’s Summary Prepared by the Department of Environmental Conservation 

of Coastal Area Boundaries Approved by the Coastal Policy Council (CPC) for 
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Coastal Resource Districts Excluded from the Portable Oil and Gas Operation 

Permit by Rule (18 AAC 50.390), as revised as of November 19, 2002. 

Subparagraph (b)(4) contains emission standards for 40 CFR part 63 sources. These 

types of provisions are inappropriate for SIP approval because they are not related to the 

criteria pollutants regulated under section 110 of the CAA. 

Paragraph (c) is a new provision which allows ADEC to use a test method other than one 

listed in 18 AAC 50.035(c) for a source-specific limit imposed in a permit. ADEC has 

clarified that this provision does not authorize ADEC to change a test method that is 

established in a SIP limit or a Federal standard. 

18 AAC 50.050 Incinerator Emission Standards and 18 AAC 50.055 Industrial 

Processes and Fuel-Burning Equipment 

ADEC revised the opacity standard for most sources from a three minute aggregate to a 

six minute average. The numeric value of the standard remains 20%. EPA has 

previously approved the use of a six minute average opacity standard for several source 

categories in Alaska in order to coincide with opacity limits in the Federal NSPS. In 

these latest revisions, ADEC has amended 18 AAC 50.050(2) and 18 AAC 50.055 (1)-(3) 

to similarly adopt a six minute average for more source categories. As explained in more 

detail in the justification provided by ADEC, ADEC made this change in the form of the 

standard to address a defense to enforcement raised by industry with the three minute 

aggregate exception. ADEC further explained that, although there may be some limited 

situations in which the revised standard could be less stringent than the previous standard 

(when there is a plume that is both high in opacity and intermittent), in the large majority 

of cases, the new standard is more stringent. In the one circumstance where ADEC 

expects that the three minute aggregate could be more stringent than the six minute 

average—soot blowing at coal fired power plants—ADEC has retained the opacity limit 

as an aggregate standard. Based on the information provided by ADEC, EPA concludes 

that changing the 20% opacity limit from a three minute exception to a six minute 

average in 18 AAC 50.050(2) and 18 AAC 50.055 (1)-(3) will continue to provide for 

attainment and maintenance of the NAAQS and other CAA standards and is thus 

approvable. 

18 AAC 50.100 Nonroad Engines 

ADEC added this provision in January 1997 to address a change in the 1990 Clean Air 

Act by making clear that actual and potential emissions from nonroad engines are not 

considered when determining whether a stationary source is subject to construction or 

operating permit programs in Alaska. 

Before 1990, an internal combustion engine that qualified as a nonroad engine would 

have been considered a temporary source or a portable stationary source, and thus a 

stationary source, under Federal law. In 1990, EPA revised the CAA ’s definition of 

stationary source (section 302(z)) to exclude emissions resulting directly from internal 

combustion engines for transportation purposes, nonroad engines, and nonroad vehicles. 
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Under subparagraph (2)(iii) in the definition of nonroad engine in 40 CFR 89.2, however, 

internal combustion engines that remain or will remain at a location for more than 12 

consecutive months or a shorter period of time for an engine located at a seasonal source 

do not meet the definition of nonroad engine and are thus considered to be stationary 

sources. By defining the term nonroad engine consistent with Federal law, ADEC’s 

adoption of 18 AAC 50.100 is consistent with Federal law for the treatment of nonroad 

engines under CAA permitting programs. 

Note that 40 CFR part 89, appendix A to subpart A – State Regulation of Nonroad 

Internal Combustion Engines, sets forth EPA’s interpretation of the CAA regarding the 

authority of States to regulate the use and operation of nonroad engines. 

18 AAC 50.215 Ambient Analysis Methods 

This provision was renumbered from 18 AAC 50.510(a) and revised to reflect a number 

of changes: 

 Paragraph (a)(3) was added to allow ADEC to approve alternative reference test 

methods for collecting ambient monitoring data. As discussed below, EPA is not 

approving this provision because it provides for unbounded director’s discretion.

 Paragraph (b)(2) was added to allow sources to exclude from ambient air quality 

analyses concentrations attributable to a temporary construction activity for a new 

or modified source and increases in concentrations attributable to new sources 

outside the United States over the concentrations attributable to existing sources 

included in the baseline concentration. This provision is consistent with 40 CFR 

51.166(f)(1)(iii) and (iv) and Section 163(c)(1)(C) and (D) of the CAA.

 Paragraph (c) allows substitution or modification of an air quality model, 

provided the source performs and submits a comparative analysis using a protocol 

developed using a specified procedure, obtains ADEC approval of the 

comparative protocol, and, in the case of air quality analysis required by 18 AAC 

50.306 (PSD), obtains EPA and ADEC approval of the substituted or modified 

model. 40 CFR 51.160(f), however, requires written approval from EPA for any 

substitution or modification of a model used for minor and major new source 

review, including major new source review in nonattainment areas (NNSR). 

ADEC has advised EPA that it erred in limiting the cross-reference in 18 AAC 

50.215(c)(3) to 18 AAC 50.306 (PSD) and that ADEC fully intended to require 

and intends to obtain EPA approval of a model substitution or modification for 

minor NSR (18 AAC 50.502-560) and major NNSR (18 AAC 50.311). ADEC 

has provided written assurance that ADEC will not allow a model substitution or 

modification if an ambient air quality analysis is required by minor NSR (18 AAC 

50.502-560) or major NNSR (18 AAC 50.311) without prior written approval 

from EPA and that it will correct this error in their next rulemaking. EPA is 

approving this provision on that basis.

 Paragraph (d) was revised to include the modeling Significant Impact Levels 

(SILs) that are set forth in 40 CFR 51.165(b). 

Except for subparagraph (a)(3), EPA is approving 18 AAC 50.215 as consistent with 40 

CFR 51.160(f) with the understanding, however, that ADEC will obtain EPA approval of 
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a model substitution or modification if an ambient air quality analysis is required by 

minor NSR, (18 AAC 50.502-560), major NNSR (18 AAC 50.311), or PSD (18 AAC 

50.306). 

 

18 AAC 50.225 Owner-Requested Limits 

ADEC proposes to include 18 AAC 50.225 in the SIP as a mechanism to establish 

source-specific Federally-enforceable limitations that restrict a source’s allowable 

emissions or potential to emit of air pollutants. 18 AAC 50.225 creates an approval 

process that is independent of the construction and operating permit programs. With this 

Federally-enforceable limitation in place, a source may be able to avoid some of the 

permit requirements or emission standards of 18 AAC 50. 

EPA has issued criteria for determining when emission limits contained in non-title V 

operating permits and similar mechanisms are Federally enforceable. See 54 FR 27274 

(June 28, 1989). The criteria include approval of the State mechanism into the SIP, a 

legal obligation that the permittee adhere to the limits and other requirements, that the 

limits and other requirements be at least as stringent as any other applicable SIP or 

Federally enforceable requirements, that the limits and other requirements be permanent, 

quantifiable, and otherwise enforceable as a practical matter, and that the limits and other 

requirements be issued subject to public participation. 

Owner-requested limits issued under 18 AAC 50.225 are issued only after notice and 

opportunity for public comment and are contained in a letter approval. Each approval 

issued to a source must include specific monitoring, recordkeeping, and reporting 

requirements to ensure compliance with the approved limitations and specifically requires 

a statement that the owner/operator agrees to be bound by the terms of the approval. The 

owner/operator can request that the limit be revoked but only after the owner/operator 

obtains any permits that were avoided by virtue of the owner-requested limit. EPA finds 

that 18 AAC 50.225 is consistent with EPA guidance regarding Federally-enforceable 

operating limits and that owner-requested limits issued pursuant to 18 AAC 50.225 are 

Federally-enforceable. 

18 AAC 50.230 Preapproved Emission Limits

ADEC proposes to include 18 AAC 50.230 [except subparagraph (d)] in the SIP as 

another mechanism to establish Federally-enforceable restrictions; this is an exclusionary 

rule that sets preapproved limits for NOx emissions from diesel engines. By operating 

under the Federally-enforceable limit to restrict their potential to emit of NOx, a source 

may be able to avoid some of the permit requirements of 18 AAC 50. 

EPA has recognized that, for certain classes of sources, such as fuel burning equipment, it 

is possible for States to establish enforceable emission limits that serve to limit potential 

to emit through exclusionary rules that apply to certain source categories. See

Memorandum from JD. Kent Berry, Acting Director, Air Quality Management Division, 

Office of Air Quality Planning and Standards (OAQPS) entitled “Guidance for State 

Rules for Optional Federally-Enforceable Emissions Limits Based on Volatile Organic 

Compound Use,” dated October 15, 1993; Memorandum from John Seitz, Director, 
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OAQPS entitled “Approaches to Creating Federally-Enforceable Emission Limits,” dated 

November 3, 1993; Memorandum from John Seitz, Director, OAQPS, entitled “Potential 

To Emit Guidance for Specific Source Categories,” dated April 14, 1998. To be 

approvable, an exclusionary rule must be technically justified, require that the owner or 

operator specifically apply for coverage under the rule, require the applicant to comply 

with the limit in the rule, and provide that a violation of the rule is a violation of the SIP. 

The preapproved limit for NOx emissions from diesel engines in ADEC’s exclusionary 

rule is based on the amount of diesel fuel used by a source during the year. A source can 

limit their NOx emissions by limiting the amount of diesel fuel used during the year. 

ADEC has demonstrated that a facility that limits their diesel fuel consumption to below 

330,900 gallons per year limits their potential to emit of NOx to below 100 tons per year. 

This figure was developed by ADEC using the NOx emission factors contained in AP-42 

Table 3.3-1. 

ADEC has established specific procedures that a source must follow to operate under a 

preapproved limit. To use one of the preapproved limits, a source must submit to ADEC 

a request to operate under a specific limit, and they must provide the information required 

for that limit. After this notification, each source must follow specific monitoring, 

recordkeeping, and reporting requirements to ensure compliance with the limit. EPA has 

determined that 18 AAC 50.230 is consistent with EPA guidance for exclusionary rules. 

18 AAC 50.240 Excess Emissions 

The excess emission provision was revised to reflect changes in terminology. The 

current SIP-approved version of 18 AAC 50.240 was approved on November 18, 1998. 

As discussed in more detail below, EPA is not approving the excess emission provision 

set forth in 18 AAC 50.240 because EPA does not believe it meets Clean Air Act 

requirements for such provisions. 

18 AAC 50.250 Procedures and Criteria for Revising Air Quality Classifications 

This provision sets forth PSD area reclassification procedures. 

This provision was renumbered from 18 AAC 50.600 and revised to require consultation 

with local governments as required by the Alaska Administrative Procedures Act (APA). 

Article 3 Major Stationary Source Permits 

The revisions repealed most of the existing permit regulations in 18 AAC 50, Article 3 

and replaced them with new regulations. 

ADEC had three primary goals in drafting their new major source permitting rules: 

1. Adopt the major permit programs that are the same as the Federal programs; 

2. Allow the use of Federal guidance and case law; and 

3. Allow interpretations of Federal guidance that make sense for Alaska. 

The newly revised regulations are intended to satisfy the first goal for major source 

permitting by generally adopting the Federal regulations by reference. ADEC revised 18 

AAC 50.040 Federal Standards Adopted by Reference to include the adoption of the 
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appropriate portions of 40 CFR parts 51, 52, 63, and 71. 18 AAC 50.302 – 326 explains 

how applicants and ADEC must use the adopted sections. ADEC intends to address the 

second and third goals during the implementation of the regulations. 

18 AAC 50.301 Permit Continuity and 18 AAC 50.302 Construction Permits 

These provisions were added to clarify permit continuity and to specifically require that 

owners and operators obtain a construction permit before beginning actual construction 

of a new major stationary source, a major modification, or a PAL major modification. 

These requirements are consistent with Federal law. 

18 AAC 50.306 Prevention of Significant Deterioration (PSD) Permits 

Overview of Major New Source Review Program

Parts C and D of title I of the CAA, 42 U.S.C. 7470-7515, set forth preconstruction 

review and permitting programs applicable to new and modified stationary sources of air 

pollutants regulated under the CAA, known as “major New Source Review” or “major 

NSR.” The major NSR programs of the CAA include a combination of air quality 

planning and air pollution control technology program requirements. States adopt major 

NSR programs as part of their SIP. 

Part C of title I of the CAA, 42 U.S.C. 7470-7492, is the “Prevention of Significant 

Deterioration” or “PSD” program, which applies in areas that meet the NAAQS—

“attainment” areas—as well as in areas for which there is insufficient information to 

determine whether the area meets the NAAQS—“unclassifiable” areas. Part D of title I 

of the CAA, 42 U.S.C. 7501-7515, is called the “Nonattainment New Source Review” or 

the “NNSR” program, which applies in areas that are not in attainment of the NAAQS-

“nonattainment areas.” EPA regulations implementing these programs are contained in 

40 CFR 51.165, 51.166, 52.21, 52.24, and part 51, appendix S. 

On December 31, 2002, EPA published final rule changes to the PSD and NNSR 

programs. 67 FR 80186. On November 7, 2003, EPA published a notice of final action on 

the reconsideration of the December 31, 2002 final rule changes. 68 FR 63021. In that 

November 7th final action, EPA added the definition of “replacement unit,” and clarified 

an issue regarding plantwide applicability limitations (PALs). The December 31, 2002 

and the November 7, 2003, final actions, are collectively referred to as the “2002 NSR 

Reform Rules.” 

The 2002 NSR Reform Rules made changes to five areas of the NSR programs. In 

summary, the 2002 Rules: (1) provide a new method for determining baseline actual 

emissions; (2) adopt an actual-to-projected-actual methodology for determining whether 

a major modification has occurred; (3) allow major stationary sources to comply with 

plant-wide applicability limits to avoid having a significant emissions increase that 

triggers the requirements of the major NSR program; (4) provide a new applicability 

provision for emissions units that are designated clean units; and (5) exclude pollution 
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control projects from the definition of “physical change or change in the method of 

operation.” 

After the 2002 NSR Reform Rules were finalized and effective (March 3, 2003), various 

petitioners challenged numerous aspects of the 2002 NSR Reform Rules, along with 

portions of EPA's 1980 NSR Rules (45 FR 5276, August 7, 1980). On June 24, 2005, the 

DC Circuit Court issued a decision on the challenges to the 2002 NSR Reform Rules. See 

New York v. United States, 413 F.3d 3 (DC Cir. 2005). In summary, the DC Circuit Court 

vacated portions of the 2002 NSR Reform Rules pertaining to clean units and pollution 

control projects, remanded a portion of the rules regarding recordkeeping (40 CFR 

52.21(r)(6) and 40 CFR 51.166(r)(6)), and either upheld or did not comment on the other 

provisions included as part of the 2002 NSR Reform Rules. EPA has not yet responded to 

the Court's remand regarding the recordkeeping provisions. 

 

The 2002 NSR Reform Rules require that State agencies adopt and submit revisions to 

their SIP permitting programs implementing the minimum program elements of the 2002 

NSR Reform Rules no later than January 2, 2006 

 

Alaska’s PSD Submittal

Alaska's PSD program was originally approved into the SIP by EPA on July 5, 1983, and 

has been revised several times. Newly revised 18 AAC 50.040(h) and 18 AAC 50.306 

implement ADEC’s current PSD program. ADEC revised their PSD rules to essentially 

incorporate by reference the PSD rules in 40 CFR 52.21, including the applicable 

provisions of the 2002 NSR Reform Rules, with a few exceptions. In general, ADEC 

chose to incorporate by reference the Federal PSD rules in 40 CFR 52.21 rather than the 

comparable provisions in 40 CFR 51.166, which set forth what is required in a State’s 

plan, because 40 CFR 52.21 is written to directly state the requirements of an owner or 

operator. 

In some cases, ADEC did adopt provisions of 40 CFR 51.166 rather than the comparable 

provisions of 40 CFR 52.21 because 40 CFR 51.166 was a better fit for a SIP-approved 

PSD program. For example, ADEC adopted 51.166(q)(2) to describe the public 

participation procedures for PSD permits. The comparable provision in 40 CFR 52.21 

refers to a large set of Federal administrative procedures in 40 CFR 124, which applies to 

water and other permits, and would be very cumbersome to try to adopt for Alaska’s 

purpose. ADEC also adopted 40 CFR 51.166(f), Exclusions from Increment 

Consumption, because these exclusions are not provided by 40 CFR 52.21, but they are 

allowed in a SIP-approved PSD program. 

ADEC also made regulatory changes to clarify how certain provisions of 40 CFR 52.21 

would be implemented by ADEC. For example, ADEC added text to 18 AAC 50.306 to 

clarify the term “administrator” should be read to mean the department in certain 

instances. ADEC also added provisions for permit content with respect to monitoring, 

recordkeeping, or reporting requirements. The language is similar to that in ADEC’s 

existing construction permit program and is intended to allow ADEC to put in conditions 
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when they are necessary so that the applicant and ADEC can know whether operations 

comply with standards. 

ADEC has specifically asked EPA not to approve into the SIP the portions of the 2002 

NSR Reform Rules that were recently vacated by the DC Circuit Court relating to the 

clean unit provisions and the pollution control projects exclusion. 

EPA is approving 18 AAC 50.040(h) and 18 AAC 50.306 as meeting the requirements 

for SIP-approved PSD programs in 40 CFR 51.166. ADEC’s revised rules address 

baseline actual emissions, actual-to projected actual applicability tests, and PALs and 

other currently applicable provisions of the 2002 NSR Reform Rules. ADEC has not 

submitted for SIP approval portions of the PSD rules that were recently vacated by the 

DC Circuit Court, including the clean unit provisions and the pollution control projects 

exclusion. As noted earlier, EPA has not yet responded to the DC Circuit Court's remand 

of the recordkeeping provisions of EPA's 2002 NSR Reform Rules. Alaska's rule 

contains recordkeeping requirements that are essentially the same as the remanded 

Federal rule. While final action by EPA with regard to the remand may require EPA to 

take further action on this portion of Alaska's rules, at this time, the rules are the same as 

existing Federal law. 

18 AAC 50.311 Nonattainment Area Major Stationary Source Permits

Alaska's major NNSR program was originally approved into the SIP by EPA on July 5, 

1983, and has been revised several times. Newly revised 18 AAC 40.040(i) and 18 AAC 

50.311 implement the major NNSR program in Alaska. ADEC revised their major 

NNSR program to essentially incorporate by reference the provisions set forth in 40 CFR 

51.165, including the 2002 NSR Reform Rules that were not vacated by the Court. 

Portions of 40 CFR 51.165 simply refers to relevant provisions in sections 172 and 173 of 

the CAA, including offsetting emissions and lowest achievable emission rates. Rather 

than adopting the language in the CAA statute by reference, 18 AAC 50.311 includes the 

text of the relevant statutory language. 

Similar to the PSD program in 18 AAC 50.306, ADEC also added provisions for permit 

content with respect to monitoring, recordkeeping, or reporting requirements. The 

language is similar to that in ADEC’s existing construction permit program and is 

intended to allow ADEC to put in conditions when they are necessary so that the 

applicant and ADEC can know whether operations comply with standards. 

ADEC’s major NNSR rule does not incorporate the portions of the Federal rules that 

were recently vacated by the DC Circuit Court relating to the clean unit provisions and 

the pollution control projects exclusion. 

EPA is approving 18 AAC 40.040(i) and 18 AAC 50.311 as meeting the requirements for 

SIP-approved major NNSR programs in 40 CFR 51.165 and 40 CFR part 51, appendix S. 

ADEC’s revised rules address baseline actual emissions, actual-to projected actual 

applicability tests, and PALs and other currently applicable provisions of the 2002 NSR 

Reform Rules. ADEC specifically did not submit portions of the NNSR rules that were 
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recently vacated by the DC Circuit Court, including the clean unit provisions and the 

pollution control projects exclusion. As noted earlier, EPA has not yet responded to the 

DC Circuit Court's remand of the recordkeeping provisions of EPA's 2002 NSR Reform 

Rules. Alaska's rule contains recordkeeping requirements that are essentially the same as 

the remanded Federal rule. While final action by EPA with regard to the remand may 

require EPA to take further action on this portion of Alaska's rules, at this time, the rules 

are the same as existing Federal law. 

18 AAC 50.345 Construction and Operating Permits: Standard Permit Conditions 

This new provision sets forth Standard Permit Conditions that ADEC will include in 

operating permits and may include in construction permits. Paragraphs (a), (c)(1), (c)(2), 

and (d) through (o) were submitted by Alaska for inclusion into the SIP. Paragraphs (b) 

and (c)(3) were not submitted because they apply to title V permits and do not relate to 

the SIP. 

 

Paragraph (a) contains general provisions regarding the use of the standard conditions in 

title V and construction permits. Paragraphs (c) (1) and (2) are standard permit 

conditions requiring compliance with the terms of the permit and specify the 

consequences of violating the permit. Paragraphs (d) through (j) are other standard 

permit conditions that the Clean Air Act requires to be included in title V permits, such as 

provisions regarding inspections, severability, certification of documents, and responding 

to requests for information. Such permit terms are equally appropriate for inclusion in 

construction permits. Paragraphs (k) through (o) are standard permit conditions drafted 

by ADEC relating to source testing, such as conducting other source tests as requested by 

ADEC (k), extending source test deadlines established by ADEC (l), providing source 

test plans for ADEC’s review (m), giving prior notice of source tests (n), and submitting 

final source test reports to ADEC (o). EPA believes provisions (k) and (m) through (o) 

are appropriate for inclusion in construction permits, provided ADEC makes clear in the 

construction permit that they are in addition to any source testing requirements in other 

applicable requirements, such as NSPS or NESHAPS. As explained in more detail 

below, EPA is not approving subparagraph (l) because, although it is appropriately 

limited to source test deadlines established by ADEC, it would allow permit terms to be 

changed without a permit revision. 

18 AAC 50.346 Construction and Operating Permits: Other Permit Conditions 

This new provision contains additional Standard Permit Conditions that ADEC is 

required to include in operating permits and, in some cases, construction permits unless 

ADEC determines that emission unit-specific or stationary source-specific conditions 

more adequately meet the requirements of 18 AAC 50 or that no comparable condition is 

appropriate for the stationary source or emission unit. 

Only paragraph (a) was submitted for inclusion into the SIP. This paragraph incorporates 

Standard Operating Permit Condition II, which contains standard monitoring conditions 

for 18 AAC 50.110 Air Pollution Prohibited, a rule prohibiting emissions detrimental to 

human health or welfare, animal or plant life, or property, or which would unreasonably 

interfere with the enjoyment of life or property. As discussed in more detail below, EPA 
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is not approving 18 AAC 50.346(a) into the SIP because it only requires corrective action 

after the permittee or ADEC determines a violation has occurred and thus cannot be 

construed as monitoring to assure compliance. 

Paragraphs (b) and (c) were not submitted for EPA approval because they apply to title V 

permits and are not SIP-related. 

Article 5 Minor Permits 

18 AAC 50.502 Minor Permits for Air Quality Protection 

EPA regulations require all SIPs to contain legally enforceable procedures to ensure that 

construction or modification of a stationary source will not cause a violation of a NAAQS 

or any applicable portions of the control strategy. 40 CFR 51.160(a). For major 

stationary sources and major modifications to major stationary sources, the PSD and 

major NNSR programs satisfy this requirement. States are also required to have new 

source review programs for minor sources meeting the requirements of 40 CFR 51.160-

51.164. 

Alaska's minor NSR program was originally approved into the SIP by EPA on July 5, 

1983, and has been revised several times. In the SIP submission before EPA, ADEC has 

substantially revised its minor NSR program. Under ADEC’s revised program, ADEC 

has expanded the categories of minor sources that must obtain a permit prior to 

construction or modification. 

18 AAC 50.502 specifies source categories and size thresholds that need a permit. 

The following stationary sources—regardless of emission rate—must obtain a minor 

permit before construction or relocation and, if the source is not required to obtain a title 

V permit, before operation: 

 An asphalt plant with a rated capacity of at least five tons per hour 

 A thermal soil remediation unit with a rated capacity of at least five tons per hour 

 A rock crusher with a rated capacity of at least five tons per hour 

 One or more incinerators with a cumulative rated capacity of 1000 pounds or 

more per hour 

 A coal preparation plant 

 A Port of Anchorage stationary source 

In addition, a minor permit is required for construction of a new stationary source with a 

potential to emit greater than the following size thresholds: 

 15 TPY PM-10 

 40 TPY of nitrogen oxides (NOx) 

 40 TPY of sulfur dioxides (SOx) 

 0.6 TPY of lead 

 100 TPY of carbon monoxide (CO) within 10 kilometers of a nonattainment area 
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Other provisions govern when a source needs a minor permit for construction or 

relocation of a Portable Oil and Gas Operation or an emission unit with a rated capacity 

of 10 million BTU or more per hour in a sulfur dioxide special protection area. 

Finally, ADEC has established other thresholds for determining when a source needs a 

minor permit before a modification. A minor permit is required prior to a modification if 

(1) the stationary source already has a potential to emit of more than the emission 

thresholds for construction of new minor sources requiring permits and (2) the 

modification would cause an increase greater than 10 tpy of PM-10, 10 tpy of NOx, 10 

tpy of SOx, or 100 tpy of CO. In applying the modification provisions, the owner or 

operator may choose either a potential emissions or actual emission test: 

 Potential to Emit test: Compare potential to emit before and after the change 

 Actual Emissions test: Compare baseline actual emissions to projected actual 

emission. Both of these terms are defined in 18 AAC 50.502(h). The owner or 

operator needs a permit if the emissions increase is greater than 10 tpy, and the 

total changes for the pollutant over the contemporaneous period are also greater 

than 10 tpy. See the definition of net emissions increase in 18 AAC 50.502(h). 

However, the ability to choose which test to use is limited in two respects. First, there is 

no hybrid test. The simple wording of the regulation requires the use of one test or the 

other. Second, if there is a new emissions unit to be installed as part of the project, the 

owner or operator must use the potential to emit test. This is because the calculation of 

the actual emissions increase depends on the definition of “projected actual emissions,” 

which is defined in part as “. . . the maximum annual rate, in tons per year, at which an 

existing emissions unit is projected to emit . . . ” 18 AAC 50.502(h)(4) [emphasis added]. 

Therefore, an actual emissions increase cannot be calculated for a modification that 

includes a new emissions unit. Because most projects subject to minor permitting involve 

the addition of at least once new emissions unit, most projects will require the use of the 

potential to emit test. This is somewhat comparable to the Federal PSD program, where 

the actual-to-projected actual test is not used for new emissions units. It differs from the 

Federal PSD program, however, because, unlike PSD, ADEC’s minor NSR program does 

not allow the use of a hybrid test. 

If using these applicability criteria, the project would be subject to minor permitting 

under 18 AAC 50.502, the owner or operator may still avoid a permit by obtaining an 

enforceable limit on potential to emit. This could be done through either a PAEL under 

18 AAC 50.230, an owner-requested limit under 18 AAC 50.225, an owner-requested 

limit under 18 AAC 50.508(5), or a revision to an avoidance limit under 18 AAC 

50.508(6). 

Note that several provisions in ADEC’s revised minor NSR program were intended to 

implement provisions of the 2002 NSR Reform Rule, including provisions for clean 

units, pollution control projects, and plantwide applicability limits. ADEC has asked 

EPA to exclude from consideration for SIP approval those portions of its minor NSR 

rules affected by the June 24, 2005, Court decision which vacated the portions of the 
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2002 NSR Reform Rule pertaining to clean units and pollution control projects. 

Accordingly, as discussed in more detail below, EPA is not approving provisions of 

ADEC’s minor NSR rules that relate to clean units and pollution control projects, more 

specifically paragraphs (g)(1) and (g)(2).

18 AAC 50.508 Minor Permits Requested by the Owner or Operator 

This provision allows ADEC to issue a minor permit if requested by the owner or 

operator to: 

 Establish a plantwide applicability limit (PAL), a new feature under the 2002 

NSR Reform Rule. 

 Establish a limit to provide offsetting emissions to allow construction of a major 

source, major modification, or major PAL modification in a nonattainment area. 

 Establish an owner requested limit to allow a stationary source to avoid a 

classification as a major or minor source. 

 Revise or rescind existing permit conditions in a title I permit 

Again, several provisions in this section were intended to implement provisions of the 

2002 NSR Reform Rule, including provisions for clean units and pollution control 

projects and ADEC has asked EPA to exclude these provisions from consideration for 

SIP approval. Accordingly, as discussed in more detail below, EPA is not approving 

paragraphs (1) and (2) of this section.

18 AAC 50.509 Construction of a Pollution Control Project 

This provision relates to the pollution control projects exclusion that was recently vacated 

by the DC Circuit Court. ADEC has requested that EPA exclude this section from 

consideration for SIP approval and EPA is therefore not approving it. 

18 AAC 50.540 Minor Permit: Application 

This provision contains application requirements for each classification of minor permits. 

The section identifies what an applicant must submit by citing a Federal regulation where 

the required information is listed, describing what the applicant must show, or citing an 

applicable form. The forms specify the required information. The purpose of each form 

is to allow ADEC to make a determination considering the approval criteria given in the 

permit review and issuance section (18 AAC 50.542). 

Again, ADEC has asked EPA to exclude provisions relating to clean units and pollution 

control projects from consideration for SIP approval. Accordingly, as discussed in more 

detail below, EPA is not approving paragraphs (f) and (g) of this section. 

18 AAC 50.542 Minor Permit: Review and Issuance 

This provision has two administrative procedures for issuing source-specific minor 

permits – a fast track procedure and a procedure that has a full 30-day public comment 

period. 
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For both procedures, ADEC’s revised rules change the method of public notice. Instead 

of publishing the notice in a newspaper, ADEC now posts the notice on the State “Online 

Public Notice System” website. ADEC still sends the notice by mail or email to anyone 

who requests to be on the State’s distribution list. EPA regulations require that public 

notice of minor NSR permits be given by prominent advertisement in the area affected by 

the source, and do not require that public notice be given in a newspaper. See 40 CFR 

51.161(b)(3). 

Under the fast track procedures of 18 AAC 50.542(b), ADEC gives the public 15 days to 

request a 30-day public comment period for certain types of permits (i.e., 18 AAC 

50.502) that meet specific requirements as defined in the rule. The department issues the 

permit within 30 days of receiving a complete application if: 

 No one requested a public comment period; and 

 The department did not find that the project would be predicted to violate an 

ambient air quality standard. 

Other types of permits specified in the rule have a 30-day public comment period, even if 

no one requests one. ADEC will provide a 30-day public comment period regardless of 

whether one was requested if: 

 The stationary source is in a location that is not eligible for the fast track 

procedure as set forth in 18 AAC 50.542(a)(1); 

 The applicant does not provide an adequate analysis for the ambient air quality 

demonstration; 

 The permit is issued under 18 AAC 50.508, Minor Permits Requested by the 

Owner or Operator. 

In addition, as discussed above, ADEC will provide a 30-day public comment period 

if a person requests a public comment period under 18 AAC 50.542(b)(1), Fast-Track 

Procedures.

This section also contains criteria for approval and denial of minor permits. Importantly, 

ADEC is required to deny an application for a minor permit if ADEC determines 

construction or operation of the source would violate an emission limit in ADEC’s rules 

or a NAAQS. The rule contains additional criteria for approval and denial of minor 

permits for sources in certain locations (e.g., Port of Anchorage) and certain types of 

minor permits (e.g., PAL permit, owner requested limit). 

Subparagraph (b)(2) allows ADEC to require the owner/operator to submit their permit 

applications online. ADEC did not submit the appropriate documentation for us to 

evaluate the approvability of Alaska’s Online System with respect to EPA’s Cross-Media 

Electronic Reporting Rule (CROMERR). See 70 FR 59848 (October 13, 2005). 

Therefore, EPA is not approving paragraph (b)(2) to allow for electronic submissions. 

Again, ADEC has asked EPA to exclude provisions relating to clean units and pollution 

control projects from consideration for SIP approval. Accordingly, as discussed in more 
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detail below, EPA is not approving paragraphs (f)(4), (f)(5), and—except as related to 

PALs—(g)(1) of this section. 

18 AAC 50.544 Minor Permits: Content 

This provision sets forth what a minor permit must contain, including: 

 Information identifying the permittee; 

 A requirement for payment of fees; 

 Conditions required under 18 AAC 50.201, Ambient Air Quality Investigation; 

 Owner requested limits issued under 18 AAC 50.225; 

 Conditions necessary to ensure compliance with any requirement in Alaska’s 

statute or regulations for stationary sources classified under 18 AAC 50.502; 

 Conditions necessary to ensure compliance with the NAAQS and certain other 

sections for stationary sources requiring minor permits due to the amount of their 

emissions; 

 Content required by Federal law or regulation for PALs; 

 For offsets, conditions to ensure permanent actual emission reductions; and 

 Conditions required for owner requested limits and requests to revise a permit.

Paragraph (d) sets forth a new condition requiring an owner or operator to provide a 

periodic affirmation as to whether their original application and minor permit accurately 

describe their stationary source and whether any changes may have been made that would 

trigger the requirement for a new permit. Stationary sources do not need a minor permit 

affirmation if they are subject to title V. 

Again, ADEC has asked EPA to exclude provisions relating to clean units and pollution 

control projects from consideration for SIP approval. Accordingly, as discussed in more 

detail below, EPA is not approving paragraph (e) of this section. 

18 AAC 50.546 Minor Permits: Revisions 

This provision sets forth the procedures for revising minor permits. 

In general, the procedures for revising a minor permit are the same procedures that apply 

to initial issuance of a minor permit. 

Paragraph (b), however, gives ADEC discretion to revise “non-substantive” elements of a 

minor permit without further administrative procedures. As discussed in more detail 

below, EPA is not approving paragraph (b) because it does not adequately define the 

class of revisions that can be made without public review. 

EPA has reviewed ADEC’s provisions for the issuance of minor permits and finds them 

to be consistent with the requirements for minor NSR permits in 40 CFR 50.160-50.164. 

18 AAC 50.560 General Minor Permits

This provision authorizes ADEC to issue general minor permits to allow the construction 

or operation of a category of stationary sources that involve the same or similar types of 

operation, involve the same type of emissions, and are subject to similar air quality 
January 26, 2007 

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control requirements. In issuing a general minor permit, ADEC will evaluate what 

permit conditions are necessary to assure compliance with each ambient standard or 

control strategy for that category of stationary source. An owner or operator would then 

have the choice of obtaining a source-specific permit or applying for coverage under the 

general minor permit. See 18 AAC 50.502(d). A general minor permit is subject to 

public notice and comment when initially issued by ADEC, but not when an individual 

source applies for coverage. The rule authorizes ADEC to issue general minor permits 

that require a source applying for coverage to receive specific approval from ADEC 

before being authorized to construct or operate under the general permit, as well as 

general minor permits that authorize a source to construct or operate upon ADEC’s 

receipt of an application for coverage. The general minor permit will specify whether the 

source must wait for ADEC approval before constructing or operating under the general 

minor permit. 

ADEC will issue an application or notification form with each general minor permit, 

which will specify the information an applicant must provide to be covered under the 

general minor permit. This information must include identifying information, 

information necessary to show the stationary source qualifies for coverage under the 

general permit, identification of all equipment covered by the general minor permit, and a 

certification by the applicant that the stationary source is capable of complying with all 

permit requirements. 

The rule also specifies the content of general minor permits. Importantly, general minor 

permits must meet the same permit content requirements of minor permits under 18 AAC 

50.544, including terms and conditions to ensure that stationary sources constructing and 

operating under the general minor permit will not cause or contribute to a violation of the 

NAAQS. General minor permits can accommodate portable sources, but permittees must 

notify ADEC of any change to a location not identified in the permit application. 

EPA has reviewed ADEC’s provisions for the issuance of general minor permits and 

finds them to be consistent with the requirements for minor NSR permits in 40 CFR 

50.160-50.164. 

18 AAC 50.990 Definitions 

The definitions in 18 AAC 50.990 were revised in order to essentially incorporate by 

reference applicable definitions that are set forth in Federal rules. Where Alaska statutes 

define a term used in Federal rules by incorporating the Federal rule by reference, the 

definition of that term in 18 AAC 50.990 incorporates by reference the term in the Alaska 

statute, which in turn incorporates by reference the Federal definition. 

EPA has reviewed the Alaska definitions and found them to be consistent with the 2002 

NSR Reform Rules and other Federal requirements set forth in 40 CFR 51, subpart I. 

Again, ADEC has asked EPA to exclude provisions relating to clean units and pollution 

control projects from consideration for SIP approval. Accordingly, as discussed in more 
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detail below, EPA is not approving definitions in 18 AAC 50.990 that relate to clean 

units and pollution control projects. 

C. Summary of Action 

1. Provisions Approved by EPA and Incorporated by Reference 

As described in more detail above, EPA has determined that the following sections are 

consistent with the requirements of title I of the Clean Air Act and proposes to approve 

them as part of the SIP and incorporate them by reference into Federal law: 

18 AAC 50.080 Ice Fog Standards; State effective January 18, 1997; 

18 AAC 50.025 Visibility and Other Special Protection Areas; 18 AAC 50.070 Marine 

Vessel Visible Emission Standards, State effective June 21, 1998; 

18 AAC 50.050 Incinerator Emission Standards, State effective May 3, 2002; 

18 AAC 50.005 Purpose of Chapter; 18 AAC 50.010 Ambient Air Quality Standards 

[except (7) and (8)]; 18 AAC 50.015 Air Quality Designations, Classifications, and 

Control Regions; 18 AAC 50.020 Baseline Dates and Maximum Allowable Increases, 18 

AAC 50.045 Prohibitions; 18 AAC 50.055 Industrial Processes and Fuel-Burning 

Equipment [except (d)(2)(B)]; 18 AAC 50.100 Nonroad Engines; 18 AAC 50.200 

Information Requests; 18 AAC 50.201 Ambient Air Quality Investigation; 18 AAC 

50.205 Certification; 18 AAC 50.215 Ambient Air Quality Analysis Methods [except 

(a)(3)]; 18 AAC 50.220 Enforceable Test Methods [except (c)(2)]; 18 AAC 50.245 Air 

Episodes and Advisories; 18 AAC 50.250 Procedures and Criteria for Revising Air 

Quality Classifications; 18 AAC 50.301 Permit Continuity; 18 AAC 50.302 Construction 

Permits; 18 AAC 50.306 Prevention of Significant Deterioration (PSD) Permits [except 

(b)(2) and (b)(3)]; 18 AAC 50.311 Nonattainment Area Major Stationary Source Permits;

18 AAC 50.345 Construction and Operating Permits: Standard Permit Conditions [except 

(b), (c)(3), and (l)]; 18 AAC 50.508 Minor Permits Requested by the Owner or Operator 

[except (1) and (2)]; 18 AAC 50.546 Minor Permits: Revisions [except (b)]; 18 AAC 

50.560 General Minor Permits; 18 AAC 50.900 Small Business, State effective October 

1, 2004; 

18 AAC 50.542 Minor Permit: Review and Issuance [except (b)(2), (f)(4), (f)(5), and 

(g)(1) but only with respect to clean units and pollution control projects], State effective 

December 1, 2004; 

18 AAC 50.225 Owner-Requested Limits; 18 AAC 50.230 Preapproved Emission Limits 

[except (d)]; 18 AAC 50.544 Minor Permits: Content [except (e)], State effective January 

29, 2005; 

18 AAC 50.035 Documents, Procedures, and Methods Adopted By Reference [except 

(b)(4)]; 18 AAC 50.040 Federal Standards Adopted by Reference [except (a), (b), (c), (d), 
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(e), (g), (h)(17), (h)(18), (h)(19), (i)(7), (i)(8), (i)(9), and (j)]; 18 AAC 50.502 Minor 

Permits for Air Quality Protection [except (g)(1) and (g)(2)]; 18 AAC 50.540 Minor 

Permit: Application [except (f) and (g)];18 AAC 50.990 Definitions [except (21), and 

(77)], State effective December 3, 2005.

2. Provisions Approved by EPA into the SIP, but not Incorporated by Reference 

EPA is proposing to approve the following section as part of the SIP, but not to 

incorporate it by reference into Federal law: 18 AAC 50.030 State Air Quality Control 

Plan, State effective October 1, 2004. 

This provision does not regulate air emissions, but rather, describes general authorities 

such as procedural and enforcement authorities. Incorporation by reference of such 

provisions into Federal law is unnecessary and could potentially conflict with EPA’s 

independent authorities. Therefore, EPA is proposing to not incorporate by reference 18 

AAC 50.030 into the SIP and to remove the previous version of this regulation from 

Alaska’s incorporation by reference section of the Alaska SIP, as follows: 18 AAC 

50.030 State Air Quality Control Plan, State effective September 21, 2001. 

3. Provisions Not Approved by EPA 

EPA is proposing not to approve certain provisions of ADEC’s regulations, either 

because EPA believes such provisions are inconsistent with the requirements of the CAA 

or because ADEC has requested EPA not to approve such provisions into the SIP. 

18 AAC 50.010 Ambient Air Quality Standards, paragraphs (7) and (8). These contain 

emissions standards for reduced sulfur compounds and ammonia. These types of 

provisions are inappropriate for SIP approval because they are not related to the criteria 

pollutants regulated under section 110 of the CAA. 

18 AAC 50.035 Documents, Procedures, and Methods Adopted by Reference, paragraph 

(b)(4). Paragraph (b)(4) contains emissions standards for 40 CFR part 63 sources. These 

types of provisions are inappropriate for SIP approval because they are not related to the 

criteria pollutants regulated under section 110 of the CAA. 

18 AAC 50.040 Federal Standards Adopted by Reference, paragraphs (a), (b), (c), (d), 

(e), (g), (h)(17), (h)(18), (h)(19), (i)(7), (i)(8), (i)(9), and (j). These provisions contain 

emission standards for 40 CFR parts 60, 61, 62, 63, 70, and 71 sources. These types of 

provisions are inappropriate for SIP approval because they are not related to the criteria 

pollutants regulated under section 110 of the CAA. 

In addition, at ADEC’s request, we are not incorporating or approving into the SIP 

portions of the Federal 2002 Major NSR Reform Rules that were recently vacated by the 

DC Circuit Court relating to the clean unit provisions and the pollution control projects 

exclusion, more specifically paragraphs (h)(17), (h)(18), (h)(19), (i)(7), (i)(8), and (i)(9) 

of this section. 
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18 AAC 50.055 Industrial Processes and Fuel-Burning Equipment, paragraph (d)(2)(B). 

This paragraph contains emissions standards for hydrogen sulfide. These types of 

provisions are inappropriate for SIP approval because they are not related to the criteria 

pollutants regulated under section 110 of the CAA. 

18 AAC 50.215 Ambient Air Quality Analysis Methods, paragraph (a)(3). 

This section sets forth requirements for air quality monitoring and analysis. Paragraphs 

(a)(1) and (a)(2) specify the procedures for obtaining air monitoring data, but paragraph 

(a)(3) authorizes ADEC to approve any alternative method that ADEC determines is 

“representative, accurate, verifiable, capable of replication.” In essence, this paragraph 

allows ADEC to modify requirements relied on to attain and maintain the NAAQS 

without going through a SIP revision. As such, it is not approvable. 

Section 110(i) of the CAA specifically precludes States from changing the requirements 

of the SIP except through SIP revisions approved by EPA. SIP revisions will be 

approved by EPA only if they meet all requirements of section 110 of the CAA and the 

implementing regulations at 40 CFR part 51. See CAA section 110(l); 40 CFR 51.104. 

Section 51.104(d) specifically states that in order for a variance to be considered for 

approval as a SIP revision, the State must submit it in accordance with the requirements 

of 40 CFR 51.104, which includes the public notice, comment and hearing provisions of 

40 CFR 51.102. 

The SIP revision requirements may be satisfied if the director’s discretion is constrained 

by sufficiently specific, objective, and replicable criteria to determine if the alternative 

method will, in fact, be at least as effective as the required methods in terms of emission 

rates and ambient impacts. In this case, although the rule states that the alternative must 

be “representative, accurate, verifiable, capable of replication,” the rule does not contain 

procedures for ensuring that is the case. Therefore, it is not appropriate for EPA to 

approve this provision into the SIP. 

18 AAC 50.220 Enforceable Test Methods, paragraph (c)(2). Paragraph 50.220(c)(1) 

specifies reference test methods to be used in source tests to determine compliance with 

applicable requirements. Paragraph (c)(2) authorizes ADEC to approve the use of an 

alternative method using the procedure specified in 40 CFR part 63, appendix A, method 

301. In essence, paragraph (c)(2) authorizes ADEC to issue variances from regulatory 

requirements, including SIP, NSPS, and NESHAP requirements. EPA approved this 

provision into the SIP on November 18, 1998 [63 FR 63983]. ADEC made minor 

changes to 18 AAC 50.220 and has submitted the entire provision for inclusion in the 

SIP. 

EPA believes that it erred when it approved this subparagraph as part of the SIP. As an 

initial matter, ADEC does not have authority to approve alternatives to NSPS and 

NESHAP standards except to the extent EPA has delegated that authority to ADEC. 

EPA does not delegate to States authority to approve “major changes” to test methods for 

NSPS and NESHAP standards. In addition, as discussed above, section 110(i) of the 
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CAA specifically precludes States from changing the requirements of the SIP except 

through SIP revisions approved by EPA, and SIP revisions will be approved by EPA only 

if they meet all requirements of section 110 of the CAA and the implementing regulations 

at 40 CFR part 51. See CAA section 110(l); 40 CFR 51.104. Section 51.104(d) 

specifically states that in order for a variance to be considered for approval as a SIP 

revision, the State must submit it in accordance with the requirements of 40 CFR 51.104, 

which includes the public notice, comment and hearing provisions of 40 CFR 51.102. 

Paragraph (c)(2) does not meet all of the requirements of section 110 of the CAA, such as 

ensuring attainment and maintenance of the NAAQS. As discussed above, SIP revision 

requirements may be satisfied if the director’s discretion is constrained by sufficiently 

specific, objective, and replicable criteria to determine if the alternative method will, in 

fact, be at least as effective as the required methods in terms of emission rates and 

ambient impacts. In this case, although paragraph (c)(2) requires that ADEC use the 

procedure in 40 CFR part 63, appendix A, method 301 in evaluating whether to approve 

an alternative method, EPA does not believe that the procedures in method 301 are 

sufficiently replicable so as to adequately constrain ADEC’s discretion. 

In addition, there is nothing in this provision that would require alternatives to test 

methods required in a permit to be approved through appropriate revision procedures. 

For these reasons, it is not appropriate for EPA to approve this provision into the SIP. 

Section 110(k)(6) of the CAA authorizes EPA, upon a determination that EPA's action 

approving, disapproving or promulgating any State implementation plan or plan revision 

(or any part thereof) was in error, to revise such action as appropriate in the same manner 

as the approval, disapproval or promulgation. In making such a correction, EPA must 

provide such determination and the basis therefore to the State and the public. EPA is by 

this proposal notifying ADEC and the public that EPA is removing 18 AAC 50.220(c)(2) 

from the SIP and from incorporation by reference into Federal law. 

It is important to emphasize that if ADEC approves the use of alternative methods in 

reliance on 18 AAC 50.220(c)(2) as an alternative to an ADEC regulation or permit that 

has been approved as part of the SIP, EPA is not precluded from enforcing the Federallyapproved SIP limit against the source. The granting of an alternative method of 

compliance by ADEC to a SIP requirement does not change the Federally-enforceable 

SIP requirement for that source unless and until the alternative has been approved by 

EPA. 

18 AAC 50.240 Excess Emissions 

EPA’s interpretation of the Clean Air Act for State excess emission provisions is set forth 

in, among other documents, Memorandum from Steven A. Herman, Assistant 

Administrator for Enforcement and Compliance Monitoring, and Robert Perciasepe, 

Assistant Administrator for Air And Radiation, to the Regional Administrators, entitled 

“State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, 

Startup, and Shutdown” (September 20, 1999) (1999 Excess Emissions Policy). That 

policy indicates that because excess emissions might aggravate air quality so as to 
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prevent attainment and maintenance of the NAAQS or jeopardize the PSD increments, all 

periods of excess emissions are considered violations of applicable emission limitations. 

However, the 1999 Excess Emission Policy recognizes that in certain circumstances, 

States and EPA have enforcement discretion to refrain from taking enforcement action 

for excess emissions. In addition, the policy also indicates that States can include in their 

SIPs provisions that would, in the context of an enforcement action for excess emissions, 

excuse a source from penalties (but not injunctive relief) if the source can demonstrate it 

meets certain objective criteria. This is in essence a limited affirmative defense to a 

penalty action. Finally, the Policy states that EPA does not intend to approve SIP 

revisions that would recognize a State director’s decision to bar EPA’s or citizen’s ability 

to enforce applicable requirements. 

Although ADEC has made only minor changes to 18 AAC 50.240 since it was approved 

by EPA in 1998, approval of the minor changes could be interpreted to imply that EPA 

believed 18 AAC 50.240 was consistent with the requirements of the Clean Air Act. EPA 

has reviewed 18 AAC 50.240, however, and does not believe it is consistent with EPA’s 

interpretation of the CAA regarding the types of affirmative defense provisions we can 

approve into SIPS for several reasons. First, an affirmative defense to a penalty action is 

not appropriate where a single source or small group of sources has the potential to cause 

an exceedance of the NAAQS or PSD increments. See 1999 Excess Emissions Policy, 

pp. 2-3, Attachment pp. 3 and 5. The Alaska regulation does not contain provisions to 

address this criterion. Second, an affirmative defense for excess emissions due to certain 

unavoidable events cannot extend to State law provisions that derive from Federally 

promulgated performance standards or emission limits, such as NSPS or NESHAP 

standards and does not extend to PSD permits unless the excess emissions were 

accounted for in the modeling and in the BACT determination. Alaska’s excess emission 

rule does not appear to be so limited in scope. Third, Alaska’s excess emissions rule does 

not sufficiently address all of the criteria for ensuring that excess emissions due to 

startup, shutdown, and malfunction are truly unavoidable and limited to the maximum 

extent possible in duration and impact on air quality. See 1999 Excess Emissions Policy, 

Attachment p. 3-6. Although a State need not adopt the precise language of the 1999 

Excess Emissions Policy, State excess emission provisions must address the essential 

elements of the criteria in the policy to be consistent with the Clean Air Act. Fourth, 18 

AAC 50.240(e) provides an affirmative defense for excess emissions due to scheduled 

maintenance provided certain criteria are met. This is inappropriate under the Clean Air 

Act because sources should be able to schedule maintenance that might otherwise lead to 

excess emissions to coincide with maintenance of production equipment or other facility 

shutdowns. In this regard, it is important to note that the 1999 Excess Emissions Policy 

does not discuss allowing an affirmative defense for excess emissions during 

maintenance activities. This omission was intentional and based on EPA’s interpretation 

of the CAA that any excess emissions during maintenance activities should be addressed 

only through the exercise of enforcement discretion and not through the provision of an 

affirmative defense to penalties. Finally, 18 AAC 50.240 does not make clear that 

ADEC’s decision that the criteria for obtaining the affirmative defense from penalty are 

met is not binding on EPA or citizens. See 1999 Excess Emission Policy, pg. 3, 

Attachment pg. 2. In summary, although ADEC has made only minor changes to 18 
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AAC 50.240, EPA is not approving the changes because to do so would imply that EPA 

believes that 18 AAC 50.240 meets Clean Air Act requirements for SIP excess emission 

provisions. 

18 AAC 50.306 Prevention of Significant Deterioration (PSD) Permits, paragraphs 

(b)(2) and (b)(3). At ADEC’s request, EPA is not incorporating or approving into the 

SIP portions of the Federal 2002 Major NSR Reform Rules that were recently vacated by 

the DC Circuit Court relating to the clean unit provisions and the pollution control 

projects exclusion, more specifically paragraphs 18 AAC 50.306(b)(2) and (b)(3). 

18 AAC 50.316 Preconstruction Review for Construction or Reconstruction of Major 

Source of Hazardous Air Pollutants. This provision contains emissions standards for 40 

CFR part 63 sources. These types of provisions are inappropriate for SIP approval 

because they are not related to the criteria pollutants regulated under section 110 of the 

CAA. 

18 AAC 50.345 Construction and Operating Permits: Standard Permit Conditions, 

paragraphs (b), (c)(3) and (l). Paragraphs (b) and (c)(3) contain emissions standards for 

40 CFR part 70 sources. These types of provisions are inappropriate for SIP approval 

because they are not related to the criteria pollutants regulated under section 110 of the 

CAA. 

Paragraph (l) is a standard permit condition that gives ADEC discretion to approve a 

request from the permittee to delay a source test deadline established by ADEC. 

Importantly, this provision does not give ADEC authority to extend source test deadlines 

established in requirements promulgated by EPA, such as NSPS or NESHAPS. In 

addition, EPA is not aware of any Alaska SIP provisions that impose a requirement to 

conduct a source test within a specified period of time so this provision appears to be 

limited to source test deadlines established in permits issued by ADEC. EPA does not 

believe it can approve this provision, however, because it would give ADEC unbounded 

discretion to change the source testing requirements of a Federally-enforceable permit 

without revising the permit

18 AAC 50.346 Construction and Operating Permits; Other Permit Conditions, paragraph 

(a). This paragraph incorporates Standard Operating Permit Condition II, which contains 

standard monitoring conditions for 18 AAC 50.110 Air Pollution Prohibited, a rule 

prohibiting emissions detrimental to human health or welfare, animal or plant life, or 

property, or which would unreasonably interfere with the enjoyment of life or property. 

EPA is not approving 18 AAC 50.346(a) into the SIP because it only requires corrective 

action after the permittee or ADEC determines a violation has occurred. EPA does not 

believe requiring corrective action after a violation has occurred can be construed as 

monitoring that reasonably assures compliance with the underlying applicable 

requirement. To the extent a SIP requirement includes monitoring, the monitoring must 

be sufficient to reasonably assure compliance with the requirement. 
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18 AAC 50.502 Minor Permits for Air Quality Protection, paragraphs (g)(1) and (g)(2). 

At ADEC’s request, EPA is not incorporating or approving into the SIP portions of the 

Federal 2002 Major NSR Reform Rules that were recently vacated by the DC Circuit 

Court relating to the clean unit provisions and the pollution control projects exclusion, 

more specifically paragraphs 18 AAC 50.502(g)(1) and (g)(2). 

18 AAC 50.508 Minor Permits Requested by the Owner or Operator, paragraphs (1) and 

(2). At ADEC’s request, EPA is not incorporating or approving into the SIP portions of 

the Federal 2002 Major NSR Reform Rules that were recently vacated by the DC Circuit 

Court relating to the clean unit provisions and the pollution control projects exclusion, 

more specifically paragraphs 18 AAC 50.508(1) and (2). 

18 AAC 50.509 Construction of a Pollution Control Project Without a Permit. This 

provision relates to the pollution control projects exclusion that was recently vacated by 

the DC Circuit Court. Therefore, at ADEC’s request, EPA is not incorporating or 

approving this provision into the SIP. 

18 AAC 50.540 Minor Permit: Application, paragraphs (f) and (g). At ADEC’s request, 

EPA is not incorporating or approving into the SIP portions of the Federal 2002 Major 

NSR Reform Rules that were recently vacated by the DC Circuit Court relating to the 

clean unit provisions and the pollution control projects exclusion, more specifically 

paragraphs 18 AAC 50.540(f) and (g). 

18 AAC 50.542 Minor Permit: Review and Issuance, paragraphs (b)(2), (f)(4), (f)(5), and 

(g)(1). Subparagraph (b)(2) allows ADEC to require the owner/operator to submit their 

permit applications online. ADEC did not submit the appropriate documentation for us to 

evaluate the approvability of Alaska’s Online System with respect to EPA’s Cross-Media 

Electronic Reporting Rule (CROMERR). See 70 FR 59848 (October 13, 2005). 

Therefore, EPA is not approving paragraph (b)(2) to allow for electronic submissions. 

At ADEC’s request, EPA is not incorporating or approving into the SIP portions of the 

Federal 2002 Major NSR Reform Rules that were recently vacated by the DC Circuit 

Court relating to the clean unit provisions and the pollution control projects exclusion, 

more specifically paragraphs 18 AAC 50.542(f)(4), (f)(5), and, with respect to the 

reference to clean units and pollution control projects only, (g)(1). 

18 AAC 50.544 Minor Permits: Content, paragraph (e). At ADEC’s request, EPA is not 

incorporating or approving into the SIP portions of the Federal 2002 Major NSR Reform 

Rules that were recently vacated by the DC Circuit Court relating to the clean unit 

provisions and the pollution control projects exclusion, more specifically paragraphs 18 

AAC 50.544(e). 

18 AAC 50.546 Minor Permits: Revisions, paragraph (b). Paragraph (b) authorizes 

ADEC to revise “non-substantive elements of a minor permit without further 

administrative procedures.” The regulation, however, does not describe what type of 

changes will be considered “non-substantive.” Although it may be appropriate to allow 
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some class of permit changes to be made administratively, this provision does not 

adequately describe the class of changes. Therefore, EPA does not believe this provision 

is sufficiently enforceable to meet the basic enforceability requirements for SIPs. 

18 AAC 50.990 Definitions, paragraphs (21), and (77). At ADEC’s request, EPA is not 

incorporating or approving into the SIP portions of the Federal 2002 Major NSR Reform 

Rules that were recently vacated by the DC Circuit Court relating to the clean unit 

provisions and the pollution control projects exclusion, more specifically paragraphs 18 

AAC 50.990(21) and (77). 

V. Requested Sections to be Removed from the SIP

A. Description of Submittal 

Alaska has requested that EPA remove certain provisions from the SIP because they are 

not required elements of a SIP under title I of the CAA or because they have been 

previously repealed by ADEC. 

B. Summary of Action 

EPA proposes to take the following action on the provisions which Alaska has requested 

be removed from the SIP. 

18 AAC 50.090 Ice Fog Limitations, State effective May 26, 1972 

This provision was repealed by ADEC. The requirements of this provision are now 

included in the new and revised section of 18 AAC 50.080 Ice Fog Standards. Removal 

of 18 AAC 50.090 from the SIP does not make the SIP less stringent because 18 AAC 

50.080 is being submitted for inclusion into the SIP. Therefore, EPA is removing from 

the SIP 18 AAC 50.090 Ice Fog Limitations. 

18 AAC 50.300 Permit to Operate and 18 AAC 50.400 Application Review & Issuance 

of Permit to Operate, State effective July 21, 1991 and April 23, 1994; 18 AAC 50.520 

Emissions and Ambient Monitoring, State effective July 21, 1991; and 18 AAC 50.530 

Circumvention, State effective June 7, 1987. These provisions were repealed by ADEC. 

The requirements of these provisions are now included in the new and revised provisions 

of Article 3, Major Stationary Source Permits and Article 5, Minor Permits. Removal of 

these now-repealed provisions from the SIP does not make the SIP less stringent because 

the provisions of Articles 3 and 5 are being submitted for inclusion into the SIP. 

Therefore, EPA is removing from the SIP 18 AAC 50.300 Permit to Operate, 18 AAC 

50.400 Application Review & Issuance of Permit to Operate, 18 AAC 50.520 Emissions 

and Ambient Monitoring, and 18 AAC 50.530 Circumvention. 

18 AAC 50.310 Revocation or Suspension of Permit, State effective May 4, 1980.

This provision was repealed by ADEC. The requirements of this provision are now 

included in the new and revised sections of 18 AAC 50.301 Permit Continuity and 18 

AAC 50.546 Minor Permits: Revisions. Removal of this 18 AAC 50.310 from the SIP 

does not make the SIP less stringent because the provisions 18 AAC 50.301 and 18 AAC 
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50.546 are being submitted for inclusion into the SIP. Therefore, EPA is removing from 

the SIP 18 AAC 50.310 Revocation or Suspension of Permit. 

18 AAC 50.400 Permit Administration Fees, 18 AAC 50.420 Billing Procedures, and 18 

AAC 50.430 Appeal Procedures, State effective January 18, 1997. These provisions 

establish fees for issuance of permits and permit-related actions. State fee provisions that 

are not economic incentive programs and are not designed to replace or relax a SIP 

emission limit are generally not appropriate for inclusion into the SIP. While it is 

appropriate for States to implement fee provisions, for example, to recover costs for 

issuing permits, it is generally not appropriate to make State fee collection Federally 

enforceable. Therefore, EPA is removing from the SIP 18 AAC 50.400 Permit 

Administration Fees, 18 AAC 50.420 Billing Procedures, and 18 AAC 50.430 Appeal 

Procedures. 

18 AAC 50.600 Reclassification Procedures & Criteria, State effective November 1, 

1982. This provision was repealed by ADEC. The requirements of this provision are 

now included in the new and revised sections of 18 AAC 50.250 Procedures and Criteria 

for Revising Air Quality Classifications. Removal of this provision from the SIP does 

not make the SIP less stringent because the provisions of 18 AAC 50.250 are being 

submitted for inclusion into the SIP. Therefore, EPA is removing from the SIP 18 AAC 

50.600 Reclassification Procedures & Criteria. 

18 AAC 50.620 State Air Quality Control Plan, State effective January 4, 1995.

This provision was repealed by ADEC. The requirements of this provision are now 

included in the new and revised sections of 18 AAC 50.030 State Air Quality Control 

Plan. Removal of 18 AAC 50.620 from the SIP does not make the SIP less stringent 

because the provisions of 18 AAC 50.030 are being submitted for inclusion into the SIP. 

Therefore, EPA is removing from the SIP 18 AAC 50.620 State Air Quality Control Plan. 

18 AAC 50.900 Definitions, State effective July 21, 1991 and January 4, 1995

This provision was repealed by ADEC. The requirements of this provision are now 

included in the new and revised sections of 18 AAC 50.990 Definitions. Removal of 18 

AAC 50.900 from the SIP does not make the SIP less stringent because the provisions of 

18 AAC 50.990 are being submitted for inclusion into the SIP. Therefore, EPA is 

removing from the SIP 18 AAC 50.900 Definitions from the SIP. 

VI. Geographic Scope of SIP Approval 

EPA’s approval of the SIP does not extend to sources or activities located in Indian 

Country, as defined in 18 U.S.C.1151. EPA will continue to implement the CAA in 

Indian Country in Alaska because ADEC has not adequately demonstrate authority over 

sources and activities located within the exterior boundaries of the Annette Island 

Reserve and other areas of Indian Country in Alaska.