May 24, 2022

Rebecca Smith Division of Air Quality
Department of Environmental Conservation
P.O. Box 111800
Juneau, Alaska 99811-1800

Re: Organizational Comments on Alaska Department of Environmental Conservation’s Proposed Regional Haze State Implementation Plan (SIP)

Dear Ms. Smith:

The Coalition to Protect America’s National Parks and National Parks Conservation Association (“Organizations”) submit the following comments and attached Expert Report¹ regarding the Alaska Department of Environmental Conservation’s (DEC) proposal to adopt a new Regional Haze Visibility Protection Area, adopt and incorporate a Regional Haze State Implementation Plan (RH SIP), and adopt new requirements for stationary sources in the new Regional Haze Visibility Protection Area intended meet federal requirements.

The Organizations reviewed Alaska DEC’s Proposed RH SIP dated March 30, 2022, the draft regulations, the questions and answers documents, the additional SIP information (introduction, Alaska’s 2nd Plan, Methodology for creating the Regional Haze Visibility Protection Area, the Draft Screening Tool for applications within the proposed Regional Haze Protection Area, the Regional Haze Plan, and the Appendices). The Expert Report prepared by D. Howard Gebhart, “Technical Review of Visibility Modeling for the Second Round of Regional Haze State Implementation Plans: State of Alaska,” which contains comments on several portions of DEC’s proposal is attached hereto and incorporated by reference.

The Coalition to Protect America’s National Parks (“Coalition”) is a non-profit organization composed of over 2,100 retired, former and current employees of the National Park Service (NPS). The Coalition studies, speaks, and acts for the preservation of America’s National Park System. As a group, we collectively represent over 40,000 years of experience managing and protecting America’s most precious and important natural, cultural, and historic resources.

National Parks Conservation Association (“NPCA”) is a national organization whose mission is to protect and enhance America’s national parks for present and future generations. NPCA performs its work through advocacy and education, with its main office in Washington, D.C. and 24 regional and field offices around the country. NPCA has over 1.5 million members and supporters nationwide with over 3,600 in Alaska. NPCA is active nationwide in advocating for strong air quality requirements to protect our parks, including submission of petitions and comments relating to visibility issues, regional haze State Implementation Plans, climate change and mercury impacts on parks, and emissions from individual power plants and other sources of pollution affecting national parks and communities.

NPCA’s members live near, work at, and recreate in all the national parks, including those directly affected by emissions from Alaska’s sources.

As discussed in these comments, the Organizations have serious concerns regarding DEC’s Draft SIP for the second implementation period. As discussed later in these comments, theNational Park Service’s (“NPS”) consultation comments to DEC echo many of the concerns raised by the Organizations in this letter.²

As detailed below, the Draft SIP will not result in reasonable progress towards improving visibility at Alaska’s Class I areas its sources impact.

Table of Contents

I. INTRODUCTION AND BACKGROUND

II. REQUIREMENTS FOR PERIODIC COMPREHENSIVE REVISIONS FOR REGIONAL HAZE SIPS

A. Clean Air Act and Regional Haze Rule

B. EPA’s 2017 Revisions to the Regional Haze Rule

C. EPA’s 2021 Regional Haze Clarification Memorandum

D. Emission Reductions to Make Reasonable Progress Must be Included in Practically Enforceable SIP Measures

III. DEC’S RH SIP MUST INCLUDE FOUR-FACTOR ANALYSES AND EMISSION LIMITATIONS FOR NOx EMISSIONS AND CORRECT THE OTHER MODELING ISSUES

A. DEC Must Not Screen Significant Emissions From Sources of Visibility Impairing Pollution

B. DEC Must Not Focus Only on SO2 ‒ It Must Also Conduct Four-Factor Analyses and Include Emission Limitations for NOx Emissions

1. EPA’s Expectation that State SIPs Analyze SO2 and NOx

2. DEC Failed to Analyze NOx Emissions

3. Gebhart’s Expert Report Explained That DEC’s Evaluation of the Monitoring Data Resulted in the Wrongful Exclusion of NOx Emission Reduction Analyses

4. On Most-Impaired Days, Removing the Volcanic Contribution Demonstrated Nitrate Roughly Equivalent to Corrected Sulfate Extinction

5. DEC Must Correct Its Flawed Approach and Analyze NOx for Additional Sources

C. DEC Must Address the Significant Impact of Local NOx and SO2 Emissions at the Denali IMPROVE Monitor by the Healy Power Plant

IV. DEC’S RH SIP MUST INCLUDE FOUR-FACTOR ANALYSES AND EMISSION LIMITATIONS FOR EMISSIONS FROM OIL AND GAS SOURCES

V. DEC MUST RENOTICE ITS SIP AND INCLUDE THE REQUIRED FOUR-FACTOR ANALYSES AND ENFORCEABLE EMISSION LIMITATIONS FOR THE ALASKA LNG PROJECT

VI. DEC’S RH SIP MUST INCLUDE ENFORCEABLE PROVISIONS FOR A SHUT DOWN OR A FOUR-FACTOR ANALYSIS FOR SO2 EMISSIONS FOR UNIT 1 AT THE HEALY POWER PLANT

A. DEC’S Incomplete Analysis on the Healy Power Plant

B. The SIP Must Include A Requirement for Unit 1 to Shut Down

C. DEC Must Require the Source Reduce SO2 Emissions Down to at Least 0.15 lb/MMBtu

D. The Public Lacked Access to Emissions and Other Required Information

E. The Organizations Share the FLM’s Concerns and Recommendations

F. Emission Limitations Must be in DEC’s SIP

VII. WE URGE DEC TO REWORK AND RENOTICE ITS PROPOSED VISIBILITY PROTECTION AREA REGULATIONS

A. Legal Requirements Applicable to DEC’s Proposed Regulations

1. Regional Haze Regulations and Stationary Source Regulations

2. The Clean Air Act’s Anti-Backsliding Provision

B. DEC’s Proposed Amendments to its Stationary Source Regulations

C. DEC’s SIP Narrative Failed to Fully Disclose the Full Extent of Its Proposed Regulatory Amendments

D. DEC’s Proposed Regulations Are Vague, Unenforceable and Less Stringent Than Clean Air Act and EPA’s RHR

VIII. DEC MUST ANALYZE ENVIRONMENTAL JUSTICE IMPACTS OF ITS REGIONAL HAZE SIP, AND SHOULD ENSURE THE SIP WILL REDUCE EMISSIONS AND MINIMIZE HARMS TO DISPROPORTIONATELY IMPACTED COMMUNITIES

A. DEC Completely Ignored the Environmental Justice Communities Impacted by Alaska’s Polluting Sources

B. DEC Can Facilitate EPA’s Consideration of Environmental Justice to Comply with Federal Executive Orders

C. Alaska’s Ignores EPA’s Regional Haze Guidance and Clarification Memo, which Direct States to Take Environmental Justice Concerns and Impacts Into Consideration

D. EPA Has a Repository of Directives and Material Available for DEC to Use in Considering Environmental Justice

E. EPA Must Consider Environmental Justice When it Reviews and Takes Action on Alaska’s SIP

F. DEC Must Consider Environmental Justice under Title VI of the Civil Rights Act

G. DEC’s Lack of Any Effort on Environmental Justice are Wholly Inadequate to Protect People Living in Environmental Justice Communities in Alaska Affected by Alaska’s Sources

CONCLUSION

I. INTRODUCTION AND BACKGROUND

Alaska is home to four Class I areas:

Denali National Park and Preserve,
Tuxedni National Wildlife Refuge / National Wilderness Area,
Simeonof National Wildlife Refuge / National Wilderness Area, and
Bering Sea National Wildlife Refuge / National Wilderness

These areas are iconic, treasured landscapes, and Alaska is rich in these resources. Congress set aside these and other national parks and wilderness areas to protect our natural heritage for generations. These protected areas provide habitat for a range of wildlife species, provide year-round recreational opportunities for residents and visitors, and generate millions of dollars intourism revenue. Because of these areas’ designations as “Class I” under the Clean Air Act(“CAA” and “Act”), their air quality is entitled to the highest level of protection.

To improve air quality in our most treasured landscapes, Congress passed the visibilityprotection provisions of the CAA in 1977, establishing “as a national goal the prevention of any future, and the remedying of any existing, impairment of visibility in the mandatory class I Federal areas which impairment results from manmade air pollution.”³ “Manmade airpollution” is defined as “air pollution which results directly or indirectly from humanactivities.”⁴ To protect Class I areas’ “intrinsic beauty and historical and archeological treasures,” the CAA’s regional haze program establishes a national regulatory floor and requires states to design and implement programs to curb haze-causing emissions within theirjurisdictions. Each state must submit for EPA review a state implementation plan (“SIP”) designed to make reasonable progress toward achieving natural visibility conditions.⁵

A regional haze SIP must provide “emissions limits, schedules of compliance and other measures as may be necessary to make reasonable progress towards meeting the national goal.”⁶ Two of the most critical features of a regional haze SIP are the requirementsfor installation of Best Available Retrofit Technology (“BART”) limits on pollutant emissions and a long-term strategy for making reasonable progress toward the national visibility goal.⁷ Although many states addressed the CAA’s BART requirements in their initial regionalhaze plans, EPA’s 2017 revisions to the RHR make clear that BART was not a once-and-done requirement. Indeed, states “will need” to reassess “BART-eligible sources that installed only moderately effective controls (or no controls at all)” for any additional technically achievable controls in the second planning period.⁸ The haze requirements in the CAA present an unparalleled opportunity to protect and restore regional air quality by curbing visibility-impairing emissions from a variety of polluting sources.

Implementing the regional haze requirements promises benefits beyond improving views. Pollutants that cause visibility impairment also harm public health. For example, oxidesof nitrogen (“NOx”) are a precursor to ground-level ozone which is associated with respiratorydisease and asthma attacks. NOx also reacts with ammonia, moisture, and other compounds toform particulates that can cause and/or worsen respiratory diseases, aggravate heart disease, and lead to premature death. Similarly, sulfur dioxide (“SO2”) increases asthma symptoms, leads to increased hospital visits, and can also form particulates. NOx and SO2 emissions also harm terrestrial and aquatic plants and animals through acid rain as well as through deposition ofnitrates, which in turn cause ecosystem changes including eutrophication of mountain lakes.

Unfortunately, the promise of natural visibility is unfulfilled because the air in most Class Iareas, including in Alaska’s most treasured natural areas, remains polluted by industrial sources,including the sources identified below, which are covered in our comments.

II. REQUIREMENTS FOR PERIODIC COMPREHENSIVE REVISIONS FOR REGIONAL HAZE SIPS

A. Clean Air Act and Regional Haze Rule

In developing its long-term strategy, a state must consider its anthropogenic sources of visibility impairment and evaluate different emission reduction strategies including and beyond those prescribed by the BART provisions. A state should consider “major and minor stationary sources, mobile sources and area sources.” At a minimum, a state must consider the following factors in developing its long-term strategy:

(A) Emission reductions due to ongoing air pollution control programs, including measures to address reasonably attributable visibility impairment;
(B) Measures to mitigate the impacts of construction activities;
(C) Emissions limitations and schedules for compliance to achieve the reasonable progress goal;
(D) Source retirement and replacement schedules;
(E) Smoke management techniques for agriculture and forestry management purposes including plans as currently exist within the State for these purposes;
(F) Enforceability of emission limitations and control measures; and
(G) The anticipated net effect on visibility due to projected changes in point, area, and mobile emissions over the period addressed by the long-term strategy.⁹

Additionally, a state “[m]ust include in its implementation plan a description of the criteriait used to determine which sources or groups of sources it evaluated and how the four factorswere taken into consideration in selecting the measures for inclusion in its long-term strategy.” States must also document the technical basis for the SIP, including monitoring data, modeling, and emission information, including the baseline emission inventory upon which its strategies are based. All of this information is part of a state’s revised SIP and subject to public notice and comment.

B. EPA’s 2017 Revisions to the Regional Haze Rule

On January 10, 2017, the EPA revised the RHR to strengthen and clarify the reasonable progress and consultation requirements of the rule.

A state’s reasonable progress analysis must consider the four-factors identified in the Clean Air Act and regulations. EPA’s 2017 Revisions to the RHR made clear that states are to first conduct the required Four-Factor Analysis for its sources, and then use the results from its Four-Factor Analyses and determinations to develop the reasonable progress goals. Thus, the rule “codif[ies]” EPA’s “long- standing interpretation” of the SIP “planning sequence” that states are required to follow:

• [C]alculate baseline, current and natural visibility conditions, progress to date and the [Uniform Rate of Progress (“URP”)];¹⁰
• [D]evelop a long-term strategy for addressing regional haze by evaluating the four factors to determine what emission limits and other measures are necessary to make reasonable progress;¹¹
• [C]onduct regional-scale modeling of projected future emissions under the long-term strategies to establish Reasonable Progress Goals (“RPGs”) and then compare those goals to the URP line;¹² and
• [A]dopt a monitoring strategy and other measures to track future progress and ensure compliance.¹³

Thus, the RHR makes clear that a state must conduct Four-Factor Analyses and cannot rely on uniform rate of progress as an excuse for failing to perform the core functions of the law. Indeed:

The CAA requires states to determine what emission limitations, compliance schedules and other measures are necessary to make reasonable progress by considering the four factors. The CAA does not provide that states may then reject some control measures already determined to be reasonable if, in the aggregate, the controls are projected to result in too much or too little progress. Rather, the rate of progress that will be achieved by the emission reductions resulting from all reasonable control measures is, by definition, a reasonable rate of progress. … [I]f a state has reasonably selected a set of sources for analysis and has reasonably considered the four factors in determining what additional control measures are necessary to make reasonable progress, then the state’s analytical obligations are complete if the resulting RPG for the most impaired days is below the URP line. The URP is not a safe harbor, however, and states may not subsequently reject control measures that they have already determined are reasonable.¹⁴

Moreover, for each Class I area within its borders, a state must determine the uniform rate of progress—which is the amount of progress that, if kept constant each year, would ensure that natural visibility conditions are achieved in 2064.15 If a state establishes reasonable progress goals that provide for a slower rate of improvement in visibility than the uniform rate of progress, the state must provide a technically “robust” demonstration, based on a careful consideration of the statutory reasonable progress factors, that “there are no additional emission reduction measures for anthropogenic sources or groups of sources” that can reasonably be anticipated to contribute to visibility impairment in affected Class I areas.¹⁵

Although many states addressed the Act’s BART requirements in their initial regional haze plans, EPA’s 2017 revisions to the RHR make clear that BART was not a once-and-done requirement. Indeed, states “will need” to reassess “BART-eligible sources that installed only moderately effective controls (or no controls at all)” for any additional technically achievable controls in the second planning period.¹⁶

To the extent that a state declines to evaluate additional pollution controls for any source relied upon to achieve reasonable progress based on that source’s planned retirement or decline in utilization, it must incorporate those operating parameters or assumptions as enforceable limitations in the second planning period SIP. The Act requires that “[e]ach state implementation plan . . . shall” include “enforceable limitations and other control measures” as necessary to “meet the applicable requirements” of the Act.¹⁷ The RHR similarly requires each state to include “enforceable emission limitations” as necessary to ensure reasonable progress toward the national visibility goal.¹⁸ Therefore, where the state relies on a source’s plans to permanently cease operations or projects that future operating parameters (e.g., limited hours of operation or capacity utilization) will differ from past practice, or if this projection exempts additional pollution controls as necessary to ensure reasonable progress, then the state “must” make those parameters or assumptions into enforceable limitations.¹⁹

In addition, the 2017 RHR revisions further clarified that regional haze SIPs meet certain procedural and consultation requirements.²⁰ The state must consult with the Federal LandManagers (“FLMs”) and look to the FLMs’ expertise of the lands and knowledge of the way pollution harms them to guide the state to ensure SIPs do what they must to help restore natural skies. The RHR also requires that in “developing any implementation plan (or plan revision) or progress report, the State must include a description of how it addressed any comments provided by the Federal Land Managers.”²¹

Finally, the duty to ensure reasonable progress requirements are met for purposes of the SIP rests with the state and it is ultimately accountable for preparing, adopting, and submitting a compliant SIP to EPA.

C. EPA’s 2021 Regional Haze Clarification Memorandum

On July 8, 2021, EPA issued a memo which additionally clarified certain aspects of the revised RHR and provided further information to states and EPA regional offices regarding their planning obligations for the Second Planning Period.²²

In particular, EPA made clear that states must secure additional emission reductions that build on progress already achieved, there is an expectation that reductions are additive to ongoing and upcoming reductions under other CAA programs.²³

In evaluating sources for emission reductions, EPA emphasized that:

Source selection is a critical step in states’ analytical processes. All subsequent determinations of what constitutes reasonable progress flow from states’ initial decisions regarding the universe of pollutants and sources they will consider for the second planning period. States cannot reasonably determine that they are making reasonable progress if they have not adequately considered the contributors to visibility impairment. Thus, while states have discretion to reasonably select sources, this analysis should be designed and conducted to ensure that source selection results in a set of pollutants and sources the evaluation of which has the potential to meaningfully reduce their contributions to visibility impairment.²⁴

Thus, it is generally not reasonable to exclude from further evaluation large sources or entire sectors of visibility impairing pollution.

Moreover, the Clarification Memo reiterates that the fact that a Class I area is meeting the Uniform Rate of Progress is “not a safe harbor” and does not excuse the state from its obligation to consider the statutory reasonable progress factors in evaluating reasonable control options.²⁵ In addition, the Clarification Memo makes clear that a state should not reject cost-effective and otherwise reasonable controls merely because there have been emission reductions since the first planning period owing to other ongoing air pollution control programs or merely because visibility is otherwise projected to improve at Class I areas.27 Ongoing air pollution controls, otherwise improved visibility, and/or air modeling results must not be used to summarily assert that a state has already made sufficient progress and, as a result, no sources need to be selected or no new controls are needed regardless of the outcome of Four-Factor Analyses.²⁶ As noted above, the reasonable progress Four-Factor Analysis is the vehicle for identifying reasonable control measures, limitations, etc., necessary during this second implementation period, and a statutory Four-Factor Analysis must specifically include consideration of:

1. Consider the costs of compliance,
2. The time necessary for compliance,
3. The energy and non-air quality environmental impacts of compliance, and
4. The remaining useful life of any potentially affected sources.²⁷

Notably, Congress did not include visibility, modeling results, or emission inventories as one of these four statutory factors. Thus, to the extent a state relies on purportedly insufficient air quality benefits because of visibility, emission inventories, and/or modeled impacts from a source as a justification for refusing to require cost-effective emission reductions, the state’sanalysis is inconsistent with the CAA and the RHR.

The Clarification Memo also instructs that, for sources that have previously installed controls, states should still evaluate the “full range of potentially reasonable options for reducing emissions,” including options that may “achieve greater control efficiencies, and, therefore, lower emission rates, using their existing measures.”²⁸ Moreover, “[i]f a state determines that an in-place emission control at a source is a measure that is necessary to make reasonable progress and there is not already an enforceable emission limit corresponding to that control in the SIP, the state is required to adopt emission limits based on those controls as part of its long-term strategy in the SIP via the regional haze second planning period plan submission.”²⁹ This also means that so-called “on-the-way” measures, including anticipated shutdowns or reductions in a source’s emissions or utilization, that are relied upon to forgo a Four-Factor Analysis or to shorten the remaining useful life of a source “must be included in the SIP” as enforceable emission reduction measures.³⁰

Finally, the Clarification Memo confirms EPA’s recommendation that states take into consideration environmental justice concerns and impacts in issuing any SIP revision for the second planning period.

In sum, EPA’s 2021 Clarification Memo makes clear that the states’ regional haze plans for the second planning period must include meaningful emission reductions to make reasonable progress towards the national goal of restoring visibility in Class I areas. TheClarification Memo confirms that DEC’s efforts to avoid emission reductions—by asserting, for example, that reductions are not necessary because visibility has improved, because reductions are anticipated at some later date or due to implementation of another program, or because a source has some level of control—is at odds with Alaska’s haze obligations under the CAA and the RHR itself. Indeed, “a state should generally not reject cost-effective and otherwisereasonable controls merely because there have been emission reductions since the first planningperiod owing to other ongoing air pollution control programs or merely because visibility isotherwise projected to improve at Class I areas.”³¹

D. Emission Reductions to Make Reasonable Progress Must be Included in Practically Enforceable SIP Measures

A state cannot rely on unspecified permit and other provisions as providing emission reductions necessary to ensure reasonable progress. The CAA requires states to submit implementation plans that “contain such emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress toward meeting the national goal” of achieving natural visibility conditions at all Class I Areas.³² The RHR requires that states must revise and update its regional haze SIP, and the “periodic comprehensive revisions must include the“enforceable emissions limitations, compliance schedules, and other measures that are necessary to make reasonable progress as determined pursuant to [40 C.F.R. §§ 51.308](f)(2)(i) through(iv).”³³ EPA’s Guidance further explains these requirements:

This provision requires SIPs to include enforceable emission limitations and/or other measures to address regional haze, deadlines for their implementation, and provisions to make the measures practicable enforceable including averaging times, monitoring requirements, and record keeping and reporting requirements.³⁴

Thus, while the SIP is the basis for demonstrating and ensuring state plans meet RHR requirements, state-issued permits must complement the SIP.³⁵ In addition, to the extent that a state relies on any expected retirement, reduction in utilization, or reduction in emissions as a result of a permit provision in its reasonable progress analysis, those emission reductions must be included as enforceable emission limitations in the SIP itself.³⁶ Finally, reasonable progress requirements apply to all sources, and states must not rely on existing permits (e.g., construction permits issued under Title I of the Act, operating permits issued under Title V of the Act)to allow sources to avoid the Four-Factor Analysis; there is no off-ramp for sources that hold permits.

III. DEC’S RH SIP MUST INCLUDE FOUR-FACTOR ANALYSES AND EMISSION LIMITATIONS FOR NOx EMISSIONS AND CORRECT THE OTHER MODELING ISSUES

There are numerous issues with DEC’s visibility modeling effort that was used to inform DEC about the emission sources contributing to visibility impairment at designated Class I areas within Alaska. Emission sources identified via the modeling effort as contributing to visibility impairment were then subject to a review of additional emission control measures that could reduce visibility precursor emissions, known as the “four-factor analysis.”

A. DEC Must Not Screen Significant Emissions From Sources of Visibility Impairing Pollution

States must identify sources for the Four-Factor Analysis and the screening threshold a state applies must ensure that the threshold is low enough to bring in most sources harming a Class I area; a state must not simply eliminate evaluations of all or most sources for measures to reduce visibility impairing pollution. EPA’s Clarification Memo emphasized this requirement and explained that:

[W]hile states have discretion to reasonably select sources, this analysis should be designed and conducted to ensure that source selection results in a set of pollutants and sources the evaluation of which has the potential to meaningfully reduce their contributions to visibility impairment.³⁷

Contrary to the requirement to meaningfully reduce, which requires that states comprehensively identify sources of human-caused visibility-impairing emissions across source categories, the Draft SIP used various methods to circumvent this requirement.

As the Gebhart Report explained, “[t]here are several overriding issues with the visibility modeling effort conducted in support of the second-round Alaska regional haze SIP.”³⁸ First, “[i]n order to conform with EPA’s regional haze guidance, the criteria used to select emission sources subject to the “four-factor” emissions control analysis needed to be appropriately inclusive. Simply put, the ADEC analysis needed to identify those existing emission sources that contributed to a ‘meaningful portion’ of the ongoing visibilityimpairment.”³⁹ Rather than identify an inclusive group of sources, “[i]n Alaska, the modeling and subsequent analysis identified only six emission sources where the four-factor emissionscontrol analysis has been performed.” As the Gebhart Report described,

There is no dispute that the six emission sources identified by Alaska are important contributors to visibility impairment and these sources were appropriately identified for the four-factor emissions control analysis. However, the question is whether the six emission sources identified by Alaska were appropriately inclusive to identify a ‘meaningful portion’ of the existing visibility impairment.⁴⁰

DEC’s identification of only six emissions sources was not appropriate. As discussed below, DEC must expand the list to include additional sources.

B. DEC Must Not Focus Only on SO2 ‒ It Must Also Conduct Four- Factor Analyses and Include Emission Limitations for NOx Emissions

1. EPA’s Expectation that State SIPs Analyze SO2 and NOx

EPA’s expectation regarding the pollutants considered for source selection and control strategy analysis for the second planning period is that “each state will analyze sulfur dioxide (SO2) and nitrogen oxide (NOx) in selecting sources and determining control measures.”⁴¹ Moreover, “[a] state that chooses not to consider at least these two pollutants in the second planning period should show why such consideration would be unreasonable, especially if the state considered both these pollutants in the first planning period.”⁴²

2. DEC Failed to Analyze NOx Emissions

As the Gebhart Report explained, “[i]n addition to limiting the four-factor emissions control analysis to a small subset of emission sources, Alaska also erred by limiting the four-factor analysis to only SO2 emissions. Anthropogenic visibility impairment from point source emissions is generally attributable to both sulfate (linked to SO2 emissions) and nitrate (linked to NOx emissions). By ignoring the contribution of NOx emissions in the draft regional haze SIP, Alaska has failed to meet the regulatory burden to control a ‘meaningful portion’ of theexisting visibility impairment.”⁴³

3. Gebhart’s Expert Report Explained That DEC’s Evaluation of the Monitoring Data Resulted in the Wrongful Exclusion of NOx Emission Reduction Analyses

DEC attempts to justify its choice to focus on SO2 emission controls in part based on its evaluation of the existing visibility impairment at Alaska’s Class I areas. The IMPROVE monitoring data do show that the existing light extinction at Alaska’s Class I areas is presently dominated by sulfate extinction.⁴⁴ As the Gebhart Report explained, “the IMPROVE monitoring data by itself does not tell the whole story and further investigation into the actual sources contributing to the measured sulfate is needed. For example, Alaska reports in the draft SIP that the sulfate extinction component to visibility impairment is dominated by volcanic emissions at the more remote Alaska IMPROVE monitoring sites.”⁴⁵ Specifically, DEC identified that volcanic contributions generate roughly 50% of the measured sulfate at TRCR1 on the most-impaired days (Figure III.K.13.G-21) and roughly 85% of the measured sulfate at TUXE1 on the most-impaired days (Figure III.K.123.G-22).⁴⁶

By taking this approach, Gebhart explained, DEC “appears to have ignored the large volcanic contribution to sulfate extinction when selecting which industrial point source emissions to include in the four-factor emissions control analysis. As stated previously, Alaska has focused the emissions control program presented in the draft SIP exclusively on point source SO2emissions. In reality, by addressing only SO2 emissions, Alaska’s planned approach attacks emissions sources that make only apartial contribution to the ongoing visibility point source impairment. A broader approach tocapture additional emission sources and especially larger NOx emission source is required.”⁴⁷

4. On Most-Impaired Days, Removing the Volcanic Contribution Demonstrated Nitrate Roughly Equivalent to Corrected Sulfate Extinction

As discussed in detail in the Gebhart Report, DEC’s failure to appropriately include NOxemission controls in the second-round Alaska regional haze SIP is especially troublesome at TUXE1.⁴⁸ Specifically, as the Report explained, “[i]f Alaska had attempted to correct thesulfate concentrations on the most-impaired days to remove the volcanic contribution (85% basedon Figure III.K.13.G-22), it would have become evident that the extinction attributable to nitratewould have been roughly equivalent to the corrected sulfate extinction.”⁴⁹ Notably, “[v]isibility improvements at TUXE1 in particular were penalized by Alaska’s choice to focus only on SO2 emission controls.”⁵⁰

Gebhart’s Report underscored the importance of controlling NOx emissions at TUXE1, where it explained, “[t]he Alaska regional haze SIP presents data which actually showed that NOx emission controls had the potential to be effective at improving visibility conditions at TUXE1. In the draft SIP (Ranking of Potential Contributions by Facility), ADEC reports the potential for each point source to contribute to visibility impairment based on the Weighted Emissions Potential (WEP) modeling results. Based on a review of the TUXE1 modeling results, the modeled WEP for NOx emissions at the “Top-Ten” emission sources are reported to be roughly equal to the modeled WEP based on SO2 emissions for the sources impacting TUXE1.”⁵¹

Gebhart’s Report states that all of the above (as well as other information in the Report)leads to the reasonable conclusion that NOx emission controls have the potential to be effective at improving visibility conditions at TUXE1.⁵²However, the Alaska regional haze SIP has failed to consider such controls in their second-round strategies to improve regional haze and as such, Alaska’s regional haze program falls short of the legal requirement to address a “meaningfulportion” of the ongoing visibility impairment.⁵³

5. DEC Must Correct Its Flawed Approach and Analyze NOx for Additional Sources

DEC must correct its flawed approach and for sources in the below table, ensure that Four-Factor Analyses are conducted and enforceable emission limitations included in the SIP for this planning period.

Table 1. Sources Identified by NPCA that Warrant Four-Factor Analysis and Emission Limitations in the SIP⁵⁴

Facility Name

County

Description

Cumulative Q/d

Closest CIA

Q/d

d (km)

Healy Power Plant*

Denali

Fossil Fuel Electric Power

Generation

89.0

532.6

Denali

5.99

Swanson River Field

Kenai Peninsula

Crude Petroleum and Natural Gas

Extraction

30.2

2153.9

Tuxedni

19.1

71.42

Red Dog Mine

Northwest Arctic

Lead Ore and Zinc Ore

Mining

14.1

5636.3

Denali

8.2

399.55

Central Compressor

Plant

North Slope

Crude Petroleum and Natural Gas

Extraction

12.1

8574.1

Denali

12.1

705.76

Chena Power Plant*

Fairbanks North Star

Fossil Fuel Electric Power Generation

10.9

1290.3

Denali

10.9

118.40

North Pole Power Plant

Fairbanks North Star

Fossil Fuel Electric

10.6

1293.9

Denali

10.6

121.84

Facility Name	County	Description	Cumulative Q/d	Q	Closest CIA	Q/d	d (km)
		Power Generation
Fort Wainwright*	Fairbanks North Star	National Security	9.7	1149.4	Denali	9.7	119.04
Central Gas Facility	North Slope	Crude Petroleum and Natural Gas Extraction	8.6	6067.0	Denali	8.6	705.78
Kenai Refinery	Kenai Peninsula	Petroleum Refineries	5.7	504.3	Tuxedni	5.7	87.91
Nikiski Combined Cycle Plant	Kenai Peninsula	Fossil Fuel Electric Power Generation	5.6	487.1	Tuxedni	5.6	86.84
Eielson Air Force Base*
Fairbanks Campus Power Plant*

*Denotes selected by DEC

C. DEC Must Address the Significant Impact of Local NOx and SO2 Emissions at the Denali IMPROVE Monitor by the Healy Power Plant

As the Gebhart Report pointed out, the visibility situation at Denali National Park and Preserve “and specifically the DENA1 IMPROVE monitor differ from what is occurring at other Alaska IMPROVE monitoring locations. DENA1 is significantly impacted by local emissions, specifically SO2 and NOx emissions released at the nearby Healy Power Plant (Healy). Healy is located about 14 kilometers (km) from the DENA1 IMPROVE monitor with reported 2017 emissions of 296 tpy (SO2) and 231 tpy (NOx).”⁵⁵ The Gebhart Report further explained that “[t]he information presented in the draft SIP indicate that Healy is by far the largest point source contributor to visibility impairment at DENA1 based on the WEP modeling results. Infact, the Healy NOx WEP modeled for DENA1 exceeds the modeled SO2 WEP for the #2-ranked emission source (Aurora Energy LLC, Chena Power Plant) by about a factor of 3-4.”⁵⁶

Additionally, Gebhart explained that, “[t]hese data lead to a similar conclusion as expressed above for emission sources in Alaska that impact visibility, i.e., NOx emissions also contribute significantly to ongoing visibility impairment at DENA1 and other Alaska Class I areas. Alaska erred by ignoring NOx emissions in the proposed control strategy, resulting in a missed opportunity to address and reduce the ongoing nitrate contribution to visibility impairment.”⁵⁷ DEC must correct its flawed approach.

“At a minimum, the four-factor emissions control analysis should have addressed NOx emissioncontrols at the Healy Power Plant as ADEC’s own data showed Healy’s NOx emissions to be a substantialcontributor to visibility impairment at DENA1.”⁵⁸

IV. DEC’S RH SIP MUST INCLUDE FOUR-FACTOR ANALYSES AND EMISSION LIMITATIONS FOR EMISSIONS FROM OIL AND GAS SOURCES

The RHR requires that states consider “major and minor stationary sources or groupsof sources, mobile sources, and area sources.”⁵⁹ Indeed, “regional haze” is defined in the RHR to explicitly include these sources:

Visibility impairment that is caused by the emission of air pollutants from numerous anthropogenic sources located over a wide geographic area. Such sources include, but are not limited to, major and minor stationary sources, mobile sources, and area sources.⁶⁰

The Gebhart Report pointed out that “[o]n a statewide basis, ADEC projects 2028 NOx emissions from the oil and gas sector at 42,703 tpy.”⁶¹ Gebhart explained that “[t]he 2028 ADEC emissions projection for the oil and gas sector may actually underestimate future oil and gas emissionsbecause the draft SIP indicates zero growth in oil and gas emissions between 2016 and 2028. Alaska failsto explain why the draft regional haze SIP contemplates zero growth in emissions from the oil and gassector.”⁶² SIPs must contain supporting rational for future projections and as proposed it is unclearupon what information zero growth DEC’s assumption is based over the next planning period. Moreover, as highlighted in the Gebhart Report, “[a]ddressing reasonable growth within the oil and gassector and controlling future emissions from these operations will be critical to Alaska’s ability to‘prevent future visibility impairment’ as required under the regional haze regulations [and the Act].”⁶³

DEC failed to consider emissions from the area source category of oil and gas development, despite growing development throughout the state and impacts from this section to the Class I areas. DEC must assess the oil and gas source sector, conduct Four-Factor Analyses and include enforceable emission limitations in its SIP during this planning period to ensure strong regulations are in place to protect visibility at its Class I areas.

In developing its regulations for the oil and gas industry, DEC must consider the information contained in the NPCA-commissioned comprehensive report on reasonable progress four-factor control analysis for the oil and gas industry.⁶⁴ This information was subsequently applied to oil and gas facilities in New Mexico and the results transmitted to the New Mexico Environment Department to aid in the development of its regional haze SIP.⁶⁵ These comments incorporate the report by reference, as they include a great deal of applicable information that DEC must to review and consider in developing its SIP.

V. DEC MUST RENOTICE ITS SIP AND INCLUDE THE REQUIRED FOUR-FACTOR ANALYSES AND ENFORCEABLE EMISSION LIMITATIONS FOR THE ALASKA LNG PROJECT

DEC’s Draft SIP explained that “Alaska LNG (AK LNG) Project is a proposed project by theAlaska Gasline Development Corporation (AGDC) for a liquid natural gas pipeline including processing stations which would connect available natural gas reserves on the North Slope with state markets in Interior and Southcentral Alaska as well as international markets.”⁶⁶ DEC Draft SIP characterizes the AK LNG Project in three parts: Gas Treatment Plant on the North Slope; a Pipeline running south from the North Slope to the Kenai Peninsula with compressor and heater stations, and a Liquefaction Plant on the Kenai Peninsula to prepare the gas for transport asLNG to markets in the Contiguous United States and East Asia.⁶⁷

The Draft SIP first explained that the planned Gas Treatment Plant on the North Slope completed the construction permitting process with DEC.⁶⁸ The Gas Treatment Plant would be one of the largest stationary sources in the North Slope Borough with potential emissions under maximum flaring conditions of: 3,322 TPY for NOx; 903 TPY for particulate matter; and 1,076 TPY for SO2; as allowed under Construction Permit AQ1524CPT01.⁶⁹ Despite DEC authorizing construction of this major stationary source in 2020, the Draft SIP failed to address emissions from this source, instead proposed to punt consideration of the emissions “as a possible source of visibility impairment at the Denali Class I area”⁷⁰ in the third planning period.

This is impermissible, emissions from a source must be mitigated at the time of construction and the state must comply with statutory obligations to prevent future visibility impairment and guard against adverse impacts to air quality related values at Class I areas.⁷¹

DEC’s Draft SIP took a similar approach for the Gas Pipeline and Compressor Stations. These emitting sources include the 800-mile pipeline and compressor stations running south from the Gas Treatment Plant on the North Slope to the Liquefaction Plant at Nikiski on the Kenai Peninsula. The Draft SIP failed to address emissions from these sources instead proposing that the emissions be “reviewed as a possible source of visibility impairment at the Denali Class I area during construction activities or operations in the third planningperiod.”⁷²

The Liquefaction Plant, which is planned to be built on the Kenai Peninsula and would compress and subcool feed gas stream to liquid natural gas for both the internal Alaska market, as well as for markets in East Asia via marine LNG carriers. The permit applicant’s Class I modeling analysis, upon which ADEC’s proposed Prevention of Significant Deterioration (“PSD”) permit approval relied, clearly documented adverse air quality impacts at both the Tuxedni Class I area and Denali National Park and Preserve.⁷³ Additionally, the Final Environmental Impact Statement prepared pursuant to NEPA documented exceedances of the visibility thresholds.⁷⁴ Nevertheless, despite DEC’s legal obligations under the PSD construction permit program to consult with and address FLM concerns prior to providing public notice on its proposed permit action ‒ DEC did not.⁷⁵

DEC’s proposed PSD construction permit underwent a 90-day public comment period from September 11 through December 10, 2020.⁷⁶ NPCA and other conservation organizations submitted extensive comments on the proposed PSD permit.⁷⁷ DEC’s Draft SIP explained that on March 25, 2021, the permit applicant, AGDC, requested that DEC stop work on responding to the comments received on the preliminary PSD permit.⁷⁸ The Draft SIP further explained that given the construction timeline, construction is estimated to take at least seven and a half years and with accompanying logistics “it appears unlikely that the project would reach operational status before the end of the second planning period.”⁷⁹ Thus, the Draft SIP concluded that the AK LNG Project should be “reviewed as a possible source of visibility impairment at the Tuxedni Class I area during the third planning period.”⁸⁰

As detailed extensively in NPCA’s comments on the proposed PSD construction permit the Gas Treatment Plant on the North Slope, the Pipeline running south from the North Slope to the Kenai Peninsula with compressor and heater stations, and the Liquefaction Plant should all be considered one source under the permitting program.⁸¹ DEC failed to treat the proposed source in this manner. Even failing to treat the AK LNG Project as one source, DEC should have assessed each of the facility’s emissions and done so under realistic emission scenarios which would have to include emissions of the other sources.

Moreover, ignoring the legal requirement that it must mitigate emissions at the time of construction, in the Draft SIP DEC concluded that it will wait until the next planning period to review emissions for possible visibility impairment at just one Class I area ‒ and not the two areas ‒ that will be impacted.

DEC does not appear to understand how the regional haze requirements apply to the AK LNG Project. The regional haze requirements work in tandem with the construction permit regulations. New source construction permits must ensure that the source’s emissions are consistent with the regional haze program requirements and making progress towards meeting the national goal of preventing any future and remedying any existing impairment of visibility. The reasonable progress requirements apply to new sources at the time the construction permit is granted or denied.⁸² Indeed, the regional haze rule requires that in deciding whether to grant an application for construction at a major source the state must ensure that the new emissions will be consistent with making reasonable progress toward the national visibility goal.⁸³ States need a rational basis for making such a determination, which must be based on a Four-FactorAnalysis.⁸⁴ Neither the Gas Treatment Plant permit nor the Liquefaction Plant application and proposed permit contained a Four-Factor Analysis.⁸⁵

Moreover, when developing a long-term strategy, the state must consider “[m]easures to mitigate the impacts of construction activities.”⁸⁶ DEC must not punt until the next planning period addressing emissions from these new sources.

Because DEC has not “select[ed] construction activities as a source category for an analysis of control measures, the SIP must nevertheless indicate how the state has considered measures to mitigate the impacts of construction activities”⁸⁷ from the AK LNG project.

Finally, on May 18, 2022, DEC staff notified NPCA’s outside counsel that “the AlaskaGasline Development Corporation’s (AGDC’s) Liquefaction Plant Construction Permit AQ1539CPT01 had been removed from hold status as of 5/11/2022” and that “[t]he Departmentis working to finalize the permit…”⁸⁸ Thus, while the Draft SIP contemplated the PSD permit for the Liquefaction Plant was on hold, it is not.

The fact that the project may be speculative does not provide DEC with an off-ramp to its legal obligations. DEC has granted one construction permit and appears to be on its way to grant a second. Once the construction permits are granted, AGDC (or another company it sells the permits to) will have the right to construct the project. DEC must correct the fatal errors in the Draft SIP and include enforceable mitigation requirements for emissions from the AK LNG Project before submitting this SIP to EPA.

VI. DEC’S RH SIP MUST INCLUDE ENFORCEABLE PROVISIONS FOR A SHUT DOWN OR A FOUR-FACTOR ANALYSIS FOR SO2 EMISSIONS FOR UNIT 1 AT THE HEALY POWER PLANT

A. DEC’S Incomplete Analysis on the Healy Power Plant

DEC’s Draft SIP explained that the Healy Power Plant is a coal-fired electrical plant located in Healy, Alaska, owned and operated by the Golden Valley Electric Association (GVEA), and provides electricity to the Fairbanks North Star Borough (FNSB) and Interior.⁸⁹ The fact that the source was examined prior to and during the first RH implementation period and was one of the facilities in the state to have BART emissions limitations applied under permit regulations,⁹⁰ does not exempt it from a Four-Factor Analysis in the second planning period. Indeed, as EPA’s 2019Guidance explains, the RHR “anticipates the re-assessment of BART- eligible sources under the reasonable progress Rule provisions,”⁹¹ and further instructs state SIP development by explaining that:

[S]tates may not categorically exclude all BART-eligible sources, or all sources that installed BART controls, as candidates for selection for analysis of control measures.⁹²

DEC’s Draft SIP explained that “SO2 controls at the Healy Power Plant include dry sorbent injection (DSI) on EU 1 and spray dry absorbers (SDA) on EU 2.”⁹³ DEC’s Draft SIP further explains that, “[t]he Healy Power Plant has been under a federally enforced Consent Decree since 2012. Under the stipulations of the Consent Decree, the Healy facility installed NOx controls on both Units 1 and 2 of the plant, in addition to SNCR equipment on Unit 2 in 2015. As per the agreement, GVEA must either install SCR control equipment on Unit 1 or decide to shut down the unit by December 31, 2022. After this decision is made, GVEA will have until December 31, 2024, to follow through with its agreement.”⁹⁴, ⁹⁵

B. The SIP Must Include A Requirement for Unit 1 to Shut Down

The Act, the RHR, and EPA guidance and memorandum all make clear that if a state opts to exempt sources from further control analysis based on a planned retirement schedule, the source must “have an enforceable commitment to be retired or replaced by 2028.”⁹⁶ The Act requires that “[e]ach state implementation plan . . . shall” include “enforceable limitations and other control measures” as necessary to “meet the applicable requirements” of the Act.⁹⁷ The RHR similarly requires each state to include “enforceable emission limitations” as necessary to ensure reasonable progress toward the national visibility goal.⁹⁸ Indeed, remaining useful life is only one of the four statutory factors that a state must consider when selecting the sources for which it will determine what control measures are necessary to make reasonable progress.⁹⁹ Allowing a state to avoid a Four-Factor Analysis based on potential that it may retire a unit would render the other statutory factors meaningless and violate the requirements of the Regional Haze Rule.¹⁰⁰ Therefore, where the state relies on a source’s plans to permanently cease operations or projects that future operating parameters (e.g., limited hours of operation or capacity utilization) will differ from past practice, or if this projection exempts additional pollution controls as unnecessary to ensure reasonable progress, then the state “must” make those parameters or assumptions into enforceable limitations.¹⁰¹

Only enforceable retirements in a SIP may alter the remaining useful life. DEC’s Draft SIP lacks any enforceable provisions for SO2 at Unit 1. While not saying so directly, DEC apparently assumes that it doesn’t need to do anything about SO2 controls for purposes of the Clean Air Act’s regional haze provisions because if GVEA decides to shut down Unit 1, then there will be no SO2 emissions. The issue with this assumption is that DEC’s Draft SIP lacks enforceable provisions in its SIP that requires Unit 1 to shut down. Similarly, DEC is not requiring controls in the RH SIP if GVEA decides to keep operating Unit 1. DEC is incorrect. DEC’s SIP must contain a provision that GVEA shall retire Unit 1 by December 31, 2024.

C. DEC Must Require the Source Reduce SO2 Emissions Down to at Least 0.15 lb/MMBtu

Furthermore, the potential for Unit 1 to retire in 2024 does not negate the need for a Four-Factor Analysis now as part of the 2nd round RH SIP. GVEA had previously evaluated DSI to achieve 0.18 b/MMBtu from an uncontrolled SO2 rate of 0.60 lb/MMBtu, but the coal being burned at the Healy power plant since 2015 has a much lower uncontrolled SO2 content of 0.38-0.45 lb/MMBtu than the uncontrolled SO2 content at the time of the BART analysis. A SO2 limit with the current DSI system should be able to achieve 0.20 lb/MMBtu at the minimum based on current coal (because during BART analysis, GVEA claimed uncontrolled SO2 was 0.60 lb/MMBtu and the DSI emission limit was 0.3 lb/MMBtu, which reflects 50% control, and 50% control from current uncontrolled SO2 in the coal would be about 0.20 lb/MMBtu). DEC must require that the source implement a pilot testing program to evaluate optimizing DSI to reduce SO2 emissions down to at least 0.15 lb/MMBtu as part of its second planning period obligations.¹⁰²

D. The Public Lacked Access to Emissions and Other Required Information

Additionally, the public lacked the information required to evaluate DEC’s Draft SIP. For example, in addition to its Draft SIP and supporting documentation, DEC posted questions and answers that pertain to the 2022 Regional Haze State Implementation Plan (SIP)/Regulations Proposed Revisions on its website.¹⁰³ Included on this page were several questions raised by the NPS, including several regarding the Healy power plant. DEC had a legal obligation to ensure Four-Factor Analyses were prepared for Units at this source and because it erroneously opted not to conduct the Four-Factor Analyses it did not require that the source submit the emission data to DEC. Without the actual emission data (which the source is required to keep on-site) it was not possible for the public to do a cost analysis.

Figure 1. Screenshots of Selected DEC Questions and Answers¹⁰⁴

It’s also disconcerting to the Organizations that DEC indicates in responses to NPS’s secondquestion about the current control efficiency at Unit 1 for the DSI system that DEC does notknow what control efficiency is being achieved.

E. The Organizations Share the FLM’s Concerns and Recommendations

The State must consult with the Federal Land Managers (“FLMs”) and look to the FLMs’ expertise regarding their resources and harms from air pollution to guide the state to ensure SIPs help restore natural skies.¹⁰⁵ The RHR requires that in “developing any implementationplan (or plan revision) or progress report, the State must include a description of how it addressedany comments provided by the Federal Land Managers.¹⁰⁶ These requirements are further clarified by EPA.¹⁰⁷

The Organizations share the NPS’s concerns regarding DEC’s SIP for Unit 1 at the Healypower plant. As discussed above, this unit is not effectively controlled for SO2, the primary haze‐causing pollutant for nearby Denali National Park and Preserve. Unless an enforceable shutdowndate is included in the SIP, Alaska must require a full Four‐Factor Analysis of SO2 controlopportunities for Healy Unit 1 – now. Such action would responsibly address haze‐causing SO2emissions from Healy Unit 1 in this planning period.¹⁰⁸¹⁰⁹

As seen in the below text box,¹¹⁰ which is an excerpt from DEC’s Draft SIP, although DEC’s response to the NPS’s comments partially agreed with the NPS’s comments, DEC failed to follow-up in its Draft SIP with enforceable provisions that require Healy EU 1 to shut down.

As explained above, DEC failed to include any provisions in finalizing its SIP. DEC’s SIP must include a shutdown for Unit 1, a Four-Factor Analysis for SO2, including a pilot study with an emission limit down to at least 0.15 lb/MMBtu.

F. Emission Limitations Must be in DEC’s SIP

Furthermore, the Organizations take issue with DEC’s suggested approach in its response to the NPS where it suggests it would allow GVEA to establish an enforceable emission limitation via a permit. DEC appears to suggest its approach is consistent with EPA’s Guidance Document. It is not. DEC must not rely on arguments that a source is “effectively controlled.”¹¹¹ DEC is misinterpreting EPA’s 2019 Guidance on “effectively controlled” sources and/or failing to provide analysis to support their determinations. EPA’s 2019 Guidance states that it may be reasonable for a state not to select an “effectively controlled source” for controls in its regional haze plan, but EPA was referring to sources which had pollution controls installed recently tomeet a Clean Air Act requirement for which there is a low likelihood of technological advancementin controls that could provide further reasonable progress.¹¹² Even for sources with recent pollutioncontrols installed or that are otherwise effectively controlled, EPA’s 2019 Guidance still requiresthat a state that does not select such a source for evaluation of controls to meet reasonable progress to “explain why the decision is consistent with the requirement to make reasonable progress, i.e., why it is reasonable to assume for the purposes of efficiency and prioritization that a fullfour-factor analysis would likely result in the conclusion that no further controls are necessary.”¹¹³ Moreover, SIPs that rely on the “effectively controlled” argument, must show that a Four-Factor Analysis would likely result in the conclusion that no further controls are necessary.¹¹⁴

Indeed, EPA has previously indicated that scrubber and SCR systems should be assessed for upgrades and that these upgrades are likely very cost-effective.¹¹⁵ EPA’s 2021 Clarification Memo underscores this point making clear that in evaluating reasonable progress for all sources, states should consider the “full range of potentially reasonable options for reducing emissions . . . [and] may be able to achieve greater control efficiencies, and, therefore, lower emission rates, using their existing measures.”¹¹⁶ Therefore, a state must first subject a source to a Four-Factor Analysis under section 51.308(f)(2)(i) before it is able to determine whether there are no emission reducing options available (including upgrades to existing controls).

VII. WE URGE DEC TO REWORK AND RENOTICE ITS PROPOSED VISIBILITY PROTECTION AREA REGULATIONS

While DEC’s Draft SIP narrative document recognized that under 40 C.F.R. § 51.308(f)(2)(iv)(B), states are required to develop measures to mitigate the impacts of construction activities, it suggested that “DEC has considered the impact of construction activities on visibility in Alaska’s Class I areas”¹¹⁷ and since “Alaska’s Class I areas are remote with little to no significant construction activities” ….“[b]ased on this general knowledge of growth and construction activity in Alaska, and without conducting extensive research on the contribution of emissions from construction activities on visibility, DEC believes that current state and federal regulations already adequately address this emission source.”¹¹⁸ Therefore, DEC concluded that it will use a collection of “additional information to be collected in the future, especially during permit reviews, that will help further evaluate construction activities on visibility.”¹¹⁹ As discussed below, DEC’s Draft SIP fails to fully explain all the regulatory provisions in its Draft SIP or how its approach adheres to the states obligations to mitigate emissions from construction activities.

Moreover, while perhaps well-intentioned, as discussed in this section DEC’s proposed stationary source regulations fail to meet the requirements of the Act and the RHR, lack the required supporting analysis and rational required for public review and comment and EPA’s approval. DEC must withdraw, rework and repropose these regulations prior to submittal to EPA.

A. Legal Requirements Applicable to DEC’s Proposed Regulations

1. Regional Haze Regulations and Stationary Source Regulations

The Act and RHR prohibit a state from adopting regulations that allow new constructionwithout ensuring that the source’s emissions are consistent with the RH program requirementsand making progress towards meeting the national goal of preventing any future, and remedyingany existing, impairment of visibility. The reasonable progress requirements apply to existing andnew sources.¹²⁰ Indeed, the RHR requires that in deciding whether to grant an application for construction or modification at amajor source the state must ensure that the new emissions will be consistent with makingreasonable progress toward the national visibility goal.¹²¹ States need a rational basis for makingsuch a determination, which must be based on a Four-Factor Analysis.¹²² The reasonable progress requirements apply to all sources. The State’s issuance of a permit to construct orissuance of an operating permit under Title V of the Clean Air Act¹²³ does not exempt a source from the regional haze program.¹²⁴ The source is subject to the reasonable progress requirements in both permit programs. The state must ensure the Four-Factor Analysis isconducted at the time of construction. Neither the Act nor EPA’s rules provide an “off-ramp” for asource in this situation. A state cannot exempt a source from the reasonable progress requirements via a construction permit or a Title V permit.

Moreover, when developing a long-term strategy a state must consider and base final decisions on “[m]easures to mitigate the impacts of construction activities.”¹²⁵ As the FLM’s pointed out during the first round of RH SIPs, the states often ignored these requirements and thus Round 1 RH SIPs may lack provisions to mitigate the impacts of emissions from new and modified sources.¹²⁶ EPA’s 2019 Guidance made clear that “[i]f the state does not select construction activities as a source category for an analysis of control measures, the SIP must nevertheless indicate how the state has considered measures to mitigate the impacts of construction activities.”¹²⁷

State SIPs must include provisions to ensure that emissions limitations for new and modified sources ‒ including Four-Factor Analyses and necessary practically enforceable controls ‒ must be considered and included during a state’s decision on whether to grant an application for a construction permit. The RH SIPs must also include the necessary mitigation and emission limitations from the permit terms and conditions to make them enforceable in the SIP.

Additionally, as the RH rule requires the long-term strategy include measures tomitigate the impacts of emissions construction activities, the emissions from a new or modifiedsource must be limited, otherwise the new emissions will not be consistent with making reasonable progress. For example, when a source proposes to switch fuel from coal to natural gas, a state must not approve construction permits that fail to apply the Act’s Four-FactorAnalysis requirement and resulting mitigation measures. In the absence of such analysis andassociated requirements, the construction or modification of a facility may fail to meet the Act’s provisions to prevent future visibility impairment, as well as the Act’s anti-backsliding provision.¹²⁸

2. The Clean Air Act’s Anti-Backsliding Provision

The Clean Air Act’s anti-backsliding provision provides that “[t]he Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress . . . or any other applicable requirement of this chapter.”¹²⁹ The anti- backsliding provision prohibits plan revisions that would interfere with attainment of the NAAQS or other “applicable requirements” of the Act. Section 110(l)prohibits plan revisions that would interfere with any applicable requirement, including the regional haze program requirements, and the Act’s “applicable requirement[s]” includethe regional haze program’s reasonable progress requirements.

When determining whether a plan revision interferes with NAAQS attainment, EPA has interpreted section 110(l) as preventing plan revisions that would increase overall air pollution or worsen air quality. For example, the Eleventh Circuit has upheld EPA’s section 110(l)interpretation as prohibiting plan revisions that would increase emissions or worsen air quality.¹³⁰ In Kentucky Resources Council, Inc. v. EPA, 467 F.3d 986 (6th Cir. 2006), EPA interpreted section 110(l) as allowing the agency to approve a plan revision that weakened some existing control measures while strengthening others, but only “[a]s long as actual emissions in the air are not increased.”¹³¹ The court upheld EPA’s interpretation, which “allow[ed] the agencyto approve a [state implementation plan] SIP revision unless the agency finds it will make the airquality worse.”¹³² The Seventh Circuit has also upheld EPA’s interpretation.¹³³ Moreover, in a discussion regarding a challenge to the Nevada regional haze plan, the Ninth Circuit suggestedthat a haze plan that “weakens or removes any pollution controls” would violate section 110(l).¹³⁴

B. DEC’s Proposed Amendments to its Stationary Source Regulations

In addition to proposing to expand the geographic coverage of its Visibility Protection Area by amending 18 AAC50.025(a),¹³⁵ DEC also proposes regulatory amendments to its stationary source permitting regulations. Specifically, 18 AAC 50,Article 2 would be amended by adding a new section to read:

18 AAC 50.265 Additional requirements for construction or operation of Title V permitted sources and operation of minor stationary sources within the regional haze special protection area. In accordance with Volume II, Section III.K.13.H. of the State Air Quality Control Plan, adopted by reference in 18 AAC 50.030, in addition tomeeting all requirements in 18 AAC 50 as applicable, all stationary sources that requirea permit, are located or operating within the area defined in 18 AAC 50.025(a)(4), and contain fuel burning equipment or industrial processes, shall:

(1) maintain onsite for 10 years, records of any maintenance to any significant emissions unit that has or may have an effect on any emission that affects visibility of Class I areas, including critical maintenance that has occurred or is planned to occur, including all schedules, practices, and maintenance records for each significant emissions unit and control device according to the manufacturer’s emission-related written instructions;

(2) if the applicant has not previously submitted the information necessary for the state to compile the national emission inventory as required in 40 C.F.R. 51, Subpart A, as revised as of July 1, 2022, and adopted by reference, then include that information in accordance with 18 AAC 50.200; and

(3) upon request by the department, submit copies of the information required under (a)(1) of this section;

(4) ensure that an application for a construction permit, new permit, permit renewal, or permit modification specifically addresses information related to possible impacts on the reasonable further progress goals for Class I areas, as identified in the State Air Quality Control Plan, adopted by reference in 18 AAC 50.030; in addition to the requirements found in Article 3 and Article 5 of this chapter, as applicable, the application must also include:

(A) anticipated equipment major maintenance schedules, if applicable;
(B) a best estimate of projected equipment life of significant emissions units, if known; for new construction, a permit requirement will be included to collect this information once an emissions unit is installed;
(C) an assessment of whether or not emissions resulting from the proposed project may impact the state’s reasonable further progress goals; and
(D) a description of mitigation measures to minimize any identified adverse impacts to the state’s reasonable further progress goals.

(5) include mitigation measures to minimize any potential adverse impacts identified. (Eff./ /2021, Register)¹³⁶

C. DEC’s SIP Narrative Failed to Fully Disclose the Full Extent of Its Proposed Regulatory Amendments

Of significant concern to the Organizations is that DEC’s SIP narrative failed to fully disclose and explain the extent and scope of the proposed additions to its regulations. The SIPnarrative merely provided the following explanations:

Section of the SIP Narrative

Verbatim Excerpt from the SIP

Regional Haze Visibility Protection Area

The RH-VPA will be used to identify new development and sources for more detailed haze-related data reporting/tracking and to require additional control measures should they become necessary in the future.¹³⁷

Operating Permit Program and Minor Source Permit Program On- Going and Future Considerations¹³⁸

DEC’s Air Quality Permit program is expanding its record keeping, reporting, andapplication requirements to include additionalinformation for those sources that may belocated in the proposed

RH-VPA to assist in meeting 40 C.F.R. 51.308(f)(2)(iv). DEC would use the additional information attained to assist withthe required 5-year progress reports, the Plans for future implementation periods, and meeting requirements under 40 CFR

51.308(f)(3).¹³⁹

DEC’s Public Notice explains that “[i]f adopted, DEC will submit the applicable regulation revisions to the U.S. Environmental Protection Agency (EPA) for inclusion in the approvedSIP.”¹⁴⁰

D. DEC’s Proposed Regulations Are Vague, Unenforceable and Less Stringent Than Clean Air Act and EPA’s RHR

The Organizations have numerous concerns about DEC’s proposed regulations.

First, the regulations exempt a new source constructing or an existing source modifying itsoperations from the required Four-Factor Analysis requirement.

DEC’s proposed regulations fail to require that the permit applicant submit the information necessary for a Four-Factor Analysis. While the proposed regulations require that the applicant submit certain information, it does not require the four- factors:

Second, it is unclear what sources DEC intends the regulation applies to, this language is broad and vague (“ensure that an application for a construction permit, new permit, permit renewal, or permit modification specifically addresses information related to possible impacts on the reasonable further progress goals for Class I areas, as identified in the State Air Quality Control Plan, adopted by reference in 18 AAC 50.030; in addition to the requirements found in Article 3 and Article 5 of this chapter, as applicable”). It appears to cover all sources and all permits regardless of size and operations.

Third, the proposed regulations allow the source to describe what it thinks the measures are to minimize any identified adverse impacts to the state’s reasonable further progress goalsand to describe them in the application. There is no role in the regulation for DEC to review what apermit applicant submits. This is not how a Four-Factor Analysis is conducted.

Fourth, DEC’s Draft SIP must also demonstrate that it won’t worsen air quality under section 110(1) of the Act, which it has not done.

Fifth, DEC is proposing to amend its operating permit regulations, and it failed to providenotice to the public that it was doing so, and it did not provide notice of which regulation it wouldamend. It must renotice that regulation.

Sixth, regarding the emission inventory provision, DEC should add that this provision applies to “subsequent inventories” as well.

Seventh, the State’s intent is not clear regarding the regulatory provision that covers maintenance activities.

Eighth, regarding the structure of the regulation, it is unclear how provision (5) of the regulation works in relation to provision (4)(d); and it is also unclear why there is an “and” between provisions (2) and (3).

Ninth, as commented above, maintaining records onsite is problematic because the public lacks access.

Tenth, how is “significant emissions unit” defined in (1), the Draft SIP neither includes a definition of this phrase nor indicates if one refers to another place in the existing SIP to find the definition.

Eleventh, the Draft SIP neither defines the terms and phrases used throughout subparagraph (1) nor does it explain how DEC intends to interpret and implement the provisions herein “has or may have an effect on any emission that affects visibility of Class I areas, including critical maintenance that has occurred or is planned to occur, including all schedules, practices, and maintenance records for each significant emissions unit and control device according to the manufacturer’s emission-related written instructions”?

It is unclear why DEC is advancing these regulations. The terse explanations DEC provided for the new regulations¹⁴² are not germane to the majority of the provisions of the new regulations.

The regulations read as though DEC is trying to replace the Clean Air Act’s national goal of the prevention of any future impairment of visibility¹⁴³ by introducing a paperwork tracking exercise through its area, minor, major source¹⁴⁴ constructionand operation permit programs to serve as offramps to the statutory and regulatory requirements. DEC’s approach is flawed in its entirety and it is unclear why but for reasons of evading the regional haze mitigation control and other federal air regulatory obligations thestate is pursuing these regulations.

Should the state pursue these regulations in part by addressing the issues raised herein, it mustprovide a rational basis for the regulations and provide the public with a clear explanation of howsuch requirements intersect and are not at odds with federal Clean Air Act requirements including regional haze regulations.

Given the numerous issues, questions raised, and lack of clarity in the proposed regulations, we urge DEC to delay finalizing this regulation, and take the time necessary to reworkthe regulation to develop an approvable regulation. Then, provide a second round of public noticeand comment before submitting to EPA.

VIII. DEC MUST ANALYZE ENVIRONMENTAL JUSTICE IMPACTS OF ITS REGIONAL HAZE SIP, AND SHOULD ENSURE THE SIP WILL REDUCE EMISSIONS AND MINIMIZE HARMS TO DISPROPORTIONATELY IMPACTED COMMUNITIES

DEC has federal obligations to meaningfully consider and advance environmental justice in its regional haze SIP. Unfortunately, theDraft SIP entirely lacks any discussion and consideration of environmental justice.

A. DEC Completely Ignored the Environmental Justice Communities Impacted by Alaska’s Polluting Sources

Sources that harm the air in our treasured Class I areas are also located in environmental justice areas and by evaluating the vulnerable communities and countiesimpacted by these sources, we believe DEC will identify emission-reducing options that if required, will improve air quality and help achieve reasonable progress in this round of regional haze rulemaking. Historically, conservation and environmental work has concerned itself with protecting nature from people and has thus “siloed” its work (e.g., mainstream conservation vs. environmental justice.) While this siloed approach has led to the protection of many vulnerable habitats, it ignores the reality that people live in concert with and are a part of nature; to protect one and not the other is a job half done. By considering viewshed protection and environmental justice at the same time, we can collectively begin to dismantle the silos that exist in conservation and environmental work and chart a new path forward.

B. DEC Can Facilitate EPA’s Consideration of Environmental Justice to Comply with Federal Executive Orders

There are specific legal grounds for considering environmental justice when determiningreasonable progress controls. Under the CAA, states are permitted to include in a SIP the measures that are authorized by state law but go beyond the minimum requirements of federal law.¹⁴⁵ Ultimately, EPA will review the Final Haze Plan that Alaska submits, and EPA will be required to ensure that its action on Alaska’s Haze Plan addresses any disproportionateenvironmental impacts of the pollution that contributes to haze. Executive Orders in place since 1994 require federal executive agencies such as the EPA to:

[M]ake achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations”¹⁴⁶

On January 27, 2021, the current Administration signed “Executive Order on Tackling theClimate Crisis at Home and Abroad.”¹⁴⁷ The new Executive Order on climate change and environmental justice amended the 1994 Order and provides that:

It is the policy of [this] Administration to organize and deploy the full capacity of its agencies to combat the climate crisis to implement a Government-wide approach that reduces climate pollution in every sector of the economy; … protects public health … delivers environmental justice …[and that] … [s]uccessfully meeting these challenges will require the Federal Government to pursue such a coordinated approach from planning to implementation, coupled with substantive engagement by stakeholders, including State, local, and Tribal governments.¹⁴⁸

Alaska can facilitate EPA’s compliance with these Executive Orders by considering environmental justice in its SIP submission.

C. Alaska’s Ignores EPA’s Regional Haze Guidance and Clarification Memo, which Direct States to Take Environmental Justice Concerns and Impacts Into Consideration

EPA’s 2021 Clarification Memo directs states to take into consideration environmental justice concerns and impacts in issuing any SIP revision for the second planning period.¹⁴⁹ EPA’s 2019 Regional Haze Guidance for the Second Planning Period specifies, “States may also consider any beneficial non-air quality environmental impacts.¹⁵⁰ ”This includes consideration of environmental justice in keeping with other agency policies. For example, EPA also pointed to another agency program that states could rely upon for guidance in interpreting how to apply the non-air quality environmental impacts standard:

When there are significant potential non-air environmental impacts, characterizing those impacts will usually be very source- and place-specific. Other EPA guidance intended for use in environmental impact assessments under the National Environmental Policy Act may be informative, but not obligatory to follow, in this task.¹⁵¹

Additionally, a collection of EPA policies, guidance and directives related to the National Environmental Policy Act (“NEPA”) is available at https://www.epa.gov/nepa/national-environmental-policy-act-policies-and-guidance. One of these policies concerns Environmental Justice.¹⁵² DEC should consider these sources of information in conducting a meaningful environmental justice analysis.

D. EPA Has a Repository of Directives and Material Available for DEC to Use in Considering Environmental Justice

In addition to the NEPA guidance directives referenced above, EPA provides a wealth ofadditional material.¹⁵³ The most important aspect of assessing environmental justice is to identify the areas where people are most vulnerable or likely to be exposed to different types of pollution. EPA’s EJSCREEN tool can assist in that task. It uses standard and nationally consistent data to highlight places that may have higher environmental burdens and vulnerable populations.¹⁵⁴

E. EPA Must Consider Environmental Justice When it Reviews and Takes Action on Alaska’s SIP

As occurred in the first planning period, if a state fails to submit its SIP on time, or if EPA finds that all or part of a state’s SIP does not satisfy the Regional Haze regulations, thenEPA must promulgate its own Federal Implementation Plan to cover the SIP’s inadequacy (“FIP”). Should EPA promulgate a FIP that reconsiders a state’s Four-Factor Analysis, it iscompletely free to reconsider any aspect of that state’ analysis. The two Presidential ExecutiveOrders referenced above require that federal agencies integrate environmental justice principlesinto their decision-making. EPA has a lead role in coordinating these efforts, and recently EPA Administrator Regan directed all EPA offices to clearly integrate environmental justiceconsiderations into their plans and actions.¹⁵⁵ Consequently, should EPA promulgate a FIP forAlaska sources, it has an obligation to integrate environmental justice principles into its decision-making. The non-air quality environmental impacts of compliance portion of the thirdfactor, is a pathway for doing so.

F. DEC Must Consider Environmental Justice under Title VI of the Civil Rights Act

As EPA must consider environmental justice, so must DEC and all other entities thataccept Federal funding. Under Title VI of the Civil Rights Act of 1964, “no person shall, on theground of race, color, national origin, sex, age or disability be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity…”. DEC has an obligation to ensure the fair treatment of communities that have been environmentally impacted by sources of pollution. That means going beyond the flawed analysis conducted and ensuring “meaningful involvement” of impacted communities; environmental justice also requires the “fair treatment” of these communities in the development and implementation of agency programs and activities, including those related to the SIP.

DEC must conduct a thorough analysis of the current and potential effects to impactedcommunities from sources considered in the SIP as well as those sources identified by commentersand other stakeholders but not reviewed by DEC. By not conducting this analysis and including thebenefits of projected decline in emissions to these communities in their determination of theincluded emission sources, DEC is not fulfilling its obligations under the law. Moreover, the state is making a mockery of Title VI by not using the SIP requirements to bring about the co-benefits of stronger reductions measures and reduce harms based on continued emissions.

G. DEC’s Lack of Any Effort on Environmental Justice are Wholly Inadequate to Protect People Living in Environmental Justice Communities in Alaska Affected by Alaska’s Sources

DEC’s Draft SIP lacks any consideration of environmental justice. DEC failed to consider any sources that impact the environmental justice communities. Moreover, DECs Draft SIP fails to include enforceable emission limitations for the polluting sources that impact the environmental justice communities. Consistent with the legalrequirements, government efficiency, and the year’s on injustice these communities have beensubjected to from Alaska’s sources, we urge DEC to fully and meaningfully consider all sources thatimpact the environmental communities. In establishing emission limitations in its SIP, DEC must reduce impacts at both the Class I areas and environmental justice communities.

CONCLUSION

We appreciate DEC’s consideration of these comments and ask the agency to renotice and revise its SIP accordingly. Please do not hesitate to contact us with any questions.

Sincerely,

Jim Adams
Alaska Regional Director
National Parks Conservation Association
750 W. 2nd Ave, Suite 205
Anchorage, AK 99501

Michael B. Murray
Chair
Coalition to Protect America’s National Parks
2 Massachusetts Ave NE Unit 77436
Washington, DC 20013

Sara L. Laumann
Principal
Laumann Legal, LLC.
Counsel for National Parks Conservation Association
3800 Buchtel Blvd. S. #100236
Denver, CO 80210

cc:
Krishna Viswanathan, Director, Air and Radiation Division EPA Region 10 SabrinaArgentieri, Attorney-Advisory, Air Enforcement Division, EPA

List of Exhibits

Howard Gebhart, Technical Review of Visibility Modeling for the Second Round of Regional Haze State Implementation Plans: State of Alaska, (May 2022),https://drive.google.com/file/d/1E1r5S_J8X5SFIV4y2WKCIf8m0Fb4- Te5/view?usp=sharing.
Howard Gebhart Resume,https://drive.google.com/file/d/1XjaZiiysAOdtOZVCE_YXMqcEGyzhiLnF/view ?usp=sharing.
Alaska DEC, Amendments to: State Air Quality Control Plan, Volume III: Appendix III.K.13, 2021 Alaska Regional Haze State Implementation Plan, Appendix to Section III.K.13.K, Public Notice Draft (March 30, 2022),https://drive.google.com/file/d/1KW4uao4jKhnhhHt6UAefhqBJjV2XjQx1/view ?usp=sharing
NPS Formal Consultation Call with Alaska Department of Environmental Conservation for Regional Haze SIP Development, (July 19, 2021), at Appendix III.K.13.K-17 – Appendix III.K.13.K-42, https://drive.google.com/file/d/1mO4-yXNxrMYGam5ZUrRyW3UktIjWw1gn/view?usp=sharing.
Vicki Stamper, Megan Williams, “ OIL AND GAS SECTOR REASONABLE PROGRESS FOUR-FACTOR ANALYSIS OF CONTROLS FOR FIVE SOURCE CATEGORIES: NATURAL GAS-FIRED ENGINES, NATURAL GAS-FIRED TURBINES, DIESEL-FIRED ENGINES, NATURAL GAS- FIRED HEATERS AND BOILERS, FLARING AND INCINERATION, (March 6, 2020),https://drive.google.com/file/d/1VBvzhiaTwAaA1X5Qd5O33a9OgKQtxF40/vie w?usp=sharing.
Letter from National Parks Conservation Association, Western Environmental Law, to Sandra Ely, Michael Baca, Mark Jones, and Kerwin Singleton New Mexico Environment Department, “Comments responding to 4-factor analysis submittals from identified oil & gas operators,” (July 10, 2020), https://drive.google.com/file/d/1DZ_IogXIkjcN4ms61PWFuEA16fU9Ha68/vie w?usp=sharing, with enclosure: Vicki Stamper, Megan Williams, “Assessment of Cost Effectiveness Analyses for Controls Evaluated Four – Factor Analyses for Oil and Gas Facilities For the New Mexico Environment Department’s Regional HazePlan for the Second Implementation Period,” (July 2, 2020).
Letter from National Parks Conservation Association, Center for Biological Diversity, and Northern Alaska Environmental Center Comments on Preliminary Prevention of Significant Deterioration Permit No. AQ1539CPT01, Proposed in response to Application from Alaska Gasline Development Corporation to Construct a Liquefaction Plant in Nikiski, Alaska, (Dec. 10, 2020), https://drive.google.com/file/d/18Oym9YO1c7J1XgHAUjIQRXkLxIy3u-Y3/view?usp=sharing.
Email from Dave F. Jones, Environmental Engineering Associate I, ADEC, Air Quality, to, Sara Laumann, Principal, Laumann Legal, LLC., Counsel to NPCA, (May 18, 2022), https://drive.google.com/file/d/1Vkq2CpxFomxAieCRrVa7QpGgMy1cdfi9/view ?usp=sharing.
USA v. Golden Valley Electric Association Inc. and Alaska Industrial Development and Export Authority, (D.Alaska), Consent Decree,https://www.epa.gov/enforcement/consent-decree-golden-valley-electric-association-inc-and-alaska-industrial-development, and https://drive.google.com/file/d/1hQDtLnyV8bagi-9o9RknOsuK84vyNonH/view?usp=sharing.

EXHIBIT 1

Technical Review of Visibility Modeling for the Second Round of Regional Haze State Implementation Plans: State of Alaska

By: D. Howard Gebhart, May 2022

Introduction and Background

This report provides a technical review of the visibility modeling effort conducted by the State of Alaska to aid in development of the second-round regional haze State Implementation Plan (SIP).

Technical documents reviewed included the draft Alaska regional haze SIP and supporting technical appendices.1

The modeling effort was used to inform the Alaska Department of Environmental Conservation (ADEC) about the emission sources contributing to visibility impairment atdesignated Class I areas within Alaska. Emission sources identified via the modeling effort as contributing to visibility impairment were then subject to a review of additional emission controlmeasures that could reduce visibility precursor emissions, known as the “four-factor analysis”.

The US Environmental Protection Agency (EPA) has developed guidance stipulating the minimum requirements for an approvable regional haze SIP2, EPA indicates that states shouldselect an appropriate threshold for the four-factor analysis that captures “a meaningful portion ofthe state’s total contribution to visibility impairment at Class I areas”. In the draft SIP proposed by Alaska, only six in-state emission sources were identified for the four-factor emissions control analysis. Alaska also limited the four-factor emissions control analysis to emission sources releasing sulfur dioxide (SO2) and did not evaluate the potential benefits of controlling sources of nitrogen oxide (NOx) emissions.

In this report, the focus is on Alaska’s Class I monitors from the Interagency Monitoring of Protected Visual Environments (IMPROVE) program where the potential exists for industrial point source emissions to contribute to visibility impairment. At Denali National Park and Preserve (DNPP), there are two IMPROVE monitors, one located at near the main DNPP entrance (DENA1) and other south of the DNPP boundary in the Trapper Creek area (TRCR1). The other Class I area of interest is Tuxedni National Wildlife Refuge (TUXE1) along the western shore of Cook Inlet and across from the Kenai-Soldotna region. Other Class I areas in Alaska are at remote locations and are far removed from larger point source emissions.

1 https://decalaska.gov/air/anpms/regionalhaze/

2 Clarifications Regarding Regional Haze State Implementation Plans for the Second Implementation Period, July 8, 2021

General Comments

There are several overriding issues with the visibility modeling effort conducted in support of the second-round Alaska regional haze SIP. These issues are discussed below.

In order to conform with EPA’s regional haze guidance, the criteria used to select emission sources subject to the “four-factor” emissions control analysis needed to be appropriately inclusive.Simply put, the ADEC analysis needed to identify those existing emission sources that contributed to a “meaningful portion” of the ongoing visibility impairment.

In Alaska, the modeling and subsequent analysis identified only six emission sources where the four-factor emissions control analysis has been performed. There is no dispute that the six emission sources identified by Alaska are important contributors to visibility impairment and these sources were appropriately identified for the four-factor emissions control analysis. However, the question is whether the six emission sources identified by Alaska were appropriately inclusiveto identify a “meaningful portion” of the existing visibility impairment.

In addition to limiting the four-factor emissions control analysis to a small subset of emission sources, Alaska also erred by limiting the four-factor analysis to only SO2 emissions. Anthropogenic visibility impairment from point source emissions is generally attributable to both sulfate (linked to SO2 emissions) and nitrate (linked to NOx emissions). By ignoring the contribution of NOx emissions in the draft regional haze SIP, Alaska has failed to meet the regulatory burden to control a “meaningful portion” of the existing visibility impairment.

Alaska’s approach was improper in that the scope of the “four-factor” emissions controlanalysis excluded other important point source emissions that also contribute to visibility impairment. In order to improve current visibility conditions and meet the national goal to eliminate all anthropogenic visibility impairment before 2064, the Alaska SIP planning effort needed to identify all important contributing sources beyond just the top contributing sources.ADEC would have accomplished this goal if it had simply expanded its analysis to capture a broader grouping of sources, especially larger NOx emission sources.

Technical Discussion

SO2 Controls vs. NOx Controls

A DEC attempts to justify its choice to focus on SO2 emission controls in part based on its evaluation of the existing visibility impairment at Alaska’s Class I areas. The IMPROVE monitoring data do show that the existing light extinction at Alaska’s Class I areas is presentlydominated by sulfate extinction.3

However, the IMPROVE monitoring data by itself does not tell the whole story and further investigation into the actual sources contributing to the measured sulfate is needed. For example,Alaska reports in the draft SIP that the sulfate extinction component to visibility impairment is dominated by volcanic emissions at the more remote Alaska IMPROVE monitoring sites.4 Specifically, ADEC has identified that volcanic contributions generate roughly 50% of the measured sulfate at TRCR1 on the most-impaired days (Figure III.K.13.G-21) and roughly 85% of the measured sulfate at TUXE1 on the most-impaired days (Figure III.K.123.G-22).

ADEC appears to have ignored the large volcanic contribution to sulfate extinction when selecting which industrial point source emissions to include in the four-factor emissions controlanalysis. As stated previously, Alaska has focused the emissions control program presented in the draft SIP exclusively on point source SO2 emissions. In reality, by addressing only SO2 emissions, Alaska’s planned approach attacks emissions sources that make only a partial contribution to theongoing visibility point source impairment. A broader approach to capture additional emission sources and especially larger NOx emission source is required.

The failure to appropriately include NOx emission controls in the second-round Alaskaregional haze SIP is especially troublesome at TUXE1. If Alaska had attempted to correct the sulfate concentrations on the most-impaired days to remove the volcanic contribution (85% based on Figure III.K.13.G-22), it would have become evident that the extinction attributable to nitrate would have been roughly equivalent to the corrected sulfate extinction. Visibility improvements at TUXE1 in particular were penalized by Alaska’s choice to focus only on SO2 emission controls.

The Alaska regional haze SIP presents data which actually showed that NOx emission controls had the potential to be effective at improving visibility conditions at TUXE1. In the draft SIP (Ranking of Potential Contributions by Facility)5, ADEC reports the potential for each point source to contribute to visibility impairment based on the Weighted Emissions Potential (WEP) modeling results. Based on a review of the TUXE1 modeling results6, the modeled WEP for NOx emissions at the “Top-Ten” emission sources are reported to be roughly equal to the modeled WEP based on SO2 emissions for the sources impacting TUXE1.

In addition, based on the emissions-to-distance ratios (Q/D), the “Top-Ten” emission sources that contribute to visibility impairment at TUXE1 all had larger Q/D based on NOxemissions compared to SO2 emissions.⁷ For NOx emissions, the Q/D for the “Top-Ten” TUXE1 sources was 1.0 or greater whereas the SO2 Q/D was always 0.6 or less. This result occurs becausethe NOx emissions for emission sources affecting visibility at TUXE1 are significantly larger than the SO2 emissions from the same sources with nine of the “Top-Ten” sources showing 2017 NOxemissions above 100 tons per year (tpy). The largest NOx emissions identified by ADEC occur atthe Hilcorp Alaska LLC Swanson River Field, with total NOx emissions of 2,121 tpy.8

On a statewide basis, ADEC projects 2028 NOx emissions from the oil and gas sector at 42,703tpy.9 The 2028 ADEC emissions projection for the oil and gas sector may actuallyunderestimate future oil and gas emissions because the draft SIP indicates zero growth in oil and gasemissions between 2016 and 2028. Alaska fails to explain why the draft regional haze SIP contemplates zero growth in emissions from the oil and gas sector. Addressing reasonable growth within the oil and gas sector and controlling future emissions from these operations will be critical to Alaska’s ability to “prevent future visibility impairment” as required under the regional hazeregulations.

All of the above leads to the reasonable conclusion that NOx emission controls have thepotential to be effective at improving visibility conditions at TUXE1. However, the Alaska regionalhaze SIP has failed to consider such controls in their second-round strategies to improve regional haze and as such, Alaska’s regional haze program falls short of the legal requirement to address a“meaningful portion” of the ongoing visibility impairment.

Denali National Park & Preserve and Healy Power Plant

The visibility situation at DNPP and specifically the DENA1 IMPROVE monitor differ from what is occurring at other Alaska IMPROVE monitoring locations. DENA1 is significantly impacted by local emissions, specifically SO2 and NOx emissions released at the nearby Healy Power Plant (Healy). Healy is located about 14 kilometers (km) from the DENA1 IMPROVE monitor with reported 2017 emissions of 296 tpy (SO2) and 231 tpy (NOx).¹⁰

The information presented in the draft SIP indicate that Healy is by far the largest point source contributor to visibility impairment at DENA1 based on the WEP modeling results.11 In fact, the Healy NOx WEP modeled for DENA1 exceeds the modeled SO2 WEP for the #2-ranked emission source (Aurora Energy LLC, Chena Power Plant) by about a factor of 3-4.

These data lead to a similar conclusion as expressed above for emission sources in Alaska that impact visibility, i.e., NOx emissions also contribute significantly to ongoing visibility impairment at DENA1 and other Alaska Class I areas. Alaska erred by ignoring NOx emissions inthe proposed control strategy, resulting in a missed opportunity to address and reduce the ongoing nitrate contribution to visibility impairment.

At a minimum, the four-factor emissions control analysis should have addressed NOx emission controls at the Healy Power Plant as ADEC’s own data showed Healy’s NOx emissions to be a substantial contributor to visibility impairment at DENA1. Other large NOx emission sources with a modeled WEP exceeding 1,000 at DENA1 on the most-impaired days included the North Pole Power Plant, Doyon Utilities LLC/Fort Wainwright, and the Chena Power Plant.12 Additional NOx emission controls at the above sources also needed to be evaluated and could have also resulted in visibility improvements at DENA1.

By focusing only on SO2 emission reductions, Alaska’s second-round regional hazeprogram falls short of the legal requirement to address a “meaningful portion” of the ongoing visibility impairment.

Visibility Screening Tool for New Industrial Sources

Alaska’s longer-term strategy for regional haze includes a proposed regulatory program that establishes a new “Visibility Protection Area”. The proposed area roughly runs through the more populated regions of Alaska from about Fairbanks on the north to Homer on the south. Most ofAlaska’s present industrial development lies in this zone and it is reasonably expected that most future industrial growth in Alaska would also occur within this region.

For the purpose of this report, information on the new “Visibility Protection Area” andassociated regulatory program has been taken from an ADEC PowerPoint presentation on the proposed second-round Alaska regional Haze SIP.13

Based on the information presented, ADEC indicates that new permit applications will be required to provide additional information with respect to visibility protection and address possible visibility impacts at DNPP and Tuxedni through a “screening tool”. Addressing the potential visibility impacts from new/modified sources is a good first step given that preventing additional visibility impairment from new/modified emission sources is critically important in Alaska where the current visibility is relatively clean.

Based on the information presented, the new regulatory program would apply to emission sources regulated under Title I (New Source Review/Prevention of Significant Deterioration) and Title V (Major Source Operating Permits). As such, it appears that new/modified emission sources qualifying as minor sources or minor modifications would escape regulation under this new program. My recommendation would be to strengthen the proposed program by removing the Title I/Title V requirement and extending the proposed program to all new/modified emission sources requiring an air quality construction permit on the basis that even minor sources might degrade visibility if located very close to the Class I area. A better approach would be to establish a Q/D threshold that would apply to any new/modified source locating within the new “VisibilityProtection Area” and the visibility impact analysis would be required for any new/modified source where the Q/D was greater than the threshold. For this program, ADEC could adopt the existingQ/D greater than 10 threshold which has already been published in the Federal Land Managers’ Air Quality Related Values Workgroup (FLAG) guidance.14

Lastly, Alaska must align the proposed “Visibility Protection Area” regulatory program with already existing legal requirements such as the PSD regulations and FLAG guidance. A source locating outside of the proposed “Visibility Protection Area” cannot be allowed to escape the visibility analysis contemplated by the PSD regulations and FLAG based solely on its physical location. A new/modified source that would otherwise require a technical review of visibilityimpacts must be required to perform the required visibility impact analysis regardless of location.

D HOWARD GEBHART
Environmental Compliance Section Manager

EDUCATION
M.S. Meteorology, University of Utah 1979
B.S. Professional Meteorology, Saint Louis University 1976

MEMBERSHIPS
Air & Waste Management Association
National Weather Association
Colorado Mining Association
Nebraska Industrial Council on Environment

EXPERIENCE SUMMARY

Mr. Gebhart has over 40 years’ experience in air quality permitting and compliancespecializing in issues technical and regulatory affecting regulated industries. Howard managesthe environmental compliance section at ARS, where he provides technical studies and evaluations; and prepares models, client permit applications, air emission calculations, and performs multi-discipline environmental audits. He is very experienced in working with the federal Clean Water Act, Clean Air Act, Resource Conservation and Recovery Act (RCRA),and similar programs.

Howard also acts as an Expert Witness in legal proceedings involving the Clean Air Act andis a recognized technical expert in air dispersion modeling.

PROJECT EXPERIENCE

- Manages the Environmental Compliance Section
- Produces and manages quality assurance documents including quality management plans and quality assurance project
- Provides technical studies and evaluations, including air dispersion modeling, permit application preparation, emissions inventories, regulatory analysis/interpretation, and environmental
- Prepares applications for new source permits under federal Prevention of Significant Deterioration (PSD) and state construction and operating permit
- Provides technical studies supporting Environmental Impact Statements (EISs) and Environmental Assessments (EAs) under the National Environmental Policy Act (NEPA).
- Performs air pathway evaluations for releases of hazardous air pollutants from Superfund sites, hazardous waste sites, and Models the potential consequences of accidental releases of hazardous materials.
- Performs multi-discipline environmental audits at regulated industrial
- Manages air quality and environmental permitting studies for biofuel (ethanol and biodiesel), oil & gas exploration and production, mining and minerals, general manufacturing, and a variety of other industries with experience representing both government and private-sector.

1
D. Howard Gebhart, Technical Review of Visibility Modeling for the Second Round of Regional Haze State Implementation Plans: State of Alaska, (May 2022), https://drive.google.com/file/d/1E1r5S_J8X5SFIV4y2WKCIf8m0Fb4-Te5/view?usp=sharing,(Exhibit 1) (“Gebhart Report”); D. Howard Gebhart Resume, https://drive.google.com/file/d/1XjaZiiysAOdtOZVCE_YXMqcEGyzhiLnF/view?usp=sharing (Exhibit 2).
2
Volume III: Appendix III.K.13, (2021), Alaska Regional Haze State Implementation Plan, Appendix to Section III.K.13.K, Public Notice Draft, (March 30, 2022) (“Draft SIP”), (Exhibit 3), https://drive.google.com/file/d/1KW4uao4jKhnhhHt6UAefhqBJjV2XjQx1/view?usp=sharing; NPS Formal Consultation Call with Alaska Department of Environmental Conservation for Regional Haze SIP Development, (July 19, 2021), at Appendix III.K.13.K-17 – Appendix III.K.13.K-42 (“NPS Formal Consultation Comments”), (Exhibit 4), https://drive.google.com/file/d/1mO4- yXNxrMYGam5ZUrRyW3UktIjWw1gn/view?usp=sharing.
3
42 U.S.C. § 7491(a)(1).
4
42 U.S.C. § 7491(g)(3).
5
42 U.S.C. § 7491(b)(2).
6
42 U.S.C. § 7491(b)(2).
7
42 U.S.C. § 7491(b)(2)(B); 40 C.F.R. § 51.308(d)(1)(i)(B).
8
82 Fed. Reg. 3,078, 3,083 (Jan. 10, 2017); see also id. at 3,096 (“states must evaluate and reassess all elements required by 40 CFR 51.308(d)”).
9
40 C.F.R. § 51.308(f)(2)(iv).
10
40 C.F.R. § 51.308(f)(1).
11
40 C.F.R. § 51.308(f)(2).
12
40 C.F.R. § 51.308(f)(3).
13
40 C.F.R. § 51.308(f)(6).
14
82 Fed. Reg. at 3,093 (emphasis added).
15
40 C.F.R. § 51.308 (f)(2)(ii)(A).
16
82 Fed. Reg. at 3,083; see also id. at 3,096 (“states must evaluate and reassess all elements required by 40 CFR 51.308(d)”).
17
42 U.S.C. § 7410(a)(2)(A).
18
See 40 C.F.R. § 51.308(d)(3) (“The long-term strategy must include enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the reasonable progress goals established by States having mandatory Class I Federal areas.”).
19
40 C.F.R. §§ 51.308(i); (d)(3) (“The long-term strategy must include enforceable emissions limitations, compliance schedules . . .”); (f)(2) (the long-term strategy must include “enforceable emissions limitations”); see also Memorandum from Peter Tsirigotis, Director, EPA Office of Air Quality Planning and Standards, to Regional Air Division Directors, Region 1-10, “Guidance on Regional Haze State Implementation Plans for the Second Implementation Period,” at 22 (Aug. 20, 2019), https://www.epa.gov/sites/production/files/2019-08/documents/8-20-2019_- _regional_haze_guidance_final_guidance.pdf (“2019 Guidance”) (“in selecting sources for control measure analysis,” the state may choose “not selecting sources that have an enforceable commitment to be retired or replaced by 2028”); id. at 34 (To the extent a retirement or reduction in operation “is being relied upon for a reasonable progress determination, the measure would need to be included in the SIP and/or be federally enforceable.”) (citing 40 C.F.R. § 51.308(f)(2)); 2019 Guidance at 43 (“[i]f a state determines that an in-place emission control at a source is a measure that is necessary to make reasonable progress and there is not already an enforceable emission limit corresponding to that control in the SIP, the state is required to adopt emission limits based on those controls as part of its long-term strategy in the SIP via the regional haze second planning period plan submission.”).
20
For example, in addition to the RHR requirements, states must also follow the SIP processing requirements in 40 C.F.R. §§ 51.104, 51.102.
21
40 C.F.R. § 51.308(i)(3).
22
Memorandum from Peter Tsirigotis, Director, Office of Air Quality Planning and Standards, to Regional Air Division Directors Regions 1-10, “Clarifications Regarding Regional Haze State Implementation Plans for the Second Implementation Period,” (July 9, 2019), at 2, https://www.epa.gov/visibility/clarifications-regarding-regional-haze-state-implementation-plans- second-implementation. (“2021 Clarification Memo”).
23
2021 Clarification Memo at 2.
24
2021 Clarification Memo at 3.
25
2021 Clarification Memo at 2.
26
2021 Clarification Memo at 13.
27
42 U.S.C. § 7491(g)(1); 40 C.F.R. § 51.308(f)(2)(i).
28
2021 Clarification Memo at 7.
29
2021 Clarification Memo at 8.
30
40 C.F.R. § 51.308(f)(2); 40 C.F.R. § 51.308(d)(3)(v)(F) (Enforceability of emission limitations and control measures).
31
2021 Clarification Memo at 13.
32
42 U.S.C. §§ 7491(a)(1), (b)(2).
33
40 C.F.R. § 51.308(f)(2); 40 C.F.R. § 51.308(d)(3)(v)(F) (Enforceability of emission limitations and control measures).
34
2019 Guidance at 42-43 (While NPCA and Sierra Club filed a Petition for Reconsideration regarding EPA’s issuance of the 2019 Guidance, it does not dispute the information in the Guidance referenced here regarding enforceable limitations, which cite to the “General Preamble for the Implementation of Title I of the Act Amendments of 1990, 74 Fed. Reg. 13,498 (Apr. 16, 1992)).
35
74 Fed. Reg. at 13,568.
36
42 U.S.C. §§ 7410(a)(2), 7491(b)(2); see also 40 C.F.R. § 51.308(d), (f).
37
2021 Clarification Memo at 3.
38
Gebhart Report at 2.
39
Gebhart Report at 2.
40
Gebhart Report at 2.
41
2021 Clarification Memo at 4, citing 2019 Guidance at 12.
42
2021 Clarification Memo at 4-5.
43
Gebhart Report at 2.
44
Gebhart Report at 2, citing Draft SIP at Figures III.K.13.D-2 (DENA1), III.K.13.D-6 (TRCR1), & III.K.13.D-14 (TUXE1).
45
Gebhart Report at 3, citing Draft SIP at Figures III.K.13.G-21 (TRCR1) & III.K.13.G-22 (TUXE1).
46
Gebhart Report at 3.
47
Gebhart Report at 3.
48
Gebhart Report at 3.
49
Gebhart Report at 3.
50
Gebhart Report at 3.
51
Gebhart Report at 3, citations omitted.
52
Gebhart Report at 4.
53
Gebhart Report at 4.
54
NPCA calculated Q using the 2017 NEI for non-EGUs and for power plants NPCA used 2019 AMDP (EPA Air Markets Data Program). This information is from the NPCA interactive map that provides users access to point and non-point source emissions data based on NPCA’s assessment of publicly available information curated to identify sources and industrial sectors of concern to visibility in Class I area national parks and wilderness areas. The sources identified likely merit review by states to determine whether and what emission reduction options are feasible to achieve reasonable progress towards the restoration of natural visibility at Class I areas, and otherwise benefit progress toward clean air in all of our communities. The map lets one visualize the locations and details of emission sources, the level of emissions of different pollutants, and the Class I areas potentially affected by each source. The interactive map also provides information on emissions from oil and gas infrastructure such as wells, drilling rigs, compressor stations, pipelines, and refineries at the county level. Additional layers are available to visualize the 8-hour Ozone (2015) nonattainment areas as well as vulnerable populations by county density, including people of color and people living below the poverty line., https://npca.maps.arcgis.com/apps/MapSeries/index.html?appid=73a82ae150df4d5a8160a2275591e4 5d.
55
Gebhart Report at 4, citing Draft SIP at Tables III.K.13.G-5 and G-6.
56
Gebhart Report at 4, citing Draft SIP at Tables III.K.13.G-5 and G-6.
57
Gebhart Report at 4.
58
Gebhart Report at 4.
59
40 C.F.R. § 51.308(f)(2)(i) (“The State should consider evaluating major and minor stationary sources or groups of sources, mobile sources, and area sources.”).
60
40 C.F.R. § 51.301 (emphasis added).
61
Gebhart Report at 4, citing Draft SIP Table III.K.13.E-2.
62
Gebhart Report at 4.
63
Gebhart Report at 4.
64
Vicki Stamper, Megan Williams, “OIL AND GAS SECTOR REASONABLE PROGRESS FOUR- FACTOR ANALYSIS OF CONTROLS FOR FIVE SOURCE CATEGORIES: NATURAL GAS-FIRED ENGINES, NATURAL GAS-FIRED TURBINES, DIESEL-FIRED ENGINES, NATURAL GAS- FIRED HEATERS AND BOILERS, FLARING AND INCINERATION,” (March 6, 2020), https://drive.google.com/file/d/1VBvzhiaTwAaA1X5Qd5O33a9OgKQtxF40/view?usp=sharing, (Exhibit 5).
65
Letter from National Parks Conservation Association, Western Environmental Law, to Sandra Ely, Michael Baca, Mark Jones, and Kerwin Singleton New Mexico Environment Department, “Comments responding to 4-factor analysis submittals from identified oil & gas operators,” (July 10, 2020), https://drive.google.com/file/d/1DZ_IogXIkjcN4ms61PWFuEA16fU9Ha68/view?usp=sharing, with enclosure: Vicki Stamper, Megan Williams, “Assessment of Cost Effectiveness Analyses for Controls Evaluated Four – Factor Analyses for Oil and Gas Facilities For the New Mexico Environment Department’s Regional Haze Plan for the Second Implementation Period,” (July 2, 2020), (Exhibit 6).
66
Draft SIP at III.K.13.H-16.
67
69 Draft SIP at III.K.13.H-16; (note, NPCA and the conservation organizations that commented on the draft PSD permit for the Liquefaction Plant do not agree with DEC’s characterization of the “source” in that permitting action nor DEC’s characterization in the Draft SIP of the AK LNG Project as three stationary sources, see Letter from National Parks Conservation Association, Center for Biological Diversity, and Northern Alaska Environmental Center Comments on Preliminary Prevention of Significant Deterioration Permit No. AQ1539CPT01, Proposed in response to Application from Alaska Gasline Development Corporation to Construct a Liquefaction Plant in Nikiski, Alaska, (Dec. 10, 2020), (“NPCA et al Comments to DEC on AK LNG Project PSD Permit”) (Exhibit 7), https://drive.google.com/file/d/18Oym9YO1c7J1XgHAUjIQRXkLxIy3u- Y3/view?usp=sharing at 16-33 (id. at 17, “There is no question that the AK LNG Project is one contiguous stationary source, and that all of the emitting activities that make up operations of the proposed project together comprise a single source of air pollution for purposes of the PSD program.”)
68
Alaska Department of Environmental Conservation, Air Quality Division, Permitting Department, Air Quality Control Construction Permit Number is AQ1524CPT01, issued 8/13/2020 to the AK Gasline Development Corporation.
69
Draft SIP at III.K.13.H-15.
70
Draft SIP at III.K.13.H-15.
71
42 U.S.C. § 7491(a)(1); 42 U.S.C. § 7475(d).
72
Draft SIP at III.K.13.H-16.
73
NPCA et al Comments to DEC on AK LNG Project PSD Permit at 69.
74
NPCA et al Comments to DEC on AK LNG Project PSD Permit at 70, citing, FEIS at 4-943 (nitrogen deposition impacts from gas treatment plant would exceed deposition thresholds for the Arctic National Wildlife Refuge (“the Refuge”)); id. at 4-955 (sulfur deposition thresholds could be exceeded by air emissions from the Galbraith Lake Compressor Station at the Refuge); id. at 4-974 (LNG emissions “could have a long-term significant impact on acid deposition at the Tuxedni NWR, DNRR, Kenai NWR, and Lake Clark NPP”); id. at 4-958, Tbl. 4.15.5-19; 4-955 (“compressor station and heater station operation could have significant impacts on ecosystems from nitrogen deposition in Class I and Class II nationally designated protected areas”); id. at 5-42 (“the FLM-established visibility threshold and sulfur deposition threshold at the Arctic National Wildlife Refuge could be exceeded by emissions from the Galbraith Lake Compressor Station. FLM-established nitrogen deposition thresholds at multiple Class I and II areas—including Arctic National Wildlife Refuge, Gates of the Arctic NPP, Gates of the Arctic Preserve, Yukon Flats NWR, Kanuti NWR, DNPP, and Kenai NWR—could also be exceeded by operation of the stations”); id. at 146 (“ Such emissions would also harm visibility in these areas, degrading the quality of recreation.); see, also, FEIS at 4- 943 (visibility impacts from the gas treatment plant could exceed threshold at the Refuge); id. at 4- 943 (identifying cumulative impacts to visibility in the Refuge and Gates of the Arctic National Park and Preserve); id. at 4-946 (gas treatment plant emissions would exceed the visibility change threshold at the Refuge and “could have a long-term significant impact on regional haze at [the Refuge]”); id. at 4- 974 (LNG emissions could have a significant impact on regional haze at the Kenai NWR); id. at 4-955 (visibility plume perceptibility thresholds could be exceeded by the Galbraith Lake Compressor Station at the Refuge and by the Healy and Honolulu Creek Compressor Stations at the Denali National Park and Preserve.).
75
NPCA et al Comments to DEC on AK LNG Project PSD Permit at 72.
76
Draft SIP at III.K.13.H-16.
77
NPCA et al Comments to DEC on AK LNG Project PSD Permit
78
Draft SIP at III.K.13.H-16.
79
Draft SIP at III.K.13.H-16.
80
Draft SIP at III.K.13.H-17.
81
NPCA et al Comments to DEC on AK LNG Project PSD Permit at 16-32.
82
42 U.S.C. §§ 7491(g); 40 C.F.R. § 51.300(a); 40 C.F.R. § 51.307(c) (“Review of any major stationary source or major modification under paragraph (b) of this section, shall be conducted in accordance with paragraph (a) of this section, and § 51.166(o), (p)(1) through (2), and (q). In conducting such reviews the State must ensure that the source’s emissions will be consistent with making reasonable progress toward the national visibility goal referred to in § 51.300(a). The State may take into account the costs of compliance, the time necessary for compliance, the energy and nonair quality environmental impacts of compliance, and the useful life of the source.” (emphasis added)).
83
40 C.F.R. § 51.307(c).
84
40 C.F.R. § 51.307(c).
85
Furthermore, DEC (and EPA oversight where necessary) must disapprove the permit applicant’s attempts to subdivide the emitting units into smaller sources to avoid major source status and more stringent emission controls.
86
40 C.F.R. § 51.308(d)(3)(v)(B).
87
2019 Guidance at 22 (which further explains that “If the state has selected construction activities as a source category for an analysis of control measures, it will consider this factor in that analysis. That analysis and the decision about what measures are necessary for reasonable progress are the subjects of Sections II.B.4 and II.B.5 of this document.”)
88
Email from Dave F. Jones, Environmental Engineering Associate I, ADEC, Air Quality, to, Sara Laumann, Principal, Laumann Legal, LLC., Counsel to NPCA, (May 18, 2022), https://drive.google.com/file/d/1Vkq2CpxFomxAieCRrVa7QpGgMy1cdfi9/view?usp=sharing, (Exhibit 8).
89
Draft SIP at III.K.13.H-21.
90
Draft SIP at III.K.13.H-21.
91
2019 Guidance at 25, citing 40 C.F.R. § 51.308(e)(5) (“After a State has met the requirements for BART or implemented an emissions trading program or other alternative measure that achieves more reasonable progress than … BART, BART-eligible sources will be subject to the requirements of paragraphs (d) and (f) of this section.”).
92
2019 Guidance at 25.
93
Draft SIP at III.K.13.H-21.
94
Draft SIP at III.K.13.H-21.
95
USA v. Golden Valley Electric Association Inc. and Alaska Industrial Development and Export Authority, (D.Alaska), Consent Decree, (Relevant Provisions of the CD are as follows, at 13-14, https://www.epa.gov/enforcement/consent-decree-golden-valley-electric-association-inc-and-alaska- industrial-development, and https://www.epa.gov/enforcement/consent-decree-golden-valley-electric- association-inc-and-alaska-industrial-development, (Exhibit 9). ¶ 59. Defendants shall install an SCR at Unit 2 on or before September 30, 2016, or 24 months after Unit 2 First Fires Coal, whichever is later. Continuing thereafter, Defendants shall Continuously Operate such SCR at Unit 2 so that it achieves and maintains a 30-Day Rolling Average NOx Emission Rate of no greater than 0.080 lb/mmBTU. ¶ 60. GVEA shall install an SNCR at Unit 1 on or before September 30, 2015, or 18 months after Unit 2 First Fires Coal, whichever is later. Continuing thereafter, GVEA shall Continuously Operate such SNCR so that it achieves and maintains a 30-Day Rolling Average NOx Emission Rate of no greater than 0.20 lb/mmBTU until GVEA either retires Unit 1 pursuant to Paragraph 62 or installs an SCR at Unit 1 pursuant to Paragraph 63. ¶ 61. On or before December 31, 2022, GVEA shall elect to (a) Retire Unit 1 or (b) install and operate an SCR at Unit 1 (or an alternative control technology approved by EPA) as provided in Paragraph 63. GVEA shall provide Notice of such election pursuant to Section XIX (Notices). ¶ 62. If GVEA elects to Retire Unit 1 pursuant to Paragraph 61, GVEA shall Retire Unit 1 by no later than December 31, 2024. ¶ 63. If GVEA elects to continue to operate Unit 1 pursuant to Paragraph 61, then GVEA shall install an SCR at Unit 1 (or an alternative control technology approved by EPA) commencing on December 31, 2024. Continuing thereafter, GVEA shall Continuously Operate such SCR (or alternative control technology approved by EPA) so that it achieves and maintains a 30-Day Rolling Average NOx Emission Rate of no greater than 0.070 lb/mmBTU.
96
The Clean Air Act does not define the phrase “remaining useful life.” However, EPA, in regulations and guidance, has clarified the meaning of the phrase. EPA has consistently stated that the potential retirement of a facility can be used to shorten a source’s remaining useful life only if the retirement is federally enforceable. Thus, in order to affect the remaining useful life, a retirement commitment must be included in a pre-existing document that can be enforced in federal court, such as a consent decree entered by a federal court, or a state must incorporate the retirement date into its SIP. If a potential retirement is not federally enforceable, it cannot be relied upon to shorten the remaining useful life of a source; see e.g., 83 Fed. Reg. 62,204, 62,232 (Nov. 30, 2018) ( “We are proposing to agree with Arkansas’ cost analysis for dry scrubbers and switching to low sulfur coal for Independence Units 1 and 2, and with the state’s decision to assume a 30-year capital cost recovery period in the cost analysis. It is appropriate to assume a 30- year capital cost recovery period in the cost analysis since Entergy’s plans to cease coal combustion at the Independence facility are not state or federally-enforceable.”); see also 83 Fed. Reg. 43,586, 43,604 (Aug. 27, 2018) (Considering the retirement of certain units where there was evidence that the units had actually been retired at the time of the rulemaking and that the plant had requested cancellation of its air permit).
97
42 U.S.C. § 7410(a)(2)(A).
98
See 40 C.F.R. § 51.308(f)(2) (“The long-term strategy must include the enforceable emissions limitations, compliance schedules, and other measures that are necessary to make reasonable progress, as determined pursuant to (f)(2)(i) through (iv).”).
99
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“[A]n agency rule would be arbitrary and capricious if the agency has . . . entirely failed to consider an important aspect of the problem.”); Pub. Citizen v. Fed. Motor Carrier Safety Admin., 374 F.3d 1209, 1216 (D.C. Cir. 2004) (“A statutorily mandated factor, by definition, is an important aspect of any issue before an administrative agency, as it is for Congress in the first instance to define the appropriate scope of an agency’s mission.”).
100
The United States Court of Appeals for the Fifth Circuit found that EPA must consider statutory factors listed in a similar provision of the Clean Water Act when revising best available technology (“BAT”) limits. See Southwestern Elec. Power Co. v. EPA, 920 F.3d 999, 1026-27 (5th Cir. 2019).
101
40 C.F.R. § 51.308(f)(2); see also 2019 Guidance at 34.
102
See, e.g., 78 Fed. Reg. 10550 (Feb. 14, 2013) (this is not a new suggestion, DEC was on notice from EPA that it should require the source conduct a pilot study for the 2nd planning period).
103
DEC, Air, ANPMS, SIP, 2022 Regional Haze SIP, Regulations: Questions & Answers, https://dec.alaska.gov/air/anpms/sip/2022-regional-haze-questions-answers/
104
DEC, Air, ANPMS, SIP, 2022 Regional Haze SIP, Regulations: Questions & Answers, https://dec.alaska.gov/air/anpms/sip/2022-regional-haze-questions-answers/
105
FLMs have affirmative duties under 42 U.S.C. §§ 7492(a), (d) as well as mandates to protect and manage public lands under the Wilderness Act (16 U.S.C. §§ 1131-1136) and the Organics Act (54 U.S.C. § 100101).
106
40 C.F.R. § 51.308(i)(3); 40 C.F.R. § 51.308(f)(4).
107
2021 Clarification Memo at 16-17.
108
NPS Formal Consultation Call with Alaska Department of Environmental Conservation for Regional Haze SIP Development, (July 19, 2021), at 19.
109
NPS Formal Consultation Call with Alaska Department of Environmental Conservation for Regional Haze SIP Development, (July 19, 2021), at 19 (Additional Feedback from the NPS on Unit 1: As acknowledged in the SIP, the consent decree does not require SO2 emission reductions for Unit 1. Therefore, the consent decree does not address our regional haze concerns for this facility. Based on the EPA RH guidance, Unit 1 would not be considered “effectively controlled” for SO2 in this round of RH planning. Furthermore, Alaska determined that the current limit (0.30 lb/MMBtu) was BART in the first round (partly based on a short equipment lifetime & assumed shutdown date). We disagreed with this BART determination in 2010, noting that optimization of the existing DSI system was very cost effective and that their analysis of a new lime‐spray dryer and wet limestone FGD system over‐estimated the costs and underestimated the benefits of these retrofits. We also noted that the assumed 8‐year equipment life should be federally enforceable if relied on to determine that controls are not cost‐effective. We also commented on Unit 1 SO2 in our 2012 letter to EPA regarding the Alaska RH SIP: “For SO2, we recommend that EPA require GVEA to evaluate addition of a spray dryer with plume reheat and to test whether the efficiency of the existing dry sorbent injection system can be increased to improve SO2 controls.” A review of the 2020 CAMD database reveals that there are hundreds of coal‐fired units with significantly higher SO2 control efficiencies than Healy Unit 1. There are 14 facilities in CAMD with DSI control systems—seven of these facilities report much lower SO2 emission rates on a lb/MMBtu basis than Healy Unit 1 is achieving in practice (0.26 lb/MMBtu). Therefore, it is difficult to construe this unit as “effectively controlled.” Because GVEA has not yet committed to a 2024 shutdown date (per the allowable timeframes in the CD), we recommend that an SO2 four‐factor analysis is necessary for Healy Unit 1. These cost analyses should include optimizing the existing DSI system as well as retrofits with new FGD systems (as was done for BART). This is very important given the proximity of the Healy facility to Denali NP&P. If GVEA declines the shutdown option, Unit 1, which is poorly‐controlled for SO2, will continue to operate well beyond the next planning period. This recommendation is consistent with the recent EPA RH clarification memo, which states: “Therefore, on‐the‐way measures, including anticipated shutdowns that are relied on to forgo a four‐ factor analysis or to shorten the remaining useful life of a source, are necessary to make reasonable progress and must be included in a SIP.”)
110
Draft SIP at 5.
111
2021 Clarification Memo at 5.
112
2019 Guidance at 22.
113
2019 Guidance at 22.
114
2019 Guidance at 19; see also July 2021 Clarification Memo at 5.
115
See, e.g., 40 C.F.R. § 51.308(f)(2)(i) (The State must evaluate and determine the emission reduction measures that are necessary to make reasonable progress by considering the costs of compliance, the time necessary for compliance, the energy and non-air quality environmental impacts of compliance, and the remaining useful life of any potentially affected anthropogenic source of visibility impairment.”); see also 82 Fed. Reg. at 3088 (“Consistent with CAA section 169A(g)(1) and our action on the Texas SIP, a state’s reasonable progress analysis must consider a meaningful set of sources and controls that impact visibility. If a state’s analysis fails to do so, for example, by . . . failing to include cost-effective controls at sources with significant visibility impacts, then the EPA has the authority to disapprove the state’s unreasoned analysis and promulgate a FIP.”). Even if a source has a limited remaining useful life, EPA’s Guidance contemplates that states consider cost-effective operational upgrades. Regional Haze Rule Guidance § II.B.3(f) (“If a control measure involves only operational changes, there typically will be only small capital costs, if any, and the useful life of the source or control equipment will not materially affect the annualized cost of the measure.”); see also 70 Fed. Reg. 39,103, 39,171 (July 6, 2005) (where EPA has made it a point in past actions to ensure that existing controls are examined to determine if they can be cost- effectively upgraded. For instance, the 2005 BART revision to the Regional Haze Rule devotes several paragraphs to specific potential scrubber upgrades it recommends be examined.); see also 81 Fed. Reg. 295, 305 (Jan. 5, 2016) (EPA also demonstrated that scrubber upgrades to a number of coal-fired power plants utilizing outdated and inefficient scrubber systems were highly cost-effective, and could achieve removal efficiencies of ninety-five percent which is near the ninety-eight to ninety- nine percent removal efficiencies of newly-installed scrubber systems.); see also 82 Fed. Reg. 3078, 3088 (Jan. 10, 2017) (EPA noted in its 2017 Regional Haze Rule revision, EPA disapproved Texas’ four-factor analysis in part because “it did not include scrubber upgrades that would achieve highly cost-effective emission reductions that would lead to significant visibility improvements.”).
116
July 2021 Clarification Memo at 7.
117
Draft SIP at III.K.13.H-27.
118
Draft SIP at III.K.13.H-27.
119
Draft SIP at III.K.13.H-27.
120
42 U.S.C. §§ 7491(g); 40 C.F.R. § 51.300(a); 40 C.F.R. § 51.307(c) (“Review of any major stationary source or major modification under paragraph (b) of this section, shall be conducted in accordance with paragraph (a) of this section, and § 51.166(o), (p)(1) through (2), and (q). In conducting such reviews the State must ensure that the source’s emissions will be consistent with making reasonable progress toward the national visibility goal referred to in § 51.300(a). The State may take into account the costs of compliance, the time necessary for compliance, the energy and nonair quality environmental impacts of compliance, and the useful life of the source.” (emphasis added)).
121
40 C.F.R. § 51.307(c).
122
40 C.F.R. § 51.307(c).
123
The Part 70 applicable requirements include the major source construction permit requirements, which in turn include the reasonable progress requirements.
124
42 U.S.C. § 7491(g); 40 C.F.R. § 51.300(a); 40 C.F.R. § 51.307(c) (“Review of any major stationary source or major modification under paragraph (b) of this section, shall be conducted in accordance with paragraph (a) of this section, and § 51.166(o), (p)(1) through (2), and (q). In conducting such reviews the State must ensure that the source’s emissions will be consistent with making reasonable progress toward the national visibility goal referred to in § 51.300(a). The State may take into account the costs of compliance, the time necessary for compliance, the energy and nonair quality environmental impacts of compliance, and the useful life of the source.”) (emphasis added).
125
40 C.F.R. § 51.308(d)(3)(v)(B).
126
Alabama Regional Haze State Implementation Plan, Appendix P, FLM Comments on Alabama’s Draft SIP (Email and Attachment from Catherine Collins, USFWS, to ADEM, “Fish and Wildlife Service Comments regarding the Alabama Regional Haze State Implementation Plan,” (Dec. 26, 2007), at pdf 13, EPA-R04-OAR-2009-0782-0026, https://www.regulations.gov/document/EPA-R04- OAR-2009-0782-0026 (“…the State should include a discussion about the relationship between PSD/NSR programs as part of the other programs that will benefit visibility in the LTS section. A new or modified major industrial source can have a serious impact on the State’s ability to obtain RH goals. As part of the Long- Term Strategy (LTS), the State will rely in great part on the New Source Review (NSR) and Prevention of Significant Deterioration (PSD) permitting programs to assure that new sources do not unduly impair the expected progress toward natural conditions. Section 7.2.1. of the November 2007 draft SIP speaks to emissions reductions of ongoing programs but does not include a discussion of the interaction between the existing NSR program and progress on the regional haze plan. Given the uncertainty in the new source growth estimates used to develop the 2018 emission inventory, and ultimately the 2018 visibility projections, it would be appropriate for the state to discuss the relationship between the Regional Haze Plan and requirements of the NSR and PSD programs within the SIP. Specifically, how does the State anticipate addressing new sources of air pollution in the PSD process in regards to its reasonable progress goals and long term strategy; and, how will it analyze the affect [sic] of new emissions from these new sources on progress toward the interim visibility goals established under this SIP, as well as the ultimate goal of natural background visibility by 2064.”)
127
2019 Guidance at 22 (which further explains that “If the state has selected construction activities as a source category for an analysis of control measures, it will consider this factor in that analysis. That analysis and the decision about what measures are necessary for reasonable progress are the subjects of Sections II.B.4 and II.B.5 of this document.”)
128
See e.g. Sierra Club v. Env’t Prot. Agency, 985 F.3d 1055 (D.C. Cir.), superseded, 21 F.4th 815 (D.C. Cir. 2021).
129
42 U.S.C. § 7410(l).
130
Ala. Envtl. Council v. EPA, 711 F.3d 1277, 1293 (11th Cir. 2013) (EPA interpreted section 110(l) to “permit approval of the SIP revision ‘unless the agency finds it will make air quality worse’” (quoting 73 Fed. Reg. 60,957, 60,960 (Oct. 15, 2008)).
131
Id. at 995 (quoting 70 Fed. Reg. 28,429, 28,430 (May 18, 2005)) (emphasis added).
132
Kentucky Resources Council, Inc. v. EPA, 467 F.3d at 995 (emphasis added).
133
Indiana v. EPA, 796 F.3d 803, 812 (7th Cir. 2015) (noting that EPA allows “emissions-increasing SIP revisions” if a state “identif[ies] substitute emissions reductions such that net emissions are not increasing.”).
134
WildEarth Guardians v. EPA, 759 F.3d 1064, 1074 (9th Cir. 2014).
135
Draft SIP, Department of Environmental Conservation, 18 AAC 50, Air Quality Control, Public Comment Draft, (Undated), at 1.
136
Draft SIP, Department of Environmental Conservation, 18 AAC 50, Air Quality Control, Public Comment Draft, (Undated), at 2-4.
137
Draft SIP at III.K.13.H-5.
138
Although the Draft SIP contains this heading, the language in regulation indicates that it applies to all sources, which includes area, minor and major sources.
139
Draft SIP at III.K.13.H-8.
140
Public Notice at 1.
141
42 U.S.C. § 7491(g)(1); 40 C.F.R. § 51.308(f)(2)(i).
142
Draft SIP at III.K.13.H-5, (“The RH-VPA will be used to identify new development and sources for more detailed haze-related data reporting/tracking and to require additional control measures should they become necessary in the future.); see also, Draft SIP at III.K.13.H-5 (“DEC’s Air Quality Permit program is expanding its record keeping, reporting, and application requirements to include additional information for those sources that may be located in the proposed RH-VPA to assist in meeting 40 C.F.R. 51.308(f)(2)(iv). DEC would use the additional information attained to assist with the required 5-year progress reports, the Plans for future implementation periods, and meeting requirements under 40 CFR 51.308(f)(3).”)
143
42 U.S.C. §§ 7491(a)(1), 7491(g); see also, 40 C.F.R. § 51.300(a); 40 C.F.R. § 51.307(c) (“Review of any major stationary source or major modification under paragraph (b) of this section, shall be conducted in accordance with paragraph (a) of this section, and § 51.166(o), (p)(1) through (2), and (q). In conducting such reviews the State must ensure that the source’s emissions will be consistent with making reasonable progress toward the national visibility goal referred to in § 51.300(a). The State may take into account the costs of compliance, the time necessary for compliance, the energy and nonair quality environmental impacts of compliance, and the useful life of the source.”) (emphasis added).
144
The proposed regulation covers all sources, regardless of size because of the language “all stationary sources that require a permit.” Thus, it includes area sources, minor source and major sources.
145
See Union Elec. Co v. EPA, 427 U.S. 246, 265 (1976) (“States may submit implementation plans more stringent than federal law requires and . . . the Administrator must approve such plans if they meet the minimum requirements of s 110(a)(2).”); Ariz. Pub. Serv. Co. v. EPA, 562 F.3d 1116, 1126 (10th Cir. 2009) (citing Union Elec. Co., 427 U.S. at 265) (“In sum, the key criterion in determining the adequacy of any plan is attainment and maintenance of the national air standards . . . ‘States may submit implementation plans more stringent than federal law requires and [ ] the [EPA] must approve such plans if they meet the minimum [CAA] requirements of § 110(a)(2).’”); BCCA Appeal Group v. EPA, 355 F.3d 817, 826 n.6 (5th Cir. 2003) (“Because the states can adopt more stringent air pollution control measures than federal law requires, the EPA is empowered to disapprove state plans only when they fall below the level of stringency required by federal law.”)
146
Exec. Order No. 12898, § 1-101, 59 Fed. Reg. 7,629 (Feb. 16, 1994), as amended by Exec. Order No. 12948, 60 Fed. Reg. 6,381 (Feb. 1, 1995).
147
Exec. Order No. 14008, 86 Fed. Reg. 7,619 (Jan. 27, 2021).
148
Exec. Order No. 14008 at § 201.
149
2021 Clarification Memo at 16.
150
2019 Guidance at 49.
151
2019 Guidance at 33.
152
See EPA, “EPA Environmental Justice Guidance for National Environmental Policy Act Reviews,” https://www.epa.gov/nepa/environmental-justice-guidance-national-environmental-policy-act- reviews.
153
See EPA, “Learn About Environmental Justice,” https://www.epa.gov/environmentaljustice/learn- about-environmental-justice.
154
See EPA, “EPA EJSCREEN: Environmental Justice Screening and Mapping Tool, Additional Resources and Tools Related to EJSCREEN,” https://www.epa.gov/ejscreen/additional-resources-and- tools-related-ejscreen.
155
See EPA News Release, “EPA Administrator Announces Agency Actions to Advance Environmental Justice, Administrator Regan Directs Agency to Take Steps to Better Serve Historically Marginalized Communities,” (April 7, 2021), https://www.epa.gov/newsreleases/epa- administrator-announces-agency-actions-advance-environmental-justice.

Voices of Experience in America's National Parks

Coalition Submits Comments on Alaska Regional Haze Plan

EXHIBIT 1