Archive for the ‘State Responsibility & Regulations’ Category

Key question still being overlooked:

Would an ordinance weaker than state regulations (including the final SIP) risk termination of the local control program and state funding per AS 46.14.400, AS 46.14.410, and 18 AAC 50.015?

Instead of addressing this question, coverage in the Fairbanks Daily News-Miner is limited to reporting on opinions from three North Pole City Council members. North Pole leaders offer differing opinions on borough air quality plan 2/26/2015.

Link  to previous post: Assembly Proposal for Weak Controls Risks Termination of Local Control


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During recent public hearings on development of a new air quality ordinance, 2015-01, there was no mention that the new ordinance needed to be at least as stringent as the new plan approved by the State or the Borough risks losing local control.

The Assembly went so far as to amend into the draft ordinance a control zone, in effect shrinking the boundaries of the designated PM2.5 nonattainment area by removing the northern third of the nonattainment area. The revised control zone excludes part or all of Chena Ridge, Sheep Creek, Goldstream, Fox, and Gilmore Dome neighborhoods, view proposed “Air Quality Control Zone” map. Not only is there no data to support shrinking the nonattainment area, to do so violates State and Federal law. The idea that air quality must be a compromise seems to have thrown the Assembly off track. Like it or not, long-delayed deadlines and controls take effect Feb. 28, 2015. Opportunities to develop a local plan were squandered years ago. The Assembly holds only these options: follow the State program, strengthen it, or get out of the way. Weakening controls established by the State risks termination of local control and funding granted to the Borough for the program.

Legal substantiation:

  1. The latest version of ordinance 2015-01 appears to include an error in the “whereas” statements. The last statement on page 2 refers to “draft regulations” issued by DEC that are “intended to be part of the State Implementation Plan as required by the EPA.” The regulations issued by DEC are no longer in “draft” form. They are FINAL regulations that have been fully adopted by DEC (and signed by the Lieutenant Governor) and they constitute state regulatory law beginning Feb. 28, 2015. DEC’s website makes plain that the regulations are final.
  2. The draft Borough ordinance also notes on page 2 that the Borough has been authorized by DEC to operate an air quality control program “in lieu of and consistent with the State’s air quality program.” This is accurate, although the key word is “CONSISTENT.” Any local air quality control program must operate in a manner that is “consistent” with DEC requirements. This is specified in the statutory provision that allows for the existence of the Borough’s local air quality control program. Per AS 46.14.400(a): “With the approval of the department, a municipality may establish and administer within its jurisdiction a local air quality control program that operates in lieu of and is consistent with all or part of the department’s air quality program as established under this chapter.” (emphasis added).
  3. By Alaska statute, to be “consistent,” the Borough’s local air quality control program MUST implement DEC regulations. This is specified in AS 46.14.400(f):  “A municipality or a local air quality district administering a program under this section shall administer its local air quality control program according to this chapter, regulations adopted under those sections, and its cooperative agreement under (d) of this section.” (emphasis added).
  4. The only exception to the statutory requirement that a local air quality control program administer state regulations is for “more stringent” local requirements, which may be adopted with DEC approval. See AS 46.14.400(f).
  5. A local air quality control program may only operate if approved by DEC. See AS 46.14.400(a). If a local air quality control program is NOT administered in a manner that is consistent with legal requirements, DEC can revoke approval and terminate the program. See AS 46.14.410.
  6. The boundaries of the nonattainment area are set by EPA, whose delineation constitutes federal regulatory law. The boundaries of the nonattainment area are further codified in DEC’s regulations, which incorporate by reference the delineation of the EPA administrator.  See 18 AAC 50.015.
  7. In light of the foregoing, it would be UNLAWFUL, DISRUPTIVE, and ultimately POINTLESS for the Borough to adopt less restrictive air quality regulations.

Additional points:

  • Because state law requirements govern no matter what the Borough decides, inconsistent local measures risk unnecessary confusion and the potential that residents might face enforcement consequences for violation of state regulations—which they must obey no matter what the Borough says. (NOTE: Page 4 of the DEC-Borough MOU specifies that a violation of a DEC regulation will be handled by DEC.) Adoption of inconsistent local regulations risks termination of the Borough’s local air quality control program by DEC and funding provided for this program by state and federal agencies.
  • The adoption of inconsistent regulations by the Borough—and the attendant confusion and uncertainty about the extent to which state regulations are in force—likely would undermine the chances that EPA will approve the SIP submitted by DEC in January. If DEC’s SIP submission is not approved by EPA, the clock will start running on potential sanctions for Fairbanks, including stricter permit requirements for new major source, the loss of highway funds, and imposition of restrictions by EPA.

Note on Data Gap: In 2008, Mayor Jim Whitaker requested a time extension on the nonattainment boundary decision, insisting it was not “to delay addressing the problem,” but to resolve the “significant gaps” in the data used to set the nonattainment boundary. Link to source. (Whitaker is now chief of staff for Governor Bill Walker.) CAF encourages readers who are data driven to review the data used in 2008 to successfully press EPA to shrink the size of the nonattainment area. Link to ADEC nonattainment documents.

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Update: Success! A week after this post, the Borough fixed the Near-real Time site. No explanation why it took years. Thank you to all who pressed the Borough to correct this problem.

UNHEALTHY in Fairbanks and North Pole again today.

Fairbanks North Star Borough advises it is UNHEALTHY but has only voluntary recommendations.

EPA says local air pollution is highest in the nation today. 155 AQI converts to PM2.5 of 62.3 µg/m3. EPA AQI to Concentration Calculator.

Nation's Highest AQI 1/27/2015  http://www.airnow.gov

Nation’s Highest AQI 1/27/2015 http://www.airnow.gov

But, oops! The State forgot to issue an Air Quality Advisory until noon.

Eventually, an Air Quality Advisory was declared as UNHEALTHY for Fairbanks and North Pole AQA #2015-09. However, it failed to mention the State’s new opacity rule — at 24-hour concentrations over 30 µg/m3, State regulations prohibit smoke opacity greater than 20% for any wood heating appliance in the FNSB nonattainment area. Submitted to EPA: Final SIP, 12/24/2014, III.D.5.7-8, III.D.5.11-6. The State told EPA but why don’t they tell local burners about the new opacity rules?

2015-01-27 BAC Moderate 68

1/27/2015 at 1 pm BAC USG  http://co.fairbanks.ak.us/airquality/AQNearRealTime.aspx

Borough “Near-real Time” hourly warnings show yellow for MODERATE when hourly PM2.5 was 68.

Then, as current air conditions worsened, “Near-real Time” became orange for UNHEALTHY FOR SENSITIVE GROUPS when hourly PM2.5 was 83.

The “Near-real Time” site confuses the public by failing to provide current hourly PM2.5 information based on 24-hour exposure at that level. Table: EPA Air Quality Index for 24-hour PM2.5. The FNSB hourly site has underreported health danger since its inception.

When will FNSB listen to Dermot?

The borough reporting system does not follow the national pattern. But it should.

The borough includes this disclaimer, “When calculating Air Quality Index Level on Near-Real-Time Data, the average PM2.5 for a one hour time frame is used. Since the EPA doesn’t have index levels for the average one hour time frame, the levels indicated on this web page are calculated as if the one hour average PM2.5 were the peak value in an average 24 hour period with normally distributed emissions.”

The problem is that the hourly reports are not necessarily the daily peak levels.

While it is true that EPA does not have a one-hour standard, it is also true that cities across the country are reporting the one-hour figures and making a statement about air quality and health based on 24-hour exposure at that level.

I have asked borough officials and state officials to address this problem and adopt the reporting system that is in use in the rest of the nation.” Dermot Cole, FDNM 12/1/2012.

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2014-01-24 120 Citizens Comment on ADEC Proposed AQ Regulations-FinalA comment letter submitted yesterday to the Alaska Department of Environmental Conservation offers recommendations on the agency’s proposed air quality regulations. The comments were signed by 120 individuals, organizations, and businesses.

Read the letter: Comments on ADEC Proposed Air Quality Regulations – 120 signatures – final.pdf

From the comment letter:

“In conclusion, we find the proposed controls to be inadequate for the important task ahead. DEC has failed to consider control measures that are reasonably available, publicly supported, enforceable, sufficient, and viable. Our recommendations by contrast meet the requirements of law and the priorities of public health and the economic future of Fairbanks and North Pole. It is not reasonable to allow a small minority of chronic polluters to continue to undermine the health and economic future of an entire population who all need clean air to breathe.”

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Air Plan Deadline Extension Draws Critics (audio) Alaska Public Radio News, 12/4/2013

We ask: Why is EPA helping the State of Alaska delay clean air for Fairbanks?


There’s pushback on the Environmental Protection Agency’s proposed extension of time for states to develop plans to reduce fine particulate pollution. Clean air advocates are opposed to potential delay in improving air quality in communities suffering with air pollution like Fairbanks.

A January ruling in a suit filed by the Natural Resources Defense Council requires the EPA enforce smoke regulations under more a stringent part of the Clean Air Act. Last month, the agency proposed giving states more time, until Dec. 14, 2014, to get attainment plans in.

Earthjustice attorney Colin O’Brien: ‘They’ve looked at a court decision–which said EPA you’re doing this wrong, the deadline is supposed to be earlier not later–and EPA has responded by giving an extension of time.’

The State of Alaska failed to meet the original deadline 2012 and is working to get a plan for cleaning up Fairbanks’ air in by next summer.

Plans won’t be going into place until just prior to EPA pollution reduction threshholds which take effect in 2015.

O’Brien: ‘It’s hard to imagine that the attainment deadline will actually be met.’ O’Brien adds there’s a lot at risk: ‘The health and welfare in those communities like Fairbanks where the air pollution levels are dangerous.’

Related post: EPA Proposes More Delays for Fairbanks, Possibly til 2024

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New air pollution rules proposed by the State of Alaska Department of Environmental Conservation are too weak to protect your health or the economy.

58 comments have been submitted on the proposed air pollution regulations for the Fairbanks PM2.5 nonattainment area. WOW! 30 in the past week! Compare w/ 56 comments submitted by residents from Liberty-Clairton, Pennsylvania on their PM2.5 attainment plan. Way to roll! More comments than a community of 1.2 million! Keep it up!


Cut and paste these snazzy, new comments. Use your own words as much as possible…


Set the PM2.5 trigger for Air Alerts to 35 micrograms per cubic meter or lower. The state has proposed to set the trigger at 56 micrograms per cubic meter. Nonattainment violations start at 35 micrograms per cubic meter. The trigger needs to be no higher than 35 to help prevent violations. Alaska must not be the only state in the nation with a trigger higher than 35. Juneau, AK uses 30, Washington State uses 25 and 35, Sacramento, CA uses 31 and 35, and Utah nonattainment areas use 25.

Hospitalization for heart attacks, lung ailments, and strokes increase at levels above 20 micrograms per cubic meter. A lower number better protects health. FNSB 11/29/2012, p 11. Scientific evidence and medical harm support a trigger of 20 micrograms per cubic meter. A level of 56 is cruel because it gives no protection to sensitive groups such as people with heart or lung problems, diabetics, elders, children, and developing fetuses.

Add section for public notification of Air Alerts. Establish “check before you burn” website, email notifications, toll-free phone number, and other media outlets. Air pollution can continue to increase after an announcement of unsafe levels of air pollution depending on how well the order is communicated and public response.

[Personalize it — Say how much air pollution has cost YOU financially. Were you hospitalized? Did you miss work? Were you prescribed medicines? Did you buy an air filtration system? Say so; specify your financial cost.]

PASTE your comment in Form Field #5: https://dec.alaska.gov/Applications/Air/airtoolsweb/FormalComments
the “fiscal impacts” box.
ATTACH supporting documents to show how much air pollution has cost you financially.


The proposed regulations need to include an exemption for essential residential heating during a temporary power outage and where a solid fuel-fired heating device is the sole source of heat. Exempt devices must be registered by a cut-off date and upgraded when the property is sold. A exemption for essential residential heating is standard in other states including California, Washington, Nevada, and Utah.

A new definition should be included for “essential heating” to provide for residential heating needs that are absolutely necessary.

PASTE your comment in Form Field #8: https://dec.alaska.gov/Applications/Air/airtoolsweb/FormalComments IMPORTANT: CHECK the “fiscal impacts” box.
ATTACH supporting documents to show how much air pollution has cost you financially.

CLICK “Submit Comments” at bottom of form to submit both comments.

The state will email a copy of your comments to you. Please forward a copy to: cleanairfairbanks@gmail.com

FORWARD this message to a friend because we need help to take back our air.

Thank you.


If you prefer to submit all your comments at one time, download, edit, and send Word DOC on this post: Take Action: Comment for Clean Air on Draft State Rules. Post also has links to the proposed and current regulations.

Will Alaska DEC listen? If you specify what air pollution has cost you and you check the “fiscal impact” box, DEC must listen. To get their ear, specify dollar amounts (estimates are better than no numbers) and attach supporting documentation. State law requires agencies to “pay special attention to the cost to private persons.” AS 44.62.210.

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Update 11/22/2013: If Fairbanks is classified as “serious,” the attainment date with all possible extensions will be 2024, not 2020 as originally stated. The post below has been corrected. Thank you to our alert reader for catching the error. When health has no voice or value, delay is here to stay.

How is it “good news” that the State may further delay filing the PM2.5 attainment pla

The shifting deadline is good news because missing the deadline could come with serious sanctions against the state. The federal government could yank highway funds and impose sanctions on any new power plants built in areas that don’t meet the EPA’s clean air standards.” Cindy Heil with Alaska DEC Air Quality Division explained the delay in finalizing the state attainment plan was because DEC expected the deadline to slip. According to Ms Heil, “We’re looking to meet this one.” Alaska gets a break on late air quality plan FDNM 11/20/2013.

Isn’t it a human tragedy wrapped in incompetence rolled up with denial?

Or, is it business as usual and just another dirty air day in Fairbanks and North Pole?

>> Link: ADEC Air Quality Advisory Fairbanks North Pole area UNHEALTHY for SENSITIVE GROUPS becoming UNHEALTHY valid Nov 19 4:00PM to Nov 22 2013 4:00PM

For the day so far at 2:00 pm, the Watershed School monitor in Fairbanks recorded a PM2.5 average of 47 micrograms/cubic meter and the North Pole Fire Station recorded 89. For now, downtown Fairbanks is an oasis of better air. 30 was recorded at the downtown FNSB Administrative Building, the only site tracked by EPA. Nonattainment is over 35 micrograms/cubic meter for a 24-hour average.

EPA’s proposed extension risks the health and lives of people with asthma and COPD, heart disease and atrial fibrillation, diabetics, elders, children, developing fetuses, even healthy adults and athletes. We oppose this unnecessary, bureaucratic delay that abandons an entire community with no regard to health consequences.

New Deadlines under Proposed SIP Extension

If finalized, the State Implementation Plan (SIP) will be due Dec. 31, 2014. Eight areas (including Fairbanks) in five states are affected.

The attainment deadline would be Dec 14, 2015, rather than Dec 14, 2014. Attainment is determined from the three-year average of design values for 2012, 2013, 2014 of 35 or below. [By comparison, the 2010-2012 average for Fairbanks was 46. Only two areas in the nation, San Joaquin, CA and Logan, UT, recorded higher values during the same period.] Design value readings are taken every third day by the FNSB Administrative Building monitor in downtown Fairbanks and do not include higher concentrations recorded in North Pole or at the Watershed School.

The proposed rulemaking establishes all eight areas as “moderate.” EPA may reclassify areas as “serious” in two ways: 1) 18 months after a state misses the Dec 31, 2014 SIP deadline or 2) 6 months after a state misses the Dec 14, 2015 attainment deadline.

“Moderate” areas may be eligible for two extensions of no longer than one year each if “the State has complied with all requirements and commitments pertaining to the area in the applicable implementation plan; and there is not more than one exceedance of the 24-hour standard during the preceding year.” 42 USC § 7513(d). Therefore, the attainment date for “moderate” areas with all possible extensions would be 2017.

Areas classified “serious” get more time to meet attainment. The attainment date for Fairbanks would become Dec 14, 2019 if so designated.

Further, “serious” areas may get up to five years of extensions if certain conditions are met including “the State demonstrates to the satisfaction of the Administrator that the plan for that area includes the most stringent measures that are included in the implementation plan of any State or are achieved in practice in any State, and can feasibly be implemented in the area.” 42 USC § 7513(e). Therefore, the attainment date for “serious” areas with all possible extensions would be 2024.

>> Link to Federal Register notice, public comment period ends 12/23/2013: https://www.federalregister.gov/articles/2013/11/21/2013-27992/identification-of-nonattainment-classification-and-deadlines-for-submission-of-state-implementation

Related Posts:

EPA Scraps Implementation Guidance for 2006 PM 2.5 Rule

How EPA’s Design Values Exclude Air Pollution Days

Fairbanks Air: More Dangerous Than You Think – Wickersham’s Conscience

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