HB 167: "An Act relating to air quality control and the prevention, abatement, and control of air pollution; relating to civil and criminal penalties, damages, and other remedies for air quality control violations; clarifying the definition of `hazardous substance' to include releases and threatened releases to the atmosphere; amending the lien provisions relating to the oil and hazardous substance release response fund; relating to inspection and enforcement powers of the Department of Environmental Conservation; and providing for an effective date."
00HOUSE BILL NO. 167 01 "An Act relating to air quality control and the prevention, abatement, and 02 control of air pollution; relating to civil and criminal penalties, damages, and 03 other remedies for air quality control violations; clarifying the definition of 04 `hazardous substance' to include releases and threatened releases to the 05 atmosphere; amending the lien provisions relating to the oil and hazardous 06 substance release response fund; relating to inspection and enforcement powers of 07 the Department of Environmental Conservation; and providing for an effective 08 date." 09 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 10 * Section 1. POLICY AND PURPOSES. (a) It is the policy of the state to have a 11 program to prevent, abate, control, and identify air pollution that complies with 42 U.S.C. 12 7401 - 7671q (Clean Air Act), as amended, and federal regulations adopted under those laws. 13 (b) Changes in state law are necessary to allow the state to continue to have primary 14 management of air quality in the state and to retain federal approval of the state's air quality
01 control program in order to ensure the continued receipt of federal highway and air pollution 02 control money. The federal Environmental Protection Agency must prohibit the approval of 03 highway projects and highway grants, and may withhold air pollution control grants, if the 04 state does not comply with 42 U.S.C. 7401 - 7671q (Clean Air Act). 05 (c) It is the intent of the legislature to comply with 42 U.S.C. 7401 - 7671q (Clean 06 Air Act) in a manner that meets the federal requirements, allows efficient and cost effective 07 processing of permits, requires accountability from the Department of Environmental 08 Conservation on matters relating to recovery of program costs, and ensures the productivity 09 of the state's businesses while protecting the health and welfare of the state's residents. 10 * Sec. 2. AS 46 is amended by adding a new chapter to read: 11 CHAPTER 14. AIR QUALITY CONTROL. 12 ARTICLE 1. CLASSIFICATIONS AND STANDARDS. 13 Sec. 46.14.010. EMISSION CONTROL REGULATIONS. (a) After public 14 hearing, the department may adopt regulations under this chapter establishing ambient 15 air quality standards or emission standards that are necessary to implement a state air 16 quality control program under 42 U.S.C. 7401 - 7671q (Clean Air Act), as amended. 17 The standards established under this section may be for the state as a whole or may 18 vary in recognition of local conditions. 19 (b) Except as provided in (d) and (f) of this section, the department may adopt 20 the following types of regulations only after public hearing and compliance with 21 AS 46.14.015: 22 (1) a regulation that regulates air contaminants, sources, or categories 23 of sources, or facilities that are not required to be regulated under federal law; 24 (2) a regulation that establishes an emission standard or ambient air 25 quality standard for which there is no corresponding federal standard; or 26 (3) a regulation that establishes an emission standard or ambient air 27 quality standard that is more stringent than a corresponding federal standard. 28 (c) In addition to the requirements under (b) of this section, before adopting 29 a regulation under (b)(3) of this section, the department shall demonstrate that 30 meteorological conditions, source characteristics, and exposure profiles are significantly 31 different in the state from those upon which a federal regulation is based and the
01 conditions, characteristics, and exposure profiles reasonably require a more stringent 02 ambient air quality standard or emission standard to protect human health and welfare 03 in the state. 04 (d) Notwithstanding AS 46.14.015 and (b) of this section, the department may 05 revise emission standards for open burning without complying with AS 46.14.015 or 06 (c) of this section. 07 (e) Following issuance of a permit by the department containing an equivalent 08 emission limitation under 42 U.S.C. 7412(j), the department shall adopt the limitation 09 by regulation after public hearing and compliance with AS 46.14.015. 10 (f) The department shall include an emission standard in a permit that is more 11 stringent than the otherwise applicable federal or state emission standard, and is not 12 required to follow the procedures of AS 46.14.015 in order to do so, if the more 13 stringent standard is 14 (1) requested by the owner or operator to whom the permit is issued; 15 or 16 (2) determined to be necessary based on the source-specific or facility-specific determination required under 42 17 U.S.C. 7401 - 7671q or federal regulations 18 adopted under those sections. 19 (g) For the purpose of determining if a permit is required under AS 46.14.205, 20 the department's regulations must provide for 21 (1) exemptions for fugitive emissions to the extent allowed under 22 federal laws and regulations; and 23 (2) other federally adopted exemptions. 24 (h) An emission standard adopted by the department may be applicable to 25 individual sources within a facility or to all sources within a facility. For purposes of 26 determining compliance with applicable regulations and with permit limitations, the 27 department may allow numerical averaging of the emissions of each air contaminant 28 from several sources within a facility if 29 (1) requested by the owner and operator; and 30 (2) allowed under 42 U.S.C. 7401 - 7671q, as amended, and regulations 31 adopted under those sections.
01 (i) In implementing this chapter, the department may not require a person to 02 use 03 (1) machinery, devices, or equipment of a particular type or from a 04 particular supplier or produced by a particular manufacturer; or 05 (2) specific methods, processes, procedures, or designs for the 06 management and operation of a facility regulated under this chapter except to the 07 extent that the federal administrator 08 (A) has adopted a design, equipment, work practice, or 09 operational standard under 42 U.S.C. 7412(h) for the control of a hazardous air 10 pollutant; and 11 (B) has approved an alternative hazardous air pollutant standard 12 under 42 U.S.C. 7412(h)(3). 13 Sec. 46.14.015. SPECIAL PROCEDURES FOR MORE STRINGENT 14 REGULATIONS; ADVISORY PANEL. (a) Before adopting a regulation governed 15 by AS 46.14.010(b), the department shall 16 (1) undertake or provide for competent scientific and technical studies 17 of the air contaminant, source, or category of sources; the studies shall be subjected 18 to peer review; 19 (2) submit its findings, the studies performed under (1) of this 20 subsection, and the related peer review comments to a science advisory panel 21 established under (b) of this section; 22 (3) make available to the public at convenient locations copies of the 23 department's proposed regulations, the studies performed under (1) of this subsection, 24 the related peer review comments, the written opinions and recommendations of the 25 science advisory panel, the findings of the department describing the basis for the 26 department's proposed adoption of regulations, and an analysis of the technological 27 and economic feasibility of the proposal. 28 (b) To assist the department under (a) of this section or at any other time when 29 the department needs assistance to investigate the effects of air contamination on 30 human health and welfare or on the environment, the department shall appoint a 31 science advisory panel consisting of three persons. The panel members may not be
01 employees of the department. The panel members must be knowledgeable in the fields 02 of science, health, or engineering, and at least one of the members must have specific 03 experience concerning the air contaminant or source the department intends to regulate 04 or investigate. Panel members are entitled to reimbursement for travel expenses and 05 per diem as authorized for boards and commissions under AS 39.20.180 and to 06 compensation of $50 a day while performing duties required of the panel. 07 AS 09.25.110 - 09.25.120 (public records law) and AS 44.62.310 (open meetings law) 08 apply to a panel established under this subsection. A panel shall submit its opinions 09 and recommendations to the department within 90 days after being requested to do so 10 unless the department agrees to a longer period of review. 11 Sec. 46.14.020. CLASSIFICATION OF FACILITIES OR SOURCES; 12 REPORTING. (a) The department, by regulation, may classify facilities or sources 13 that, in the department's determination, are likely to cause or contribute to air 14 pollution, according to the levels and types of emissions and other characteristics that 15 relate to air quality. The department may make a classification under this subsection 16 applicable to the state as a whole or to a designated area of the state. The department 17 shall base the classifications on consideration of health, economic, and social factors, 18 sensitivity of the receiving environment, and physical effects on property. 19 (b) The department or a local program authorized under AS 46.14.500 may 20 require an owner and operator of a facility or source classified under this section to 21 report information to the department or the authorized local program concerning 22 location, size, and height of contaminant outlets or area sources, processes employed, 23 fuels used, the nature and time periods or duration of emissions, and other information 24 relevant to air quality that is available or reasonably capable of being calculated and 25 compiled. 26 Sec. 46.14.030. STATE AIR QUALITY PLAN. The department shall act for 27 the state in any negotiations relative to the state air quality control plan developed 28 under 42 U.S.C. 7401 - 7671q (Clean Air Act), as amended. The department may 29 adopt regulations necessary to implement the state plan. 30 ARTICLE 2. EMISSION CONTROL PERMIT PROGRAM. 31 Sec. 46.14.200. PERMITS FOR CONSTRUCTION, MODIFICATION, OR
01 OPERATION. (a) Before constructing, installing, modifying, reconstructing, or 02 establishing a facility subject to AS 46.14.205(a), the owner and operator shall obtain 03 a construction permit under this chapter. 04 (b) Except when considered to be in compliance with this chapter under a 05 regulation adopted under AS 46.14.210(a)(11) or 46.14.245(c), the owner or operator 06 shall obtain an operating permit under this chapter before operating a facility subject 07 to AS 46.14.205(b). 08 (c) A permittee shall comply with the terms and conditions of a permit and 09 any modifying compliance order issued by the department under this chapter. 10 (d) The department shall ensure that permits issued, modified, amended, 11 renewed, or revoked and reissued under this chapter comply with all applicable federal, 12 state, and local requirements. 13 (e) If the federal administrator exempts a source from the requirements of 42 14 U.S.C. 7661a(a) (Clean Air Act, sec. 502(a)), the commissioner, by regulation, shall 15 consider the factors used by the administrator in reaching that determination and shall 16 issue a similar determination unless public health or air quality effects provide a 17 reasonable basis to regulate the source. 18 Sec. 46.14.205. FACILITIES REQUIRING PERMITS. (a) Before 19 constructing, installing, modifying, reconstructing, or establishing a facility, the owner 20 and operator shall obtain a construction permit from the department if the facility is 21 any one of the following: 22 (1) a new facility that emits or has the potential to emit 250 tons per 23 year (TPY) or more of a regulated air contaminant; 24 (2) a new facility of a type classified under AS 46.14.020 that emits 25 or has the potential to emit 100 TPY or more of a regulated air contaminant; 26 (3) a new facility of a type classified under AS 46.14.020 27 (A) as having the potential to violate the ambient air quality 28 standards; or 29 (B) under a finding by the department that public health or air 30 quality effects provide a reasonable basis to regulate the source; 31 (4) a new facility that emits or has the potential to emit 10 TPY or
01 more of a hazardous air contaminant or 25 TPY or more, in the aggregate, of two or 02 more hazardous air contaminants; 03 (5) an existing facility for which 04 (A) a modification is proposed that would increase actual 05 emissions of an air contaminant by an amount equal to or greater than the 06 emission quantity set out in regulations adopted under AS 46.14.010 or 07 46.14.210; or 08 (B) reconstruction is proposed. 09 (b) The owner and operator of a facility shall obtain an operating permit from 10 the department if the facility is a facility subject to (a) of this section or a facility that 11 (1) emits or has the potential to emit 100 TPY or more of a regulated 12 contaminant; 13 (2) emits or has the potential to emit 10 TPY or more of a hazardous 14 air contaminant or 25 TPY or more, in the aggregate, of two or more hazardous air 15 contaminants; 16 (3) contains a source subject to federal new source performance 17 standards under 42 U.S.C. 7411 (Clean Air Act, sec. 111) or national emission 18 standards for hazardous air pollutants issued under 42 U.S.C. 7412 (Clean Air Act, sec. 19 112); or 20 (4) contains another stationary source designated by 21 (A) the federal administrator by regulation; or 22 (B) the department under a finding that public health or air 23 quality effects provide a reasonable basis to regulate the source. 24 Sec. 46.14.210. EMISSION CONTROL PERMIT PROGRAM 25 REGULATIONS. (a) The department shall adopt regulations to address all 26 substantive and procedural elements of the emission control permit program established 27 under this chapter that are not addressed in statute, except elements that relate only to 28 the internal management of the department and do not affect the public or govern the 29 way the department deals with the public. The regulations must be reasonable and 30 adequate, and provide flexibility in the operation of a facility consistent with 42 U.S.C. 31 7401 - 7671q (Clean Air Act), as amended, and applicable federal regulations. The
01 regulations must include 02 (1) a standard permit application form that meets the requirements of 03 federal regulations adopted under 42 U.S.C. 7661a(b) (Clean Air Act, sec. 502(b)); 04 (2) procedures for preparation and submission of a monitoring, 05 reporting, and quality assurance plan and, if required, a compliance schedule describing 06 how a permitted facility will comply with the applicable requirements of this chapter; 07 (3) procedures for 08 (A) specifying when permit applications and renewal requests 09 are to be submitted; 10 (B) specifying the time duration for department review of permit 11 applications; 12 (C) processing and reviewing an application; 13 (D) providing public notice, including opportunity for public 14 comment and hearing; and 15 (E) issuing permits, including procedures for issuing permits for 16 temporary operations or open burn activities; 17 (4) reasonable standard permit conditions, including conditions for 18 (A) emission standards and limitations; 19 (B) monitoring, record keeping, and reporting for facilities 20 subject to AS 46.14.205; 21 (C) inspection and entry; 22 (D) certification of corporate or other business organization 23 reports; 24 (E) annual certification of compliance; 25 (F) excess emission or process deviation reporting; and 26 (G) equipment malfunctions and emergencies; 27 (5) fees and procedures for collecting fees; 28 (6) provisions addressing late payment or nonpayment of fees, which 29 may include assessment of penalties and interest or refusal to issue, amend, modify, 30 or renew an air quality control permit; 31 (7) the duration of permits;
01 (8) procedures for modifying or amending a permit that provide 02 flexibility in the operation of the facility, including procedures to allow changes to a 03 permitted facility without requiring a permit modification, consistent with the purposes 04 of this chapter and with 42 U.S.C. 7401 - 7671q (Clean Air Act); 05 (9) reasonable provisions for renewing, reopening, revoking and 06 reissuing, and terminating a permit consistent with the purposes of this chapter and 42 07 U.S.C. 7401 - 7671q (Clean Air Act); 08 (10) provisions allowing for physical or operational limitations that will 09 reduce a facility's emissions to levels below those that would make the facility subject 10 to part or all of AS 46.14.200 and 46.14.205; 11 (11) provisions authorizing facility operation while a permit application 12 is pending, consistent with 42 U.S.C. 7661b(d) (Clean Air Act, sec. 503(d)); 13 (12) provisions for ensuring that compliance with an operating permit 14 issued under this chapter will be considered to be compliance with 42 U.S.C. 7661a 15 (Clean Air Act, sec. 502) and other provisions of state or federal law specifically 16 provided for by the department consistent with 42 U.S.C. 7401 - 7671q (Clean Air 17 Act) and regulations adopted under state and federal law; and 18 (13) provisions allowing for certification of inspectors who evaluate 19 compliance with the terms and conditions of a permit, order, regulation, or other 20 provision of law authorized under this chapter. 21 (b) The absence of, or the department's failure to adopt, a regulation under this 22 section does not relieve a person from compliance with a permit issued under this 23 chapter and with other provisions of law, including emission control requirements. 24 Sec. 46.14.220. TIME FOR SUBMISSION OF PERMIT APPLICATIONS. 25 (a) The owner and operator of a facility required to have an operating permit under 26 this chapter shall submit the required application and monitoring, reporting, and quality 27 assurance plan no later than (1) 12 months after the date on which the facility becomes 28 subject to AS 46.14.200(b); or (2) 12 months after the date on which the federal 29 administrator approves the state permit program under 42 U.S.C. 7661a(d), whichever 30 is later. 31 (b) The department may accept and begin processing applications filed earlier
01 than the submission date. Applications filed earlier may be given priority for permit 02 issuance. 03 Sec. 46.14.222. COMPLETENESS DETERMINATION. (a) The department 04 shall review every application submitted under this chapter for completeness. To be 05 determined complete, an application must provide the information identified by the 06 department in regulations adopted under AS 46.14.210 and in standard application 07 forms provided by the department under AS 46.14.210(a)(1) and must be certified true 08 and correct by the owner and operator. 09 (b) The department shall notify the applicant in writing whether the application 10 is complete. Unless the department notifies the applicant within 60 days of receipt of 11 an application that the application is incomplete, the application is considered to be 12 complete. 13 (c) If, during the processing of an application after it has been determined or 14 considered to be complete, the department finds that additional information is 15 necessary to evaluate or take action on that application, the information may be 16 requested in writing from the owner and operator. 17 Sec. 46.14.225. ADMINISTRATIVE ACTIONS REGARDING PERMITS. 18 (a) Except as provided in AS 46.14.245 and 46.14.255(b), after receipt of a complete 19 application, and after notice and opportunity for public comment and hearing, the 20 department shall issue or deny 21 (1) a construction permit within 30 days after the close of the public 22 comment period; 23 (2) an operating permit, other than a general operating permit, within 24 12 months after receipt of the complete application by the department. 25 (b) Notwithstanding (a) of this section, the department may establish a phased 26 schedule for acting on operating permit applications submitted within the time required 27 under AS 46.14.220. A phased schedule must ensure that at least one-third of the 28 applications submitted during the initial application period will be acted on by the 29 department during each of the three 12-month periods following the initial application 30 period. The department shall give priority to the issuance of permits for new facilities 31 and modifications of existing facilities.
01 (c) Failure by the department to act within the time limits established in or 02 under (a) or (b) of this section shall be treated as a final agency action, but only for 03 purposes of judicial review to require that action be taken by the department. 04 Sec. 46.14.230. REVIEW OF PERMIT ACTION. If aggrieved by a permit 05 action under this chapter, the owner and operator, a person who participated in the 06 public comment process, or a person who has a private, substantive, legally protected 07 interest under state law that may be adversely affected by the permit action may 08 request an adjudicatory hearing under the department's adjudicatory hearing 09 procedures. After the issuance of an adjudicatory hearing decision, a party to the 10 hearing may obtain judicial review of that decision as provided in Alaska Rules of 11 Appellate Procedure. 12 Sec. 46.14.232. MONITORING. Monitoring by the owner and operator of 13 stack emissions or ambient air quality shall be required by the department only for 14 purposes of demonstrating compliance with applicable permit requirements. 15 Monitoring requirements must be reasonable and based on test methods, analytical 16 procedures, and statistical conventions approved by the federal administrator or the 17 department or otherwise generally accepted as scientifically competent. Unless 18 otherwise agreed to by the owner and operator and the department, 19 (1) the department may not require an owner and operator of a source 20 to monitor emissions or ambient air quality solely for the purpose of scientific 21 investigation or research; and 22 (2) monitoring activities must be consistent with the applicable 23 emission standards and other permit or permit application requirements. 24 Sec. 46.14.235. SINGLE PERMIT. Regardless of whether a facility contains 25 a single source or multiple sources, only a single operating permit is required for the 26 facility. 27 Sec. 46.14.240. GENERAL OPERATING PERMITS. After notice and 28 opportunity for public comment and hearing, the department may, unless the permit 29 is disapproved by the federal administrator, establish a general operating permit that 30 would be applicable to more than one facility determined by the department to be 31 similar in source structure. A general operating permit must contain provisions that
01 meet the requirements of this chapter applicable to operating permits. A general 02 operating permit issued to a particular person takes effect when the person's 03 application is determined to be complete unless the department notifies the applicant 04 that the general permit is not applicable to the person's facility. 05 Sec. 46.14.245. OBJECTION BY FEDERAL ADMINISTRATOR. (a) An 06 operating permit may not be issued under this chapter until the federal administrator 07 approves the permit, or until 45 days after a copy of the final draft permit has been 08 provided by the department to the federal administrator, whichever is earlier. If, 09 during the 45-day period, the federal administrator files an objection with the 10 department, the department shall notify the applicant of the objection. The department 11 may not issue the permit until the objection is resolved or the permit is revised to meet 12 the objection of the federal administrator. Upon request of an applicant, the 13 department shall assist the applicant in an effort to resolve promptly an objection by 14 the federal administrator. 15 (b) Within 60 days after the close of the 45-day period under (a) of this 16 section, and in accordance with procedures established in federal regulations adopted 17 under 42 U.S.C. 7661b(2) (Clean Air Act, sec. 505b(2)), a person may petition the 18 federal administrator to file an objection to the permit. 19 (c) Regulations adopted under AS 46.14.210(a)(11) may provide that while a 20 petition under (b) of this section is pending, compliance with an operating permit 21 issued under (a) of this section is considered to be compliance with this chapter insofar 22 as this chapter requires an operating permit. 23 Sec. 46.14.250. PERMIT ADMINISTRATION FEES. (a) The owner or 24 operator of a facility who is required to apply for a permit under AS 46.14.205 shall 25 pay to the department all assessed permit administration fees established under (b) of 26 this section except that the person named in a permit issued under AS 46.14.225 shall 27 pay assessed permit administration fees incurred after the date the permit is issued. 28 (b) The department shall establish by regulation a permit administration fee 29 rate. The rate shall be set on the basis of dollars per hour of service provided for a 30 specific permittee. The department may periodically modify a fee rate to reflect 31 increases or decreases in the actual reasonable costs of providing the services. The
01 department shall assess permit administration fees on a periodic basis after service is 02 rendered, but the department may assess a retainer toward this fee at the time work 03 commences on a permit application or at the time departmental services are requested 04 for the development of a permit application. 05 (c) For purposes of this section, "permit administration fees" are fees assessed 06 to recover costs incurred by the department for the following services to a specific 07 facility that are performed in order to implement the permit program established under 08 this chapter: 09 (1) providing preapplication consultation, assistance, and completeness 10 review of applications for a permit, permit amendment, permit modification, or 11 renewal; 12 (2) reviewing or assisting in preparation of facility specific permit 13 support documents, including on-site evaluations; 14 (3) receiving, reviewing, preparing, processing, and issuing permits, 15 permit amendments, modifications, reopenings, renewals and revocations, and 16 reissuance; 17 (4) preparing general operating permits under AS 46.14.240; however, 18 costs must be allocated on an equitable basis to each facility covered by the general 19 operating permit; 20 (5) performing facility inspections and compliance evaluations; 21 (6) reviewing, compiling, and reporting facility specific emission, 22 ambient monitoring, or process measurement data; 23 (7) preparing, evaluating, or processing plans or documents to obtain 24 facility compliance or rectify noncompliance with permit terms and conditions, but not 25 including any enforcement actions; and 26 (8) assessing and collecting delinquent permit administration fees and 27 emission fees. 28 Sec. 46.14.252. EMISSION FEES. (a) A person named as permittee in a 29 permit issued under AS 46.14.225 shall pay to the department all assessed emission 30 fees established under this section. 31 (b) The department shall establish by regulation an emission fee rate. The rate
01 shall be set on the basis of dollars per ton of air contaminant emitted. The department 02 shall assess emission fees annually on or before July 1 based on a facility's estimated 03 assessable emissions for the subsequent fiscal year. The department may allow 04 installment payments of assessed emission fees. 05 (c) For a facility that begins operation during a fiscal year, the department 06 shall prorate the first year's fee to cover the time period occurring before the next 07 annual payment date. The owner or operator shall pay the initial emission fee upon 08 commencement of lawful facility operation unless authorized to pay by installments 09 under (b) of this section. The first year's emission fee may not duplicate a fee paid 10 by a permittee under AS 44.46.025 for the same sources for the same time period. If 11 the fees would otherwise be duplicative, the department shall provide a credit toward 12 the emission fee in the amount of the unused balance of the fee collected under 13 AS 44.46.025. The unused balance to be credited shall be based on prorating the total 14 original fee under AS 44.46.025 for the time period for which an emission fee applies. 15 (d) The department shall design the emission fee rate to distribute the total 16 annual incurred costs described under (h) of this section in a manner so that each 17 permittee is assessed an annual emission fee that reflects an equitable apportionment 18 of the fees paid by each facility type, size, or category. In making an apportionment 19 under (f) of this section, the department shall consider factors such as exemptions or 20 reduced rates for small amounts of emissions, limits upon assessable emissions, 21 exempting small business facilities from the costs of the small business assistance 22 program established under AS 46.14.400, air pollution prevention efforts, and other 23 factors that may ensure fair distribution of the costs described under (h) of this section. 24 (e) The department shall set the initial fee rate for the first two years following 25 approval of the permit program under this chapter by the federal administrator on the 26 basis of dollars per ton of assessable emissions. In calculating assessable emissions 27 for the purpose of this subsection, the department may not include an amount in excess 28 of 4,000 tons per year of an air contaminant not defined as a regulated pollutant under 29 42 U.S.C. 7661a(b)(3)(B)(ii) (Clean Air Act, sec. 502 (b)(3)(B)(ii)). 30 (f) After the two years described in (e) of this section, the department shall set 31 the emission fee rate in regulation to implement the policy established in (d) of this
01 section. The department shall base the regulation on the findings of a report, which 02 the department shall make available to the public with proper notice before adoption 03 of the regulation, that examines 04 (1) fees assessed; 05 (2) alternative fee rates or formulas; 06 (3) types, sizes, or categories of facilities, their respective emission 07 quantities, and their previous or proposed fee burden; 08 (4) apparent inequities encountered in the initial fee rate; 09 (5) total costs incurred or anticipated to be incurred under (h) of this 10 section; and 11 (6) other factors that ensure fair distribution of the costs described in 12 (h) of this section. 13 (g) The department shall periodically, and at least every three years, evaluate 14 the fee rate set under this section to determine if it is responsive to the policy 15 established in (d) of this section and shall provide its findings in a report. 16 (h) In this section, 17 (1) "assessable emission" means the quantity of each air contaminant 18 for which emission fees are assessed and is the lesser of 19 (A) the annual rate of emissions, in tons per year, of each air 20 contaminant authorized by the facility's operating permit; or 21 (B) the projected annual rate of emissions, in tons per year, of 22 each air contaminant by the facility based upon previous actual annual 23 emissions if the permittee can demonstrate to the department its previous actual 24 annual rate of emissions through monitoring, modelling, calculations, or other 25 method acceptable to the department; 26 (2) "emission fees" mean fees assessed to recover costs incurred by the 27 department for execution of the permit program established under this chapter that are 28 generally not associated with service provided to a specific facility; the costs may 29 include rent, utilities, permit program management, administrative and accounting 30 services, and other costs as identified by the department in regulations. 31 Sec. 46.14.255. INTEREST FOR NONPAYMENT. (a) The department may
01 assess interest against the owner and operator, computed under AS 45.45.010(a), after 02 a fee is due under this chapter and is unpaid. 03 (b) If a permittee has failed to pay a fee imposed under AS 46.14.250 - 04 46.14.252, a penalty imposed under AS 46.14.830, a penalty, assessment, or damage 05 award imposed under AS 46.03.760(f) or 46.03.790 for a violation of this chapter, or 06 interest imposed under (a) of this section, the department may, after 30 days' written 07 notice to the permittee refuse to issue or renew permits requested by the permittee or 08 refuse to amend or modify a permit when the amendment or modification is requested 09 by the permittee. 10 Sec. 46.14.260. DURATION OF OPERATING PERMITS. (a) An operating 11 permit under this chapter, including an operating permit that contains a compliance 12 schedule, shall be issued for a fixed term of five years after the date of issue, except 13 as provided for temporary operations under AS 46.14.280 or unless a shorter term is 14 requested by the permit applicant. 15 (b) If a timely and complete application for renewal of an operating permit is 16 submitted to the department, the existing permit issued under this chapter does not 17 expire until the renewal permit has been issued or denied. 18 Sec. 46.14.265. REOPENING OF PERMITS. (a) A permit issued under this 19 chapter is subject to reopening by the department based on the determination of the 20 federal administrator that the permit must be revised to comply with 42 U.S.C. 7401 - 7671q (Clean Air Act). 21 (b) A permit issued under this chapter is subject to reopening by the 22 department if the permit is issued to a major facility and has a remaining duration of 23 three or more years. The department shall reopen a permit described in this subsection 24 to incorporate changes in law, or to impose equivalent emission limitations, that 25 become applicable after the permit is issued. The department shall make revisions 26 allowed under this subsection as soon as practicable, but, regarding a change in law, 27 no later than 18 months after the change in law takes effect. The department may not 28 reopen a permit under this subsection if the change in law is not effective until after 29 the date that the permit expires. Reopening of a permit under this subsection shall be 30 treated as a permit renewal by the department if the procedural requirements for permit 31 renewal have been met.
01 (c) Proceedings to reopen a permit shall follow the same procedure as for 02 initial permit issuance and shall affect only those parts of the permit for which the 03 department had cause to reopen under this section. 04 (d) The department shall provide written notice of intent to reopen and revise 05 a permit issued under this chapter to the owner and operator of a facility not less than 06 30 days before the date the permit is to be reopened, except that the department may 07 provide a shorter period in the event of an emergency. 08 Sec. 46.14.267. AMENDMENT OF PERMIT. (a) A permit may be amended 09 on application of an owner and operator if the proposed amendments relate to 10 operational changes that do not 11 (1) result in an exceedance of allowable emissions specified in the 12 permit; 13 (2) violate an express prohibition in the permit; or 14 (3) qualify as a modification. 15 (b) The application for an amendment under this section must contain 16 (1) a description of the change; 17 (2) schematic drawings, if appropriate, representing the change; and 18 (3) certification by the owner and operator that the proposed 19 amendment meets the criteria for amendment. 20 (c) The owner and operator shall file the proposed amendment with the 21 department personally or by certified mail. The department shall have seven work 22 days after receipt in which to object to the amendment. If the department fails to 23 object, the owner and operator may proceed in accordance with the amendment. If the 24 department objects to the amendment, the department shall notify the owner and 25 operator in person or by certified mail. The department shall state its objection in 26 writing with particularity. If the owner and operator agree with the objection, they 27 may file an amendment that complies with the objection. If the owner and operator 28 disagree with the objection, they shall, within seven days of receipt of the objection, 29 inform the department of their disagreement and provide additional information 30 necessary to explain the disagreement. The department shall accept or reject the 31 amendment within seven days after receiving the additional information.
01 (d) The owner and operator may request a hearing to review the rejection of 02 the amendment within 30 days after receipt of the notice of rejection. Failure to 03 request a hearing within 30 days after the receipt of the rejection constitutes a waiver 04 of the right of review. 05 Sec. 46.14.270. TERMINATION, MODIFICATION, AMENDMENT, OR 06 REVOCATION AND REISSUANCE OF PERMITS. After 30 days' written notice 07 to the permittee, the department may 08 (1) terminate, modify, or revoke and reissue a construction or operating 09 permit if the department finds that 10 (A) the permit was obtained by misrepresentation of material 11 fact or by failure of the owner and operator to disclose fully the facts relating 12 to issuance of the permit; 13 (B) the permittee has violated this chapter, a regulation, a 14 judicial or administrative order, or a material term or condition of a permit, 15 approval, or acceptance issued under this chapter; or 16 (C) the permittee has failed to construct or modify a facility 17 within the time period specified in the construction permit, if any, required 18 under AS 46.14.205(a); 19 (2) modify, or revoke and reissue a construction or operating permit if 20 (A) the department finds that the permit contains a material 21 mistake; 22 (B) there has been a material change in the quantity or type of 23 air contaminant emitted from the facility; or 24 (C) the owner and operator request the action. 25 Sec. 46.14.275. FEDERAL TERMINATION, MODIFICATION, OR 26 REVOCATION AND REISSUANCE OF PERMITS. The department shall take 27 measures practicable and otherwise lawful to avoid termination, modification, or 28 revocation and reissuance by the federal administrator of permits issued by the 29 department under this chapter. 30 Sec. 46.14.280. TEMPORARY OPERATIONS. The department may issue a 31 single operating permit under AS 46.14.225, authorizing a facility to operate at specific
01 multiple locations in the state for temporary periods of time not to exceed one year at 02 any one location. A permit described in this section is valid only for the specific 03 locations identified in the application and authorized by the department. The 04 department may not issue a permit under this section unless the permit contains 05 conditions that will ensure compliance with this chapter at each authorized location, 06 including compliance with ambient air quality standards and applicable increment or 07 visibility requirements adopted under this chapter. A permit under this section must 08 require the owner and operator to notify the department at least 30 days before a 09 change in location of a facility permitted under this section. 10 Sec. 46.14.285. PERMIT AS SHIELD. (a) Compliance with an operating 11 permit, order, or other determination issued under this chapter is considered to be 12 compliance with this chapter and corollary common law. 13 (b) Nothing in this section alters or affects 14 (1) the owner's and operator's obligation to comply with an emergency 15 order issued under AS 46.03.820 or 42 U.S.C. 7603 (Clean Air Act, sec. 303); and 16 (2) the liability of an owner and operator for a violation of applicable 17 requirements of law before or at the time of permit issuance. 18 Sec. 46.14.290. TIMELY AND COMPLETE APPLICATION AS SHIELD. 19 If an owner and operator have submitted a timely and complete application for a 20 permit or a permit renewal, as applicable, but final action has not been taken on the 21 application, the owner's and operator's failure to have an operating permit is not a 22 violation of this chapter unless the delay in final action was due to the failure of the 23 owner and operator to submit information required or requested to process the 24 application. An owner and operator required to have an operating permit under this 25 chapter are not in violation of the operating permit program established under this 26 chapter before the date on which the owner and operator are required to submit an 27 application under AS 46.14.220. 28 Sec. 46.14.293. AUTHORITY OF DEPARTMENT IN CASES OF 29 EMERGENCY. (a) When the commissioner finds that facts and circumstances 30 necessitate emergency use of an unpermitted source or emergency use of a permitted 31 source in a manner not authorized by the permit, the commissioner may waive
01 procedural requirements of this chapter and may authorize emergency use of the 02 source. When acting under this section, the commissioner shall impose conditions 03 necessary to protect human health, welfare, and the environment and may impose other 04 conditions the commissioner finds necessary and appropriate. 05 (b) An authorization issued under this section automatically terminates within 06 a reasonable time after abatement of the emergency, subject to a maximum of 30 days 07 from the date of issuance. However, the commissioner may reissue an authorization, 08 if warranted, that may remain in effect for up to another 30 days. An authorization 09 may be reissued more than once. 10 (c) The commissioner may delegate the commissioner's authority under this 11 section to deputy commissioners and division directors in the department. 12 Sec. 46.14.295. UNAVOIDABLE MALFUNCTIONS. Excess emissions 13 caused by startup, shutdown, malfunction, or nonroutine repairs of a source including 14 pollution control equipment or process equipment may not be considered a violation 15 of a permit or the emission limitation or counted as an increase in emissions unless an 16 ambient air quality standard is exceeded. Nothing in this section limits the 17 department's power to enjoin the emission or require corrective action. 18 Sec. 46.14.297. INSPECTION. An officer or employee of the department 19 designated by the commissioner may, upon presentation of credentials and at 20 reasonable times, enter upon or through any premises of a facility regulated under this 21 chapter to 22 (1) inspect and copy any records required to be maintained; 23 (2) inspect any source, monitoring equipment, or method required to 24 be used; or 25 (3) sample any emissions that the owner and operator of the facility is 26 required to sample. 27 ARTICLE 3. MOTOR VEHICLE POLLUTION CONTROL PROGRAM. 28 Sec. 46.14.300. MOTOR VEHICLE POLLUTION. (a) When the department 29 determines that the state of knowledge and technology may allow or make appropriate 30 the control of emissions from motor vehicles to further air quality control, the 31 department may provide, by regulation, for the control of the emissions from motor
01 vehicles. The regulations may prescribe requirements for the installation and use of 02 equipment designed to reduce or eliminate emissions and for the proper maintenance 03 of this equipment. 04 (b) Unless otherwise exempted by law, a person shall maintain in operating 05 condition any element of the air pollution control system or mechanism of a motor 06 vehicle that the department, by regulation, requires to be maintained in or on the motor 07 vehicle. Failure to maintain a required system or mechanism in operating condition 08 subjects the motor vehicle's registration to suspension or cancellation. A motor 09 vehicle whose registration has been suspended or canceled under this subsection is not 10 eligible for subsequent registration until the owner or operator obtains certification 11 from the department, based on a demonstration that the air pollution control system or 12 mechanism is restored to operating condition. 13 (c) The department shall consult with the Department of Public Safety 14 regarding implementation of the motor vehicle pollution control program. The 15 Department of Public Safety shall cooperate with the department in implementing the 16 program. 17 (d) If the department adopts regulations requiring the maintenance of air 18 pollution control systems or mechanisms in motor vehicles to control emissions from 19 the vehicle, a motor vehicle subject to those regulations may not be issued a certificate 20 of inspection unless the required air pollution control system or mechanism has been 21 inspected in accordance with the standards, testing techniques, and instructions 22 furnished by the department and the motor vehicle has been found to meet those 23 standards. A valid certificate of inspection for the emission control system, if required 24 by the department, must be presented to the Department of Public Safety before that 25 department may register a motor vehicle. 26 ARTICLE 4. SMALL BUSINESS ASSISTANCE PROGRAM. 27 Sec. 46.14.400. SMALL BUSINESS ASSISTANCE PROGRAM. (a) A small 28 business assistance program is established in the department. The department shall 29 include the program in the state air quality control plan developed under 42 U.S.C. 30 7401 - 7671q (Clean Air Act). 31 (b) The small business assistance program shall, by regulation, meet the
01 requirements of 42 U.S.C. 7661f(a) (Clean Air Act, sec. 507(a)), including the 02 requirement that a small business advocate be designated. 03 (c) Except as provided in AS 46.14.410(b), the department shall provide 04 assistance as described in (b) of this section to a requesting facility that is not a small 05 business concern as defined in 15 U.S.C. 631 but that is subject to the requirements 06 of this chapter if the legislature appropriates money from the general fund for this 07 purpose. 08 Sec. 46.14.410. POWER TO LIMIT SMALL BUSINESS ASSISTANCE 09 PROGRAM. (a) After consultation with the federal administrator and the 10 administrator of the United States Small Business Administration and after providing 11 notice and opportunity for public hearing, the department may exclude from the scope 12 of the small business assistance program established in AS 46.14.400 a category or 13 subcategory of small business facilities that the department finds to have sufficient 14 technical and financial capabilities to meet the requirements of this chapter and federal 15 law without the assistance provided under AS 46.14.400 - 46.14.420. 16 (b) Nothing in AS 46.14.400(c) precludes the department from excluding a 17 business facility or category of business facilities that the department finds to have 18 sufficient technical and financial capabilities to meet the requirements of this chapter 19 without assistance from the department. 20 Sec. 46.14.420. COMPLIANCE ADVISORY PANEL. (a) There is 21 established in the department a compliance advisory panel. 22 (b) The panel consists of 23 (1) two members who are not owners or representatives of owners of 24 small business facilities, selected by the governor to represent the general public; 25 (2) one member selected by the commissioner to represent the 26 department; and 27 (3) four members who are owners or representatives of owners of small 28 business facilities, selected as follows: 29 (A) one shall be selected by the president of the senate and one 30 shall be selected by the speaker of the house; 31 (B) if there are members of the senate who are not part of the
01 majority caucus of the senate, the leader of the largest nonmajority group shall 02 select a panel member; if all members of the senate are in the majority caucus, 03 then the president of the senate shall select a second panel member in addition 04 to the selection authorized under (A) of this paragraph; 05 (C) if there are members of the house who are not part of the 06 majority caucus of the house, the leader of the largest nonmajority group shall 07 select a panel member; if all members of the house are in the majority caucus, 08 then the speaker of the house shall select a second panel member in addition 09 to the selection authorized under (A) of this paragraph. 10 (c) The panel members shall serve without compensation but are entitled to 11 transportation expenses and per diem as authorized for members of boards and 12 commissions under AS 39.20.180. 13 (d) The compliance advisory panel shall 14 (1) elect a chair and agree upon procedures by which the panel will 15 function; 16 (2) meet annually and at the call of the chair and give public notice of 17 panel meetings as required under AS 44.62.310 - 44.62.312; 18 (3) prepare advisory opinions concerning the effectiveness of the small 19 business assistance program, difficulties encountered in making the program efficient 20 and effective, and degree of enforcement and severity of air pollution offenses; 21 (4) make periodic reports to the administrator concerning the 22 compliance of the small business assistance program with requirements of 44 U.S.C. 23 3501 (Paperwork Reduction Act), 5 U.S.C. 601 (Regulatory Flexibility Act), and 5 24 U.S.C. 504 (Equal Access to Justice Act); 25 (5) review information designed to assist small business facilities in 26 complying with this chapter to ensure that the information is understandable by the 27 public; and 28 (6) use the assistance of the small business advocate designated under 29 AS 46.14.400(b) in the development and dissemination of panel reports and advisory 30 opinions. 31 ARTICLE 5. LOCAL PROGRAMS.
01 Sec. 46.14.500. LOCAL AIR QUALITY CONTROL PROGRAMS. (a) With 02 the approval of the department, a municipality may establish and administer within its 03 jurisdiction a local air quality control program that operates in lieu of and is consistent 04 with all or part of the department's air quality program as established under this 05 chapter. A first or second class borough may administer an air quality control program 06 approved by the department under this subsection on an areawide basis and is not 07 subject to the restrictions for acquiring additional areawide powers specified in 08 AS 29.35.300 - 29.35.350. A third class borough may administer a local air quality 09 control program approved by the department under this subsection only in a service 10 area formed under AS 29.35.490(b) or (c). 11 (b) With the approval of the department, two or more municipalities or other 12 entities may create a local air quality district for the purpose of jointly administering 13 a local air quality control program within the boundaries of the air quality district. 14 (c) If the department finds that the location, character, or extent of particular 15 concentrations of population, air contaminant sources, the geographic, topographic, or 16 meteorological considerations, or a combination of these factors make impracticable 17 the maintenance of appropriate levels of air quality without an areawide air pollution 18 control program, the department may determine the boundaries within which a local 19 air quality control program is necessary and direct that a local air quality control 20 program spanning those boundaries is the only acceptable alternative to direct state 21 administration. 22 (d) A municipality or a local air quality district seeking department approval 23 for a local air quality control program shall enter into a cooperative agreement with 24 the department that is designed to avoid unnecessary duplication of responsibilities. 25 The cooperative agreement must include provisions specifying 26 (1) the respective duties and authority of the department and the 27 municipality or local air quality district in the administration of the local air quality 28 control program; 29 (2) the authority of the municipality or the local air quality district to 30 employ staff to administer the local air quality control program; 31 (3) duties of staff employed under (2) of this subsection;
01 (4) respective enforcement responsibilities of the department and the 02 municipality or the local air quality district. 03 (e) A local air quality control program shall provide for the exemption of a 04 locally registered motor vehicle from motor vehicle emission requirements adopted 05 under AS 46.14.300 if the motor vehicle is not used within the program's jurisdiction. 06 (f) A municipality or a local air quality district administering a program under 07 this section shall administer its local air quality control program according to this 08 chapter, regulations adopted under this chapter, and its cooperative agreement under 09 (d) of this section. A municipality or local air quality district's program may, upon 10 a finding by the local agency and an affirmative agreement by the department, 11 establish a more stringent requirement than the stationary source permit program 12 authorized under this chapter if public health or air quality effects warrant the 13 additional or more stringent requirement. This subsection does not prohibit a 14 municipality or local air quality control district from establishing a mobile source 15 program more stringent than the state program without making findings of public 16 health or air quality effects. 17 (g) A determination, order, permit, or permit action issued under a local air 18 quality control program is considered to be a determination, order, permit, or permit 19 action of the department. 20 (h) Notwithstanding any other law or rule of law, the department may not 21 delegate or enable another department or government entity to establish fee rates or 22 collect fees under AS 46.14.250 or 46.14.252. 23 Sec. 46.14.510. INADEQUACY OF LOCAL PROGRAM. (a) If a 24 municipality or a local air quality district has an approved local air quality control 25 program under AS 46.14.500 and the department determines that the program is being 26 implemented in a manner that fails to meet the terms of the cooperative agreement or 27 is otherwise being inappropriately administered, the department shall give written 28 notice setting out its determination to the municipality or local air quality district. 29 Within 45 days after giving written notice, the department shall conduct a public 30 hearing on the matter. The hearing shall be recorded by any means that ensures an 31 accurate record.
01 (b) If, after the hearing, the department upholds the determination made in the 02 written notice, the department shall provide the municipality or local air quality district 03 with a written finding setting out the nature of the deficiencies and a description of the 04 necessary action to be taken to ensure that the local air quality control program 05 prevents or controls air pollution. The department shall provide its finding to the 06 municipality or district within 45 days after closure of the public hearing record. The 07 department shall set a reasonable period of time for the municipality or local air 08 quality district to take corrective action in response to the department's finding. 09 (c) If the municipality or local air quality district fails to take corrective action 10 within the time period set by the department under (b) of this section, the department 11 shall terminate the cooperative agreement and resume management of air quality 12 control in the affected jurisdiction. If the municipality or the local air quality district 13 partially remedies, to the department's satisfaction, the deficiencies found in the 14 determination, the department shall amend the cooperative agreement to reflect a 15 modified allocation of responsibilities between the department and municipality or the 16 local air quality district. 17 (d) A municipality or local air quality district that has had its cooperative 18 agreement terminated may, with the department's approval, resume a local air quality 19 control program if the municipality or district agrees to comply with AS 46.14.500 and 20 with any corrective action plan required by the department. 21 (e) If the department finds that control of a particular class of facility or 22 source, because of its complexity or magnitude, is beyond the reasonable capability of 23 the municipality or the local air quality district or may be more efficiently and 24 economically controlled at the state level, the department may assume and retain 25 jurisdiction over the class of facility or source. Classifications under this subsection 26 may be based on the nature of facilities or sources involved, their size relative to the 27 size of the communities in which they are located, or another basis established by the 28 department. 29 Sec. 46.14.520. STATE AND FEDERAL AID. (a) A municipality or local air 30 quality district with a local air quality control program may apply for, receive, 31 administer, and spend state aid for the control of air emissions or the development and
01 administration of the program if an application is first submitted to and approved by 02 the department. Subject to available money appropriated by the legislature for the 03 purpose of this section, the department may approve an application if it is consistent 04 with the terms and conditions of the applicable cooperative agreement and meets the 05 requirements of this chapter. 06 (b) A municipality or local air quality district with a local air quality control 07 program may apply for, receive, administer, and spend federal aid for the control of 08 air emissions or the development and administration of the program. 09 ARTICLE 6. MISCELLANEOUS PROVISIONS. 10 Sec. 46.14.800. PUBLIC RECORDS. Except as provided in AS 46.14.810, 11 permits, permit applications, emissions and monitoring reports, compliance reports, 12 certifications, and monitoring, reporting, and quality assurance plans in the 13 department's possession and control are available to the public for inspection and 14 copying. 15 Sec. 46.14.810. CONFIDENTIALITY OF RECORDS. Records, reports, and 16 information, and parts of records, reports, and information, other than emission data, 17 in the department's possession and control are considered confidential records and shall 18 be kept confidential and in separate files if 19 (1) the owner and operator have certified to the department or 20 authorized local program that public disclosure would tend to affect adversely the 21 owner's and operator's competitive position; and 22 (2) the records, reports, or information, or parts of the records, reports, 23 or information, would divulge production figures, sales figures, processes, production 24 techniques, or financial data of the owner and operator that are entitled to protection 25 as trade secrets. 26 Sec. 46.14.820. RESPONSIBILITIES OF OWNER AND OPERATOR. 27 Notwithstanding use of the conjunctive or disjunctive in a provision of this chapter, 28 before issuance of a permit under AS 46.14.225 both the owner and operator of a 29 facility are responsible for compliance with this chapter and regulations adopted under 30 this chapter. If the owner and operator of the facility are separate persons, only one 31 person is required to discharge a specific responsibility. Subsequent to issuance of a
01 permit under AS 46.14.225, only the permittee is responsible for permitted operations. 02 The permittee shall have a designated agent for service of process in the state. 03 Sec. 46.14.830. ADMINISTRATIVE PENALTIES FOR AIR POLLUTION. 04 (a) Based on credible evidence of a violation, an officer or employee of the 05 department designated by the commissioner may assess an administrative penalty 06 against a person who violates, or causes, or allows to be violated a provision of this 07 chapter, a regulation adopted under this chapter, or a material term or condition of an 08 order, permit, or approval of the department under this chapter. 09 (b) An administrative penalty assessed under this section may not exceed 10 $1,000 a day per source for each offense, subject to a maximum of $5,000 a day for 11 no more than 10 days, regardless of the number of sources and offenses during those 12 10 days. An assessment under this section may not be made more than one year after 13 the date of violation. If a violation of a provision, regulation, term, or condition 14 continues from day to day, each day is a separate offense. However, an assessment 15 may not be made for a day that occurred before the owner and operator received 16 written notice of the violation unless the violation was reasonably obvious. In 17 determining the amount of a penalty assessed under this section, the department may 18 consider the effect of the offense on the public health or the environment, the size of 19 the business, the economic effect of the penalty on the business, the violator's good 20 faith effort to comply, prior history of compliance or noncompliance with this chapter, 21 the need to deter future offenses, the economic benefit of noncompliance realized by 22 the offender, the duration of the violation as established by credible evidence other 23 than the applicable test method, payment by the violator of penalties previously 24 assessed for the same violation, the seriousness of the violation, and other factors that 25 the department considers relevant. The department shall, by regulation, prepare, 26 publish, and make available to interested persons, a penalty policy describing the 27 factors to be considered in setting penalties, the methods for weighing the factors, and 28 other aspects of penalty computation. 29 (c) If a penalty is assessed under this section, the department shall provide the 30 assessment notice to the person affected, by personal service or by certified mail, 31 return receipt requested. An administrative penalty assessed under this section
01 becomes a final agency action 30 days after service or mailing of the assessment notice 02 unless an administrative hearing is requested by the person against whom the penalty 03 is assessed. Failure to request an administrative hearing within 30 days after service 04 or mailing of the assessment notice constitutes a waiver of that person's right to an 05 administrative hearing. The department may extend the time periods specified in this 06 subsection for good cause. 07 (d) If an administrative hearing is requested, the department shall grant a 08 hearing and conduct the hearing in accordance with its adjudicatory hearing 09 procedures. In the hearing, the department bears the burden of proving the violation. 10 After the hearing, the department may modify, rescind, or affirm the administrative 11 penalty. The modification, rescission, or affirmation of a penalty under this subsection 12 is a final agency action. 13 (e) A person against whom an administrative penalty is assessed may obtain 14 judicial review of the administrative penalty as provided in Alaska Rules of Appellate 15 Procedure. The court may set aside, or adjust the amount of, the administrative 16 penalty only if the administrative record, taken as a whole, does not contain a 17 reasonable basis to support the finding of offense or the amount of penalty assessed 18 by the department. 19 (f) In lieu of an administrative penalty under this section, the officer or 20 employee authorized under (a) of this section to assess the penalty may order a person 21 to take appropriate action to abate the violation within a reasonable period of time. 22 An order to take appropriate abatement action shall be issued for a first violation of 23 a permit requirement that is not a violation of an emission standard or limitation 24 contained in the permit. The person to whom the order is issued shall, within the time 25 specified in the order, certify in writing to the department that the violation has been 26 abated. A person may not be assessed an administrative penalty and given an order 27 under this subsection for the same violation. 28 (g) Action under this section by the department is an exclusive remedy and 29 prohibits the department from otherwise enforcing this chapter, obtaining an injunction 30 or recovering damages, civil and criminal penalties, restoration expenses, investigation 31 costs, court costs, attorney fees, or other necessary expenses for the same violation
01 unless 02 (1) the violator made an affirmative material misrepresentation to the 03 department about the cause of the violation, the scope of the violation, or the violator's 04 efforts to avoid or correct the violation; or 05 (2) the violation was due to an intentional act or an intentional 06 omission. 07 (h) The assessment of an administrative penalty under this section does not 08 affect the obligation of a person to comply with this chapter or with a regulation, 09 order, permit, or approval of the department under this chapter. 10 (i) If a person fails or refuses to pay an administrative penalty assessed under 11 this section after the penalty has become a final agency action, the department may 12 request the attorney general to commence a judicial action or take other appropriate 13 steps to bring an action to collect the penalty. If the department prevails in court, the 14 court shall order the person to pay 15 (1) the amount of the administrative penalty assessed; 16 (2) interest at the statutory rate under AS 45.45.010(a) from the date 17 the penalty became a final agency action; and 18 (3) reasonable attorney fees and costs incurred by the department in the 19 collection action before the court. 20 (j) Settlement of an action under this section is not considered to be an 21 admission of fact or law, does not preclude the person from raising an available 22 defense, and may not otherwise be used as evidence against the person in other 23 proceedings, including permit approvals or renewals, citizens' suits, or later 24 enforcement actions, except that in an enforcement action brought under AS 46.03.760 25 or 46.03.790, or in a proceeding to renew or issue a permit under this chapter, 26 evidence of more than three violations by a person for the same offense may be used 27 for the purpose of determining penalties, the terms and conditions of a permit, or 28 whether to issue or renew a permit. 29 Sec. 46.14.840. CLEAN AIR PROTECTION FUND. (a) The clean air 30 protection fund is established. The fund consists of fees collected by the department 31 under AS 46.14.250 and 46.14.252 and under regulations authorized by AS 46.14.210,
01 as required by 42 U.S.C. 7661a(b)(3)(C)(iii) (Clean Air Act, sec. 502(b)(3)(C)(iii)) for 02 state participation in the federal emission control permit program. 03 (b) The money deposited into the clean air protection fund under (a) of this 04 section may only be used to cover the reasonable direct and indirect costs required to 05 support the permit program under this chapter and the activities of the small business 06 assistance program that are directed at facilities subject to this chapter, not including 07 court costs or other costs associated with an enforcement action. 08 Sec. 46.14.850. SPECIAL ACCOUNT. Administrative penalties, civil or 09 criminal penalties, fines, assessments, or damages, and interest, attorney fees, and costs 10 collected as a result of a violation relating to this chapter and interest collected under 11 AS 46.14.255 shall be deposited in the general fund and credited to a special account 12 called the "clean air protection account." 13 Sec. 46.14.860. AIR POLLUTION FROM OUTER CONTINENTAL SHELF 14 ACTIVITIES. (a) The department shall seek delegation of authority from the federal 15 administrator to implement and enforce the terms and provisions of 42 U.S.C. 7627 16 (Clean Air Act, sec. 328) for the Pacific and Arctic Ocean areas offshore of the state. 17 The department may adopt regulations that are necessary to acquire this delegated 18 authority. 19 (b) In adopting regulations under this section, the department shall ensure that 20 facilities located within 25 miles of the seaward boundary of the state are subject to 21 the same air quality control requirements that would be applicable if the facility were 22 located in the corresponding onshore area. For purposes of this subsection, facilities 23 located within 25 miles of the seaward boundary of the state include a vessel servicing 24 or associated with the facility while at the facility or en route to or from the facility 25 and within 25 miles of the facility. 26 (c) In this section, "corresponding onshore area" means, with respect to a 27 facility located within 25 miles of the seaward boundary of the state, the onshore 28 attainment or nonattainment area that is closest to the facility, unless the commissioner 29 determines that another area with more stringent requirements relating to control and 30 abatement of air pollution may reasonably be expected to be affected by emissions 31 from the offshore facility; this determination shall be based on the potential for air
01 contaminants from the facility to reach the other onshore area and the potential of the 02 air contaminants to affect the efforts of the other onshore area to attain or maintain a 03 federal ambient air quality standard set under 42 U.S.C. 7470 - 7492 (Title I, Part C, 04 Clean Air Act) or a state equivalent. 05 ARTICLE 7. GENERAL PROVISIONS. 06 Sec. 46.14.900. LIMITATION OF POWERS. This chapter does not 07 (1) grant jurisdiction or authority with respect to air contamination 08 existing solely within a residential dwelling or a commercial or industrial plant, 09 workplace, or shop; 10 (2) affect the relations between employers and employees with respect 11 to or arising out of a condition of air contamination or air pollution; or 12 (3) supersede or limit the applicability of a law or an ordinance relating 13 to sanitation, industrial health, or safety. 14 Sec. 46.14.990. DEFINITIONS. In this chapter, 15 (1) "air contaminant" means a regulated air contaminant or a hazardous 16 air contaminant; 17 (2) "ambient air" means that portion of the atmosphere, external to 18 buildings, to which the general public has access; 19 (3) "ambient air quality standard" means a standard, other than an 20 emission limitation or standard, adopted under AS 46.14.010 or 42 U.S.C. 7409 (Clean 21 Air Act, sec. 109); 22 (4) "certificate of inspection" means a form prepared or approved by 23 the department, signed by a qualified mechanic who attests that the mechanic has 24 inspected a motor vehicle and that the motor vehicle has passed an emissions 25 inspection or received a waiver, and bearing the statement above the mechanic's 26 signature that false statements are punishable as a crime under AS 11.56.210 and 27 AS 46.03.790(a); 28 (5) "commissioner" means the commissioner of environmental 29 conservation; 30 (6) "construct" or "construction" means to fabricate, erect, or install, or 31 to make a physical change, that would result in emissions;
01 (7) "construction permit" means a permit under AS 46.14.205(a); 02 (8) "contaminant outlet" includes exhaust stacks, flares, vents, and other 03 openings in a facility from which an air contaminant could be emitted; 04 (9) "department" means the Department of Environmental Conservation; 05 (10) "emission" means a release of one or more air contaminants to the 06 atmosphere; 07 (11) "emission standard" means a limit on the release of an air 08 contaminant from a facility, contaminant outlet, or fugitive emission source specified 09 as 10 (A) a performance standard requiring a minimum efficiency or 11 emission reduction rate achieved by a device or activity; or 12 (B) an emission limitation establishing a maximum allowable 13 quantity, rate, or concentration to be released from the source; 14 (12) "equivalent emission limitation" means 15 (A) a limitation for hazardous air contaminants established by 16 the federal administrator or the commissioner on a case-by-case basis that is 17 equivalent to the limitation that would apply to a source or facility if an 18 emission standard had been adopted in a timely manner under 42 U.S.C. 19 7412(d) (Clean Air Act, sec. 112(d)); or 20 (B) if the criteria of the early reduction program established in 21 42 U.S.C. 7412(i)(5) (Clean Air Act, sec. 112(i)(5)) are met, a limitation 22 established under that subsection and 42 U.S.C. 7412(j)(5) (Clean Air Act, sec. 23 112(j)(5)); 24 (13) "excess emission" means the emission of an air contaminant in 25 excess of an applicable emission standard in a permit or other applicable regulation; 26 (14) "facility" means one or more structures, buildings, installations, 27 or properties upon which a source or sources are located, that are contiguous or 28 adjacent, and that are owned or operated by the same person or by persons under 29 common control; 30 (15) "federal administrator" means the administrator of the United 31 States Environmental Protection Agency;
01 (16) "fugitive emissions" means emissions of an air contaminant that 02 could not reasonably be emitted from a contaminant outlet; 03 (17) "hazardous air contaminant" means a pollutant listed in or under 04 42 U.S.C. 7412(b) (Clean Air Act, sec. 112(b)); 05 (18) "local air quality control program" means a program authorized 06 under AS 46.14.500 to implement some or all of the provisions of this chapter; 07 (19) "major facility" means a facility that emits or has the potential to 08 emit at least 09 (A) 100 TPY of a regulated air contaminant; 10 (B) 10 TPY of a hazardous air contaminant; or 11 (C) 25 TPY, in the aggregate, of two or more hazardous air 12 contaminants; 13 (20) "malfunction" means a sudden and unavoidable failure of a source, 14 including air pollution control equipment and process equipment, or of a process to 15 operate in a normal or usual manner; "malfunction" does not include a failure that is 16 caused entirely or in part by poor maintenance or careless operation or another 17 reasonably preventable upset condition or reasonably preventable equipment 18 breakdown; 19 (21) "modification" or "modify" means to make a change or a series 20 of changes in operation, or any physical change or addition to a facility or source that 21 increases the actual emissions of an air contaminant; 22 (22) "operating permit" means a permit under AS 46.14.205(b); 23 (23) "operator" means a person or persons who direct, control, or 24 supervise a facility or source that has the potential to emit an air contaminant to the 25 atmosphere; 26 (24) "owner" means a person or persons with a proprietary or 27 possessory interest in a facility or source that has the potential to emit an air 28 contaminant to the atmosphere; 29 (25) "person" has the meaning given in AS 01.10.060 and also includes 30 an agency of the United States, a municipality, the University of Alaska, the Alaska 31 Railroad Corporation, and other departments, agencies, instrumentalities, units, and
01 corporate authorities of the state; 02 (26) "potential to emit" means the maximum quantity of a release of 03 an air contaminant, considering a facility's physical or operational design, based on 04 continual operation of all sources within the facility for 24 hours a day, 365 days a 05 year, reduced by the effect of pollution control equipment and approved state or 06 federal limitations on the capacity of the facility's sources or the facility to emit an air 07 contaminant, including restrictions on hours or rates of operation and type or amount 08 of material combusted, stored, or processed; "potential to emit" does not include 09 (A) a one-time, accidental release of an air contaminant; or 10 (B) the fugitive emissions specifically exempted under the 11 department's regulations; 12 (27) "reconstruct" means to replace components of a facility with new 13 components to such an extent that the fixed capital cost of the new components 14 exceeds 50 percent of the fixed capital cost that would be required to construct a 15 comparable entirely new facility; 16 (28) "register" or "registration" means vehicle registration under 17 AS 28.10; 18 (29) "regulated air contaminant" means 19 (A) a material, compound, or element for which a national or 20 state ambient air quality standard has been adopted; 21 (B) oxides of nitrogen; 22 (C) a volatile organic compound; and 23 (D) a pollutant that is addressed by a standard adopted under 24 42 U.S.C. 7411 - 7412 (Clean Air Act, sec. 111 - 112); 25 (30) "shutdown" means the cessation of operation of any source, 26 including pollution control equipment, process equipment or a process, for any 27 purpose; 28 (31) "small business facility" means a facility that 29 (A) is owned or operated by a person who employs 100 or 30 fewer persons; 31 (B) is a small business concern as defined in 15 U.S.C. 631
01 (Small Business Act); and 02 (C) emits less than 100 TPY of regulated air contaminants; 03 (32) "source" means a device, process, activity, or equipment that 04 causes, or could cause, a release of an air contaminant; 05 (33) "startup" means the setting into operation of any source, including 06 associated pollution control equipment, process equipment or process, for any purpose; 07 (34) "TPY" means tons per year. 08 * Sec. 3. AS 28.10.041(a)(10) is amended to read: 09 (10) the vehicle is subject to a state-approved [LOCAL] emission 10 inspection program adopted [BY MUNICIPAL ORDINANCE] under AS 46.14.300 or 11 46.14.500 [AS 46.03.210], and the vehicle does not meet the standards of that 12 program, unless the vehicle uses a fuel source that does not primarily emit carbon 13 monoxide; 14 * Sec. 4. AS 28.10.423 is amended to read: 15 Sec. 28.10.423. EMISSION CONTROL INSPECTION PROGRAM FEES. In 16 addition to the annual registration fee specified in AS 28.10.421, a $1 fee is imposed 17 upon every vehicle required to be inspected under an emission control program 18 established under AS 46.14.300 or 46.14.500 [AS 46.03.210]. This fee shall be 19 collected at the same time and in the same manner as the registration fee. 20 * Sec. 5. AS 29.10.200 is amended by adding a new paragraph to read: 21 (51) AS 29.35.055 (local air quality control program). 22 * Sec. 6. AS 29.35 is amended by adding a new section to read: 23 Sec. 29.35.055. LOCAL AIR QUALITY CONTROL PROGRAM. A 24 municipality may establish a local air quality control program as provided in 25 AS 46.14.500 only if the municipality has obtained the consent of its governing body 26 through an ordinance authorizing the participation. This section applies to home rule 27 and general law municipalities. 28 * Sec. 7. AS 29.35.200(b) is amended to read: 29 (b) A first class borough may by ordinance exercise the following powers on 30 an areawide basis: 31 (1) provide transportation systems;
01 (2) provide water pollution control; 02 (3) provide air pollution control in accordance with AS 46.14.500 03 [AS 46.03.140 - 46.03.230]; 04 (4) license day care facilities; 05 (5) license, impound, and dispose of animals. 06 * Sec. 8. AS 29.35.210(a) is amended to read: 07 (a) A second class borough may by ordinance exercise the following powers 08 on a nonareawide basis: 09 (1) provide transportation systems; 10 (2) regulate the offering for sale, exposure for sale, sale, use, or 11 explosion of fireworks; 12 (3) license, impound, and dispose of animals; 13 (4) subject to AS 29.35.050, provide garbage, solid waste, and septic 14 waste collection and disposal; 15 (5) provide air pollution control under AS 46.14.500 [IN 16 ACCORDANCE WITH AS 46.03.140 - 46.03.230]; 17 (6) provide water pollution control; 18 (7) participate in federal or state loan programs for housing 19 rehabilitation and improvement for energy conservation; 20 (8) provide for economic development; 21 (9) provide for the acquisition and construction of local service roads 22 and trails under AS 19.30.111 - 19.30.251; 23 (10) establish an emergency services communication center under AS 24 29.35.130; 25 (11) subject to AS 28.01.010, regulate the licensing and operation of 26 motor vehicles and operators; 27 (12) engage in activities authorized under AS 29.47.460; 28 (13) contain, clean up, or prevent a release or threatened release of oil 29 or a hazardous substance, and exercise a power granted to a municipality under 30 AS 46.04, AS 46.08, or AS 46.09; the borough shall exercise its authority under this 31 paragraph in a manner that is consistent with a regional master plan prepared by the
01 Department of Environmental Conservation under AS 46.04.210. 02 * Sec. 9. AS 29.35.210(b) is amended to read: 03 (b) A second class borough may by ordinance exercise the following powers 04 on an areawide basis: 05 (1) provide transportation systems; 06 (2) license, impound, and dispose of animals; 07 (3) provide air pollution control under AS 46.14.500 [IN 08 ACCORDANCE WITH AS 46.03.140 - 46.03.230]; 09 (4) provide water pollution control; 10 (5) license day care facilities. 11 * Sec. 10. AS 37.05.146(4) is amended by adding a new subparagraph to read: 12 (R) clean air protection fund (AS 46.14.840). 13 * Sec. 11. AS 44.46.025(a) is amended to read: 14 (a) The Department of Environmental Conservation may adopt regulations that 15 prescribe reasonable fees, and establish procedures for the collection of the fees, to 16 cover the direct costs of the following services provided by the department: 17 (1) inspections, permit administration, plan review and approval, and 18 other related services provided under AS 03.05, AS 17.20, and AS 18.35; 19 (2) the emission control permitting program and the motor vehicle 20 pollution control program under AS 46.14 [AIR QUALITY PERMITS UNDER 21 AS 46.03.140 AND 46.03.160]; 22 (3) hazardous waste permits under AS 46.03.299 and 46.03.302; 23 (4) plan approvals and permits for sewerage system and treatment 24 works and wastewater disposal systems, and plan approvals for drinking water systems, 25 under AS 46.03.720; 26 (5) oil discharge financial responsibility approvals under AS 46.04.040; 27 (6) oil discharge contingency plan approvals under AS 46.04.030; 28 (7) water and wastewater operator training under AS 46.30. 29 * Sec. 12. AS 44.62.330(a)(44) is amended to read: 30 (44) Department of Environmental Conservation, except to the extent 31 that AS 44.62.360 - 44.62.400 are inconsistent with the manner in which proceedings
01 are initiated under the provisions of AS 46.03 and AS 46.14; 02 * Sec. 13. AS 45.45.400(a) is amended to read: 03 (a) A person engaged in the business of selling used motor vehicles may not 04 transfer or assign the owner's title or interest in the used vehicle to a person who 05 resides in an area subject to a state-approved emission inspection [A 06 MUNICIPALITY THAT HAS AN AIR POLLUTION CONTROL] program 07 established under AS 46.14.300 or 46.14.500 [AS 46.03.210] and who intends to use 08 the vehicle in that area [MUNICIPALITY], unless the vehicle has a certificate of 09 compliance or noncompliance as required under the air pollution control requirements 10 applicable in that area [MUNICIPALITY]. 11 * Sec. 14. AS 46.03.760(f) is amended to read: 12 (f) A person who violates or causes or permits to be violated a provision of 13 AS 46.03.250 - 46.03.314, AS 46.14, or a regulation, a lawful order of the department, 14 or a permit, approval, or acceptance, or term or condition of a permit, approval, or 15 acceptance issued under AS 46.03.250 - 46.03.314 or AS 46.14 is liable, in a civil 16 action, to the state for a sum to be assessed by the court of not less than $500 nor 17 more than $100,000 for the initial violation, nor more than $10,000 for each day after 18 that on which the violation continues, and that shall reflect, when applicable, 19 (1) reasonable compensation in the nature of liquidated damages for 20 any adverse environmental effects caused by the violation, that shall be determined by 21 the court according to the toxicity, degradability and dispersal characteristics of the 22 substance discharged, the sensitivity of the receiving environment, and the degree to 23 which the discharge degrades existing environmental quality; 24 (2) reasonable costs incurred by the state in detection, investigation, and 25 attempted correction of the violation; 26 (3) the economic savings realized by the person in not complying with 27 the requirement for which a violation is charged; and 28 (4) the need for an enhanced civil penalty to deter future 29 noncompliance. 30 * Sec. 15. AS 46.03.760 is amended by adding a new subsection to read: 31 (g) When assessing a civil penalty under this section for a violation of
01 AS 46.14, the court shall reduce the civil penalty by an amount ordered to be paid 02 under AS 46.14.830 by the same person for the same offense. 03 * Sec. 16. AS 46.03.765 is amended to read: 04 Sec. 46.03.765. INJUNCTIONS. The superior court has jurisdiction to enjoin 05 a violation of this chapter, AS 46.04, [OR] AS 46.09, AS 46.14, or of a regulation, a 06 lawful order of the department, or permit, approval, or acceptance, or term or condition 07 of a permit, approval, or acceptance issued under this chapter, AS 46.04, [OR] 08 AS 46.09, or AS 46.14. In actions brought under this section, temporary or 09 preliminary relief may be obtained upon a showing of an imminent threat of continued 10 violation, and probable success on the merits, without the necessity of demonstrating 11 physical irreparable harm. The balance of equities in actions under this section may 12 affect the timing of compliance, but not the necessity of compliance within a 13 reasonable period of time. 14 * Sec. 17. AS 46.03.780(a) is amended to read: 15 (a) A person who violates a provision of this chapter, AS 46.04, [OR] 16 AS 46.09, or AS 46.14, or who fails to perform a duty imposed by this chapter, 17 AS 46.04, [OR] AS 46.09, or AS 46.14, or violates or disregards an order, permit, or 18 other determination of the department made under the provisions of this chapter, 19 AS 46.04, [OR] AS 46.09, or AS 46.14, respectively, and thereby causes the death of 20 fish, animals, or vegetation or otherwise injures or degrades the environment of the 21 state is liable to the state for damages. 22 * Sec. 18. AS 46.03.790(a) is amended to read: 23 (a) Except as provided in (d) of this section, a person is guilty of a class A 24 misdemeanor if the person with criminal negligence 25 (1) violates a provision of this chapter, AS 46.04, [OR] AS 46.09, or 26 AS 46.14, a regulation or order of the department, or a permit, approval, or acceptance, 27 or a term or condition of a permit, approval, or acceptance issued under this chapter, 28 AS 46.04, [OR] AS 46.09, or AS 46.14; 29 (2) fails to provide information or provides false information required 30 by AS 46.03.755, AS 46.04, or AS 46.09, or by a regulation adopted by the 31 department under AS 46.03.755, AS 46.04, or AS 46.09; [OR]
01 (3) makes a false statement or representation in an application, label, 02 manifest, record, report, permit, or other document filed, maintained, or used for 03 purposes of compliance with AS 46.03.250 - 46.03.314 applicable to hazardous wastes 04 or a regulation adopted by the department under AS 46.03.250 - 46.03.314; 05 (4) makes a false statement, representation, or certification in an 06 application, notice, record, report, permit, or other document filed, maintained, 07 or used for purposes of compliance with AS 46.14 or a regulation adopted under 08 AS 46.14; or 09 (5) renders inaccurate a monitoring device or method required to 10 be maintained under AS 46.14, a regulation adopted under AS 46.14, or a permit 11 issued by the department or a local air quality control program under AS 46.14. 12 * Sec. 19. AS 46.03.790 is amended by adding a new subsection to read: 13 (h) Notwithstanding AS 12.55.035(b), upon conviction of an offense related 14 to AS 46.14 and described in (a) of this section, a defendant who is not an 15 organization may be sentenced to pay a fine of not more than $10,000 for each 16 separate offense. 17 * Sec. 20. AS 46.03.850(a) is amended to read: 18 (a) When, in the opinion of the department, a person is violating or is about 19 to violate a provision of this chapter, [OR] AS 46.04, or AS 46.14, or a regulation or 20 lawful order of the department, or a permit or certificate, or a term or condition of a 21 permit or certificate issued by the department under this chapter, [OR] AS 46.04, 22 AS 46.14, the department may notify the person of its determination by personal 23 service or certified mail. The determination and notice do not constitute an order under 24 AS 46.03.820. 25 * Sec. 21. AS 46.03.875 is amended to read: 26 Sec. 46.03.875. REMEDIES CUMULATIVE. Except as provided in 27 AS 46.14.830, [ALL] remedies provided by this chapter, [OR] AS 46.04, or AS 46.14 28 are cumulative, and the securing of relief, whether injunctive, civil, or criminal, under 29 a section of this chapter, [OR] AS 46.04, or AS 46.14 does not stop the state from 30 obtaining relief under any other section of this chapter, [OR] AS 46.04, or AS 46.14. 31 * Sec. 22. AS 46.03.890(b) is amended to read:
01 (b) Inspection and enforcement employees of the department designated by the 02 commissioner are peace officers in the performance of their duties under this chapter, 03 AS 46.04, [AS 46.03, AND] AS 46.09, and AS 46.14. 04 * Sec. 23. AS 46.08.075(a) is amended to read: 05 (a) The state has a lien for expenditures by the state from the oil and 06 hazardous substance release response fund or from any other state fund, for the costs 07 of response, containment, removal, or remedial action resulting from an oil or 08 hazardous substance release [SPILL], or, with respect to response costs, the substantial 09 threat of a release of oil or a hazardous substance against all property owned by a 10 person who is determined by the commissioner to be liable for the expenditures under 11 this chapter, AS 46.03, AS 46.04, AS 46.14, 42 U.S.C. 9607, or other state or federal 12 law. The lien includes interest, at the maximum rate allowable under AS 45.45.010(a), 13 from the date of the expenditures. The state may file an action in a court of competent 14 jurisdiction in order to foreclose on the lien. 15 * Sec. 24. AS 46.08.900(6) is amended to read: 16 (6) "hazardous substance" means an element or compound that, when 17 it enters into the atmosphere or into or on the surface or subsurface land or water of 18 the state, presents an imminent and substantial danger to the public health or welfare, 19 or to fish, animals, vegetation, or any part of the natural habitat in which fish, animals, 20 or wildlife may be found; or (B) a substance defined as a hazardous substance under 21 42 U.S.C. 9601 - 9657 (Comprehensive Environmental Response, Compensation, and 22 Liability Act of 1980); "hazardous substance" does not include uncontaminated crude 23 oil or uncontaminated refined oil in an amount of 10 gallons or less; 24 * Sec. 25. AS 46.09.900(4) is amended to read: 25 (4) "hazardous substance" means (A) an element or compound that, 26 when it enters into the atmosphere, or into or on the surface or subsurface land or 27 water of the state, presents an imminent and substantial danger to the public health or 28 welfare, or to fish, animals, vegetation, or any part of the natural habitat in which fish, 29 animals, or wildlife may be found; or (B) a substance defined as a hazardous substance 30 under 42 U.S.C. 9601 - 9657 (Comprehensive Environmental Response, Compensation, 31 and Liability Act of 1980); "hazardous substance" does not include uncontaminated
01 crude oil or uncontaminated refined oil; 02 * Sec. 26. AS 46.35.200(4)(A) is amended to read: 03 (A) emission control [AIR EMISSIONS] permit - AS 46.14 04 [AS 46.03.150], 18 AAC 50.120; 05 * Sec. 27. AS 46.35.200(8) is amended to read: 06 (8) "state agency" means a state department, commission, board or 07 other agency of the state; for the purposes of this chapter "state agency" also means 08 a local or regional air pollution control authority established under AS 46.14.500 [AS 09 46.03.210]. 10 * Sec. 28. AS 46.03.140, 46.03.150, 46.03.160, 46.03.170, 46.03.180, 46.03.190, 46.03.210, 11 46.03.220, 46.03.225, 46.03.230, and 46.03.245 are repealed. 12 * Sec. 29. REGULATIONS. (a) The Department of Environmental Conservation may 13 adopt regulations as authorized under AS 46.14, enacted by sec. 2 of this Act, and other 14 statutory authority, to implement changes made by this Act. Regulations adopted under this 15 section may not take effect until the enabling statute takes effect under sec. 31 or sec. 32 of 16 this Act. 17 (b) Notwithstanding the repeal of AS 46.03.140 - 46.03.245 by sec. 28 of this Act, 18 the regulations adopted under those sections that are in effect on the day immediately 19 preceding the effective date of sec. 1 of this Act remain in effect until amended or repealed 20 by regulations adopted under this Act. 21 * Sec. 30. Notwithstanding AS 46.14, enacted by sec. 2 of this Act, state air quality control 22 regulations in effect on April 1, 1992, and regulations in effect on the effective date of sec. 2 23 of this Act that set emission standards for benzene at the Port of Anchorage, may remain in 24 effect after the effective date of sec. 2 of this Act. 25 * Sec. 31. AS 46.14.010, 46.14.015, 46.14.020, 46.14.030, 46.14.200(a) and (c) - (e), 26 46.14.205(a)(1) - (3) and (5), 46.14.210, 46.14.225, 46.14.230, 46.14.232, 46.14.235, 27 46.14.250, 46.14.252, 46.14.255, 46.14.270, 46.14.280, 46.14.293, 46.14.295, 46.14.297, 28 46.14.300, 46.14.400, 46.14.410, 46.14.420, 46.14.500, 46.14.510, 46.14.520, 46.14.800 - 29 46.14.860, 46.14.900, and 46.14.990, enacted by sec. 2 of this Act, and secs. 1 and 3 - 30 of 30 this Act take effect immediately under AS 01.10.070(c). 31 * Sec. 32. AS 46.14.200(b), 46.14.205(a)(4) and (b), 46.14.220, 46.14.222, 46.14.240,
01 46.14.245, 46.14.260, 46.14.265, 46.14.267, 46.14.275, 46.14.285, and 46.14.290, enacted by 02 sec. 2 of this Act, take effect on the day after the day the federal administrator approves the 03 state permit program under 42 U.S.C. 7661a(d). The commissioner of environmental 04 conservation shall immediately notify the lieutenant governor and the revisor of statutes of the 05 date of the federal administrator's approval.