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EPA Exceptional Events Rulemaking – Arizona-only Listening Session

EPA Exceptional Events Rulemaking

Arizona-only Listening Session

Wednesday, November 20, 2013

1:30 pm – 2:30 pm Arizona Time

Call in number: 866-299-3188; Conference code: 919-541-5551

Agenda

1:30 pm: Sen. Jeff Flake opening remarks

1:32 pm: EPA opening remarks

1:35 pm: ADEQ (Eric Massey, Brad Busby, Henry Darwin)

1:40 pm: Arizona Chamber of Commerce & Industry (Glenn Hamer)

1:50 pm: Arizona Rock Products Association (Steve Trussell, Ken Evans)

1:55 pm: Arizona Cattlemen’s Association (Bas Aja)

2:00 pm: Maricopa Association of Governments (Lindy Bauer)

2:05 pm – 2:30 pm: Open floor for all participants to question/comment 

General Background

 Under the Clean Air Act (CAA), the Environmental Protection Agency (EPA) sets standards for air 

quality pollutants, including particulate matter, or dust. Having air quality data, collected from a 

network of monitors, showing that standards have been exceeded can trigger a set of burdensome 

regulations that can ultimately lead to federally enforceable pollution control requirements.

 Whether a state is currently meeting the standards or already failing to attain them, instances of 

exceeding the CAA standards can have costly regulatory consequences even if they are caused by 

so-called “exceptional events” – or events like the dust storm that roared through The Grand Canyon 

State that are simply beyond human control.

 EPA has a complex process to exempt from air quality data the spikes caused by exceptional events. 

The process by which states submit these so-called exceptional event demonstrations for review is 

complicated, unpredictable, long, and above all, expensive. 

 In 2011 and 2012, EPA approved a total of 18 exceptional event demonstrations submitted by 

Arizona. Combined, the Arizona Department of Environmental Quality, Maricopa County Air 

Quality Department, and Maricopa Association of Governments were forced to spend a total of
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EPA Exceptional Events Rulemaking – Arizona-only Listening Session

$675,000 and 790 staff-hours to prove to “EPA’s satisfaction” that a naturally occurring event 

caused each exceedance.

 Frankly, even EPA has admitted that this process is a broken one. In recent years EPA has issued a 

series of guidance documents aiming to offer more clarity on the exception events rule, but state 

officials continued to advocate that EPA undertake a formal rulemaking process to resolve 

ambiguity and uncertainty with the policy.

 In March 2012, EPA announced that they would indeed formally revise the exceptional events rule.

Today’s Arizona-only listening session – the only such session EPA has offered to a specific state -

marks one of the final opportunities for states and stakeholders to influence the content of EPA’s 

forthcoming draft rule on exceptional events.

 EPA has stated that it intends to issue a draft exceptional events rule in late 2013 or early 2014,

which will be followed by a public comment period. A final rule is expected to be published by late 

2014 or early 2015.

 If Arizona is to see a fair and reasonable exceptional events rule, it is important that stakeholders are 

engaged at every step during the rulemaking process. 

EPA Disclaimer

EPA has asked that participants be advised that the agency is still in the early stages of crafting a 

proposed revised rule for exceptional events. That is why they consider this listening session to be so 

valuable – it gives EPA an opportunity to hear people’s thoughts on what issues the agency should be 

considering and how the agency could draft a revised rule that addresses those issues. EPA’s Air Office 

would like reiterate that they will answer as many questions as they can at this early stage, but there are 

some they cannot address yet because they are central to the rulemaking. On those, EPA would like to 

make sure participants know this is an opportunity for them to share their thoughts around those themes 

with us. Beyond noting that improvements are needed in a certain aspect of the exceptional events rule 

or its implementation, participants’ ideas on specifically what should be changed in the rule text or in 

EPA’s approach to implementation will help EPA shape the proposed rule.

Pre-Call Question Submissions

Arizona Department of Environmental Quality

1. Can EPA help further streamline the documentation required for concurrence of Exceptional Events?

 The level of effort needed to keep up with exceptional events in Arizona is unsustainable given 

the time and cost both in terms of the State developing the demonstrations and in terms of EPA 

review and concurrence - additional streamlining is necessary.

o Can thresholds be developed for “very obvious” exceptional events that EPA and ADEQ 

are confident will receive a concurrence based off of basic event PM and met data?
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EPA Exceptional Events Rulemaking – Arizona-only Listening Session

o For very similar events occurring in the same areas during the same year, can subsequent 

packages reference portions of previous documentation rather than rehashing the same 

language?

2. What steps is EPA taking to ensure that it can handle the additional workload as more and more 

high-priority exceptional events demonstrations are submitted by multiple states?

 Arizona has 20 high priority exceptional events demonstrations being planned for and developed 

for submittal early next year

 Additional exceptional events have already occurred since the planning of the first 20, with more 

likely to occur before the end of the year. These events will be next on ADEQ’s priority for 

preparing documentation and submittal during the middle of next year

3. How should states handle PM2.5 exceedances that are related to windblown dust events and are 

concurrent with PM10 exceedances? If the PM2.5 exceedances occurred on dates that had PM10 

exceptional events documentation already submitted and concurred with, what needs to be submitted 

to EPA to also exclude the PM2.5 values related to those already concurred with events?

4. How can the idea of “recurrence” of exceptional events be structured in such a way as to not 

handcuff Arizona?

 The summer monsoon season drives frequent strong outflow winds generating and transporting 

dust throughout Arizona leading to a high volume of exceedances

 Arizona is a unique state located in the arid southwest that sees extreme temperatures, 

experiences frequent drought, and contains many natural sources of PM10 including large areas 

of undisturbed open desert

 Because of its location, climate and weather, Arizona will continue to experience exceptional 

events

 There are additional natural and anthropogenic sources in neighboring states/countries that are 

often significant contributors to Arizona dust events 

Arizona Chamber of Commerce & Industry

The State and local agencies have repeatedly stressed that the preparation of the EE demonstration 

packages for submittal to the EPA for consideration require extensive resources and time and are 

incredibly costly. Thus, leading to the following questions:

1. The EPA has conveyed that the submitting States, it is EER demonstration submittal, should 

"sufficiently identify all natural and anthropogenic contributing sources of emissions to show the 

causal connection between an event and the affected air concentration values," for intrastate, 

interstate or international transport events. How does the EPA justify this unnecessary, timely and 

costly requirement for emissions that are generated from anywhere outside the non-attainment area?
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EPA Exceptional Events Rulemaking – Arizona-only Listening Session

2. When a natural event occurs, much like the haboob that rolled through Arizona on/around July 3-5, 

2011, why does the EPA require the State to have the burden of proving that such an event qualifies 

as an EE? 

3. The EPA has stated that it relies on the "weight of evidence," as opposed to the "preponderance of 

evidence" approach. However, the State and local agencies will spend hundreds or hours and 

thousands of dollars preparing an EE demonstration package that is subject to the EPA's 

interpretation. Why does the EPA not establish a standard of evidence, a "preponderance-ofevidence" approach?

4. What measures will the EPA consider that provides the States a fair a reasonable path for dispute 

resolution in regards to the EPA's decisions on the EE demonstration packages?

Arizona Rock Products Association

1. What will EPA do to reduce approval timeframes to assist in clean data findings? Does EPA intend 

to give deference to the states regarding exceptional events findings? 

2. How does EPA intend to further streamline the exceptional events submittal process to make better 

use of limited state resources?

3. Is EPA considering inclusion of an opportunity for proper judicial review or an appeals process for 

contested exceptional events submittals? As stated before, there is no new dispute resolution process 

or appeals proposed in the guidance or as a possible rule revision. Given the critical nature of 

exceptional events decisions, they must be subject to third party review.

4. Local high wind threshold capable of overwhelming local controls has been proven to be well below 

the default in Arizona. The Default Standard was 25mph which is now considered too high by EPA, 

what is being considered given the unique conditions in the southwest? 

5. Does EPA maintain they can still require controls beyond RACM/BACM? If so, this is 

unacceptable. Defined, objective criteria must be established and followed. In the case of 

RACM/BACM the CAA has defined that and it should not be left to the changing discretion of the 

EPA. What would be the justification for this?

6. In EPA's response to initial comment on the Exceptional Events Guidance staff stated, "The EPA 

still maintains that the reasonableness of controls can depend on the number of days per year on 

which they will have an air quality benefit." This appears to be a moving target and entirely 

subjective and cannot work as a regulatory criterion.

7. Intrastate transport requires an evaluation to identify whether neighboring county emissions are not 

reasonably controllable or preventable, what does EPA intend to do to address this issue?
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EPA Exceptional Events Rulemaking – Arizona-only Listening Session

8. Existing Federal Language in SafeTeaLu allows no exemption for drought and Unseasonably Hot 

and Dry Weather. These are non-anthropogenic contributions that are clearly caused by unique 

meteorological conditions. What will be done to address this as it is the largest contributing factor to 

exceptional events in our region?

Additional Comment:

Not only should authority for designating events as “exceptional” be given to ADEQ, but ADEQ should 

have on its review committee (either as an employee or else a contractor—ASU Office of Climatology, 

private consultant, etc.) a credible geographer / climatologist with long-time history in Arizona whose 

expertise is definitive in the eyes of both ADEQ and EPA. I realize that EPA still has review privileges, 

but there needs to be a shorter approval process based on the input of an expert in the field. Obviously, 

that individual would undoubtedly need to have the approval of both ADEQ and EPA, but it could 

shorten the process and add expert input to a final decision that San Francisco is unable to provide at the 

current time. Frankly, meteorology is predictive, whereas climatology is looking at what has already 

happened in light of historical statistics—which would be most appropriate in this circumstance. The 

geographer aspect would include consideration of landforms, soil types, the status of soil crusting, etc., 

and how they affect soil erosion due to high wind events.

Arizona Cattlemen’s Association

1. Will the EPA provide strict timelines for itself to mirror the timelines imposed on the states?

2. Will the states be granted flexibility to apply a “multiple factor test” (drought, number of days 

without precipitation) – not just a “high wind threshold”—to determine defining an exceptional 

event?

3. Will the rule apply a “wind generated dust” terminology – not just a “high wind” speed 

determination?

4. Will the EPA grant greater deference to areas where Best Available Control Methods (BACM) are 

applied and having high wind emissions – will these emissions be categorized as “not reasonably 

controllable or preventable?”

Maricopa Association of Governments

1. More deference needs to be given to States. It is apparent that EPA needs to delegate initial 

exceptional event determinations to the states and EPA is not restrained by the Clean Air Act from 

doing so. The Clean Air Act only requires EPA to promulgate regulations regarding the “review and 

handling of air quality data...[and provides that there be] criteria and procedures for the Governor of 

a State to petition the Administrator to exclude air quality monitoring data...” While determinations 

by the Administrator are required with regard to air quality exceedances and violations, there is 

nothing to prevent EPA from delegating additional responsibility to the states and showing deference 

to state judgments.
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EPA Exceptional Events Rulemaking – Arizona-only Listening Session

2. The rule should recognize and demonstrate greater deference to the expertise of State and local 

agencies in determining whether a high wind exceptional event occurred in their area. The 

uniqueness of Arizona’s meteorology and geography is best understood by State and local agencies 

who are responsible for the day-to-day implementation of control measures. Deference to the 

technical information, evaluations, and demonstrations provided by State and local agencies would 

promote greater efficiency at the federal and local level.

3. The process and documentation need to be streamlined. With all due respect to the work and effort

behind the May 2013 guidance, this guidance does not provide much progress in streamlining the 

exceptional event approval process. In fact, in some areas additional limitations are added. For 

example, States can only rely on State Implementation Plan controls that have been approved by 

EPA for three years, or far less time than it can rely on the same controls for National Ambient Air 

Quality Standards compliance. Other parts of the guidance imply that mitigation plans should be 

submitted with each demonstration package. EPA should rethink such provisions prior to proposing 

revised regulations.
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EPA Exceptional Events Rulemaking – Arizona-only Listening Session

4. The rule should allow for the use of forms, check off lists, and other straightforward mechanisms as 

demonstrations for easily recognizable high wind exceptional events. MAG developed an example 

form that creates a simplified description of the exceptional event, an explanation of how each 

element of the exceptional event rule is met, and provides for the attachment of additional 

information. The form allows the air agency to readily provide to EPA the level of information 

needed to support the demonstration on a case-by-case basis. EPA could then quickly evaluate the 

form, and the additional information attached, and either concur or request more information when 

warranted. When an air agency and EPA agree that a high wind exceptional event has occurred, the 

form greatly reduces the resources expended by both parties. The form was submitted to EPA on 

August 31, 2012.

5. The rule should not require a unique, case-by-case evaluation of whether each high wind exceptional 

event was not reasonably controllable or preventable. Measures in the approved State 

Implementation Plan should be sufficient as reasonable controls. The exceptional events rule does 

not and should not provide EPA additional authority to review controls outside of the State 

Implementation Plan process. Unless evidence exists of non-enforcement of controls, there is no 

need to re-evaluate approved controls under the exceptional events rule.

6. The rule should not view the existence of recurring high wind event exceedances as justification to 

require ever-increasing controls on sources. Recurrence should have no bearing on the 

reasonableness of controls. The exceptional events rule should not impose greater burdens on areas 

that experience more frequent high wind events, or impose any additional requirements beyond those 

required in State Implementation Plans.

7. The rule should have no time frame for when exceptional events can be submitted before a final 

EPA action (currently 12 months in existing rule). In areas such as Arizona that are likely to have 

multiple high wind exceptional events each year, the exceptional events rule should allow for the 

continual submission of exceptional event demonstrations as they occur.

8. The rule should accelerate the exceptional event review process. The current time line allowing EPA 

18 months before taking final action on a submitted demonstration is excessive and unnecessary. 

The time line for EPA action needs to be substantially shortened so that areas are not held in 

perpetual nonattainment.

9. The rule needs to recognize and accommodate the differences in regional climates and conditions. 

Finally, the current guidance does not adequately recognize differences in regional climates and 

conditions. Arizona is not in a position to control the force of the wind on our natural landscape or 

the amount of rain we receive each year. We should not have an exceptional events process, which 

requires us to prove the obvious again and again. While EPA has taken some steps, the required data 

and substantiation are still too onerous and must be further streamlined.
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EPA Exceptional Events Rulemaking – Arizona-only Listening Session

10. In the Arizona desert, high winds from weather fronts and localized storm activity move over a 

smooth terrain where they pick up dry, fine silty soils and generate blowing dust on regional and 

local scales. Local air quality monitors affected by windblown dust have recorded exceedances of 

the PM-10 standard. Arizona cannot attain the PM-10 standard unless exceedances associated with 

high winds are excluded from consideration. High winds in the desert cannot be controlled by a PM10 plan.

11. The rule should recognize that high wind exceedances can and do occur at a single monitor while 

other monitors in the same area do not record an exceedance. The particular location of a single 

monitor in relation to open and desert areas and the role of transport of windblown dust are 

important reasons why only particular monitors in an area may exceed during a high wind event. 

Single monitor exceedances should not be presumed to be the result of uncontrolled anthropogenic 

activity.

12. The rule should not specify a minimum wind speed threshold as a test for the reasonableness of 

controls. The rule or associated guidance should not presume that exceedances recorded when wind 

speeds are below an EPA-assumed minimum wind speed threshold are only caused by uncontrolled 

anthropogenic activity. Wind speed is only one factor in explaining a high wind exceptional event, 

with conditions on the ground (lack of precipitation, soil composition) often playing a larger role in 

the cause of the event.
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EPA Exceptional Events Rulemaking – Arizona-only Listening Session

Confirmed Participants (as of 11/15/2013)

Bert Acken Ryley Carlock & Applewhite

Bas Aja Arizona Cattlemen's Association

Jason Barraza Veridus

Lindy Bauer Maricopa Association of Governments

Steve Bloch Capitol Strategies

Brad Busby Arizona Department of Environment Quality

Miranda Cain Greater Phoenix Chamber of Commerce

Anne Carlton APS

Clint Chandler Office of Senator Jeff Flake

Janice Chartier BHP Billiton 

Shawn Cote Southern Arizona Home Builders Association

Henry Darwin Arizona Department of Environment Quality

Jerri Dragt Sundt

Ken Evans Civil & Environmental Consultants, Inc.

Phillip Fargotstein Fennemore Craig, P.C.

Marchelle Franklin City of Phoenix Aviation Department

Sen. Jeff Flake U.S. Senate

Karen Gaylord Jennings, Haug & Cunningham, LLP

Rebecca Godley City of Phoenix - Environment

Paige Gonzales Office of Maricopa County Supervisor Steve Chucri

Glenn Hamer Arizona Chamber of Commerce & Industry

Jeremy Harrell Congressman Paul Gosar

Helen Heiden Arizona Chamber of Commerce & Industry

Chad Heinrich Greater Phoenix Chamber of Commerce

Rebecca Hudson SW Gas

Dan Johnson Western States Air Resources Council

Julie Katsel Office of Senator Jeff Flake

Ana Kennedy Arizona Farm Bureau Federation

Janelle Kennedy CalPortland

Cheryl Lomnard Nature Conservancy

Eric Massey Arizona Department of Environment Quality

Amanda McGennis Arizona Chapter, Associated General Contractors

Phil McNeely City of Phoenix, Office of Environmental Programs

Robert Medler Tucson Metro Chamber

Steve Miller Pinal County Board of Supervisors

Lliam Morrison Congressman Matt Salmon

Amanda Nash Maricopa County

Karis Nelson SRP

Kelly Norton Arizona Mining Association

Krishna Parameswaran ASARCO

Patrick Paul Snell & Wilmer LLP
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EPA Exceptional Events Rulemaking – Arizona-only Listening Session

Brad Poiriez Imperial County Air Pollution Control District

Matt Poppen MAG

Nathan Pryor MAG

Steve Rakowski Haley & Aldrich

Amanda Reeve Polsinelli PC

Judy Ross City of Phoenix

Jason Samuels Office of Senator Jeff Flake

Jarrell Southall Brown & Caldwell

Michael Sundblom Pinal County Air Quality District

Bill Underwood Gallagher & Kennedy

Rusty VanLeuven AZ Dept. of Agriculture

Cheyenne Walsh Squire Sanders (US) LLP

Todd Weaver Freeport-McMoRan Copper & Gold

Lyn White Freeport-McMoRan Copper & Gold

Bill Wiley Maricopa County Air Quality Department

Michael Wong Congresswoman Kyrsten Sinema