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Environmental Protection Agency (EPA): Proposed Rule

Treatment of Data Influenced by Ex ceptional Events – Rule Revisions

RIN 2060-AS02

General Comments

1) Reviewer recommends providing draft rule text for areas that EPA is taking comment on whether language should be included or within guidance to provide context.

Response: We have reviewed all sections in the preamble where we specifically solicit comment and believe that the current proposed ru le text reflects thos e areas for which we intend to codify regulatory text. We further believe that the preamble provides sufficient

detail and notice to commenters to allow us to generate additional needed rule text for the final regulatory action.

2) Reviewer recommends explaining in further detail about when a SIP call applies and whether it needs to be to the specific NAAQS that is being considered or in relation to

any reason.

Response: We have edited th e language in the section, “ The Role of the EPA-approved SIP in Nonattainment and Maintenance Areas,” at about page 146, to more clearly explain that only a SIP call involving the event-relevant NAAQS pollutant would have the effect of preventing an approved SIP from being given deference for purposes of the not reasonably cont rollable criterion.

3) Reviewer recommends explaining why five (5 ) years is proposed as the timeline for

reasonable controls instead of other timelines or thresholds. Reviewer also recommends requesting comment on other determinations other than just 3 and 10 years for the accepted timeline.

Response: We have added language to sec tion V.E.2 of the preamble to support our proposal to consider enforceable control meas ures implemented in accordance with a SIP approved by the EPA within 5 years of the date of a demonstration submittal to be reasonable controls with respect to all an thropogenic sources that have or may have

contributed to event-related emissions.

4) Reviewer recommends providing a discussion of malfunctions, whether EPA is taking stand on malfunctions being included as ex ceptional events, the history related to malfunctions and exceptional events and EP A should take comment on whether they should be included and if they were, how that would be done.

Response: A malfunction at an indu strial facility could be cons idered to be an exceptional

event if it has not resulted in source noncompliance, which is statutorily excluded from consideration as an exceptional event ( see CAA 319(b)(1)(b)(iii)), and if it otherwise meets the requirements of the Exceptional Events Rule. We have added footnote 57

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2 clarifying this relationship. We will consider each exceptional events demonstration on a case-by-case basis and on its own merits. We do not wish to use this NPRM to expand further on the relationship between malf unctions and exceptional events.

5) It is unclear for internati onal transport, when section 179B applies and when 319(b) applies. If an exceptional even t occurs outside of the US, is the exceptional event allowed to be exempted from a nonattainment determ ination. Reviewer recommends clarifying.

Response: The EPA does not interpret CAA section 179B as the exclusive means to address emissions originating from outside of the United States. If international emissions originate from an event that meets the definition and proposed requirements of the Exceptional Events Rule (that the event affected air quality in such a way that there exists a clear causal relationship between the speci fic event and the monitored exceedance or violation, the event was not r easonably controllab le or preventable, and the event was caused by human activity that is unlikely to recur at a particul ar location or was a natural event), then it may qualify for treatment as an exceptional event under section 319(b).

If an international event qualifies for treatm ent as an exceptional event under section 319(b), then the air quality data may be excl uded from NAAQS designa tion decisions. If an area affected by internationa l transport is designated nonattainment, then the affected state may submit an attainment plan that doe s not demonstrate attainment, provided that the plan demonstrates that the area would be in attainment by the attainment date “but for” emissions originating from outside of th e United States. In this case, the EPA has the authority to approve the attain ment plan under section 179B.

A large portion of internationa l emissions originate from r outine anthropogenic sources. When asked whether these emissions could quali fy as an exceptional event, the EPA staff have responded that such routine internat ional emissions would not quality as an exceptional event, because no “event” has occu rred. Industry has suggested that the timelimited meteorological process that brings such emissions to a particular U.S. monitoring site on a particular day should be considered an “event” and the air quality impact of the emissions eligible for consideration under the Exceptional Events Rule. The EPA does

not wish to use this NPRM to take or propose a position on this recommendation.

6) Reviewer recommends, to the extent possibl e, EPA should err on the side of including provisions within regulatory la nguage and not including within just a regulatory guide. If there are provisions that EP A believes would always meet, EPA should state them within the regulatory text and then provide for additional discre tion on a case-by-case basis.

Response: We believe that the current proposed rule text reflects those areas for which we intend to codify regulatory text. We further believe that the preamble provides

sufficient detail and notice to commenters to al low us to generate a dditional needed rule text for the final regulatory action.

7) Reviewer recommends providing additional expl anation as to why PSD permit issues are not being resolved within this rulemaking and providing firmer dates for when and

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3 potentially how this issue will be resolved. EPA should also discuss how this issue is being handled currently and whether there is an ything within this rule that could be used as guidance for PSD permit determinations.

Response: We have modified th e language in section V.C of the preamble (What types of

ambient concentration data and data uses may be affected by the Exceptional Events Rule?) to clarify our proposed approach – i.e ., that data exclusion for purposes of establishing background concentrations for PSD permitting issues (and several other identified types of regulatory actions) could, but is not required to, follow the provisions in the Exceptional Events Rule. For the reasons now more clearly explained in the preamble, we do not believe that identifyi ng appropriate background concentrations for PSD (or other purposes) constitutes a determina tion “by the Administrator with respect to

exceedances or violations of the national ambi ent air quality standa rds” and, therefore, such applications could follow an alternate pa th for data exclusion that we will establish through the guidance document id entified in the preamble. The preamble explains that we intend for this alternate path to allow excl usion for PSD purposes in any situation in

which exclusion would be allowed under the criteria of the Exceptional Events Rule and also in other situations, which we will articulate in the guidance.

8) Reviewer recommends allowing exceptional events to be used for future predictions of attainment/nonattainment and not just based on historical information. It is unclear why this is being excluded from this rulemaking a nd whether this will be addressed in a future rulemaking.

Response: We have modified th e language in section V.C of the preamble (What types of

ambient concentration data and data uses may be affected by the Exceptional Events Rule?) to clarify our proposed approach re garding exceedances and violations determined by future predictions and historical information.

9) Reviewer recommends discussing how many items are marked as exceptional events in either the past year or stated time-period, how many affect or have a high probability to affect a regulatory decision, and the average length of time of review it took EPA to make these decisions. By providing this information on the status quo, it provides a better picture for the public in relation to the efficiency gains and the problem that this proposed rule would be resolving.

Response: While we agree that providing details regarding the number of submitted exceptional events claims and the timefram e for demonstration review would help readers better understand the efficiency ga ins realized by this rulemaking, the EPA does not have not have a national tracking syst em for the submission, review, and expended resources associated with the exceptiona l events process because states submit exceptional events demonstration packages directly to their reviewing EPA regional office rather than through a centralized system or to a centralized organization. In addition, each “demonstration” can involve a single hour of monitoring data or hundreds of hours of data, so estab lishing and implementing a consistent accounting approach

would be difficult.

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4 10) Reviewer recommends providing additional disc ussion in relation to the High Wind Dust

Events in relation to soil t ypes and the propensity to erode as there can be significant differences even on a single land par cel with regard to erodibility.

Response: We have not incor porated additional language in the preamble to address soil type as it influences the propens ity for erosion as we believe th is level of detail is more appropriately discussed in guidance. We do, however, note in two places in the preamble that the wind speed capable of generating em issions varies by location depending on the characteristics of the local landscape, including soil type, soil characteristics and vegetation ( see language on pp. 136, 138). We also cite Appendix A1 of the EPA’s 2013 Interim Guidance on the Preparation of Demonstrations in Support of Requests to Exclude Ambient Air Quality Data Affected by High Winds Under the Exceptional Events Rule, which includes more detail on soil type and erosion.

11) Reviewer recommends providing a table or text clarifying how many of each Tier 1, Tier 2, and Tier 3 demonstrations EPA recei ved between 2010 and 2015 and how many were approved. This would be beneficial as EPA states that they have approved two Tier 2 approvals between 2010 and 2011.

Response: The EPA believes that this comment relates to the Draft Guidance on the Preparation of Exceptional Events Demons trations for Wildfir e Events that May Influence Ozone Concentrations as the NPRM does not mention the tiering approach for

wildfire/ozone events. As indicated in th e response to comment 10 above, the EPA is unable to provide additional detail in response to this comment as we do not have not have a national tracking system for the submission, review, and expended resources associated with the exceptional events proce ss because states submit exceptional events demonstration packages directly to their reviewing EPA regional office rather than through a centralized system or to a centra lized organization. We do, however, note that we concurred with two fire/ozone exceptio nal events demonstra tions in the 2010-2011 timeframe both of which would have been eligible for the newly proposed Tier 2 approach.

Federal Land Managers 1) One reviewer recommends removing the provis ion for Federal Land Managers (FLMs) to submit Exceptional Events (EE) demonstrations be removed from the rule. Specifically, the reviewer is concerned that this appro ach may impede a closer working relationship between FLMs and states. Also, while FLMs have wildland fire data, they do not necessarily have access to all the needed ai r quality data, nor the technical expertise necessary to demonstrate clear causal relations hip between the fire emissions and the air quality measured at an affected monitor. FLMs do not have a distributed workforce capable of working with each of the states and EPA regions where EE demonstrations may likely be required.

A second reviewer recommends that federal la nd managers develop EER demonstrations

if the state chooses or is not able to develop one.

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5 Response: We are retaining the preamble and rule language proposing that FLMs can submit exceptional events demonstrations di rectly to EPA as some in the federal community desire this flexibility and th e CAA contemplates that decisions on the

exclusion of data can be made on the basis of information provided by federal agencies. Thus, we believe we should retain the proposed language and solicit broader public feedback. If the federal land managers collec tively agree to a different approach for the NPRM, we would be happy to incorporate consensus language. Ultimately, a federal agency, like an affected stat e, could choose whether or not to submit a demonstration.

2) Reviewer recommends as one alternative, that EPA describe a process where FLMs would petition EPA to address a lack of acti on by a state to properly process and submit an EE application when wildland fire emissi ons have sufficient attribution as EPA does have the authority to take federal actions th at affect state implementation plans. The FLMs would submit the appropriate supporting information to EPA as it would normally

to the state.

a. Page 32. Reviewer recommends revising th e first three (3) li nes to state the following:

i. . . . .events could affect these same m onitors, the EPA proposes to allow FLMs and other federal agencies to petition EPA to prepare and process exceptional event

demonstrations and date exclusion requests.

Response: For the reasons stated above, we have not incorpor ated the suggested

revisions.

b. Page 32. Reviewer recommends de leting the following sentence:

i. FLMs and federal agencies have ready acce ss to fire-related information and the technical resources needed to prepare anal yses to include in exceptional events

demonstrations.

Response: We have de leted this sentence.

c. Page 32. Reviewer recommends adding the following text at the end of the first paragraph:

i. In addition, the state air agency can work di rectly with the agency that operates the affected monitor to reques t the data be flagged.

Response: We have added this concept to the identified paragraph on page 32.

3) While the reviewer recommends the pr evious comments for FLMs, if those recommendations are not accepted, reviewer recommends the proposed preamble and rule language be modified to request co mments on a generic concept of alternative methods of initiating and submitting EE demons trations, without a specific suggestion

that FLMs take on or lead such an effort.

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6 Response: For the reasons stated above, we have not incorpor ated the suggested revisions. In addition, we believe that it is not appropriate for certain entities that are under the jurisdiction of the state, such as local regulatory agencies, to submit exceptional events demonstrations. Soliciting comment on a generic approach to submitting

demonstrations could be inte rpreted as agreeing to accept demonstrations from such

entities.

Specific Comments

1) Page 22-23. Reviewer recommends clarifying th e sentence stated below as the language seems to imply that EPA is “restating” thes e interpretative positions in the preamble, rather than the Rule, but reviewer believes that the EPA’s restat ement is found in the proposed rule and thus should be clarified to state that.

a. EPA is proposing to restate some of the in terpretative positions originally stated

in this section of the preamble to the 2007 Exceptional Events Rule for the purpose of providing clarity and re ducing regulatory uncertainty.

Response: We have modified the referenced language on pages 22-23 to read, “For clarity and regulatory cert ainty, the EPA is proposing in rule text form some of the interpretative positions originally stated in the High Wind Events section of the preamble to the 2007 Exceptional Events Rule.”

2) Page 28. Reviewer recommends revising the following sentence to state:

a. Section 301(d) of the CAA authorizes the EPA to recognize trial authority, to
allow ing eligible, federally-recognized tribal governments to implement provisions of the CAA.

Response: We have accepted and inco rporated the suggested changes.

3) Page 39. The preamble states “Air agencies have expressed concern that the EPA might interpret the “but for” criteri on as implying the need for a st rict quantitative analysis to show a single value, or at least an explicitly bounded plausible range, of the estimated air quality impact from the event.” Reviewer recommends that if these concerns are misplaced, EPA should say so. Additionally, EPA has proposed to delete the regulatory requirement at 40 CFR 50.14(c)(3)(iv)(D) that “t here would have been no exceedance or violation but for the event” (i.e ., the “but for” criterion). If EPA does not intend for the deletion to translate into any qualitative or quantification diffe rence, it may want to make this point more expressly here.

Response: We have modified the referenced language to read: “Air agencies have expressed concern that the EPA has, in many cases, historically interpreted the “but for” criteri on as implying the need for a strict quantitative analysis to show a single va lue, or at least an explicitly bounded plausible range, of the estimated air quality impact from the event.”

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7 In addition, in the concluding paragraph in this section, we have replaced the language as follows to clarify our intent with resp ect to removing the “but for” criterion,

“ Depending on the event characteristics and the case-by-case nature of the evaluation, an air agency may or may not need to provide quantitative analyses or estimates to support the weight of evid ence approach. The EPA will discuss with an air agency the appropriate approach for a given event demonstration during conversations preceding the submittal of a demonstration .”

4) Page 41. Reviewer recommends clarifying wh at the term “weight of the evidence” means for the end user. Specifically, is th ere a definition or guidance that can be provided on page 41?

Response: We have added foot note 17 to clarify the term “weight of evidence:” “The term “weight of evidence” means that the EP A will consider all relevant evidence and qualitatively “weigh” this evidence based on its relevance to the Exceptional Events Rule criterion being addressed, the degree of certainty, its persua siveness, and other considerations appropriate to the individual pollutant and the nature and type of event.”

5) Page 56. The preamble states “When addres sing the not reasonably controllable or preventable criterion for this same event type consisting of a mix of natural emissions and

human-affected emission sources (e.g., a high wind event affec ting both open desert areas and urbanized lands), air agencies must assess reasonable cont rols for both the contributing natural and anthropogenic sources.” This suggests that it is necessary to

“consider” controls for events from natural s ources, but not necessary to implement such

controls. It is unclear whether failure to “c onsider” such controls is a basis to disqualify the event from “exceptionalism.” Review er recommends clar ifying that point.

Response: We have modified the language as follows: “When addressing the not reasonably controllable or preventable criteri on for this same event type consisting of a

mix of natural emissions and hum an-affected emission sources ( e.g. , a high wind event affecting both open desert areas and urbanized lands), air agencies must assess reasonable controls for both the contributing natural and anthropogenic sources. While air agencies

must “assess” reasonable controls for most types of contributing na tural sources because this statutory factor applies to all events , they do not necessarily need to implement

controls for these same sources. Additiona lly, because the rule revisions propose a categorical presumption of not reasonably c ontrollable for wildfires and large-scale, highenergy and/or sudden high wind dust events, “assessing” these events would involve referencing the appropria te regulatory citation. As we explain in more detail in section V.E.2, for natural sources, we do not think th at air agencies need to have implemented any controls for windblown dust from never-d isturbed, large-scale natural landscapes. Therefore, lack of controls on natural source s that contribute to event-related emissions would not disqualify the event from bei ng considered as an exceptional event. When assessing the contribution fr om anthropogenic sources...”

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8 6) Page 86 – 87, Table 2. Reviewer recommends providing an additional column that distinguishes between required and optional text instead of putting it in a note below the

historical concentration evidence.

Response: We have incorporated your suggestion to add a 3 rd column in Table 2 in the preamble and in this same table, which a ppears as Table 3, in the regulatory language.

7) Page 88, footnote 53. Reviewer recommends changing “specifically identified” to “currently identified.”

Response: We have incorporated this co mment in the footnote (now footnote 58).

8) Page 99. Reviewer recommends clarifying the sentence that states “Both wildfires and prescribed fires are also s ubject to the ‘not reasonably controlled or preventable’ criterion, as are all exceptiona l events” as it is confusing. It appears logical that prescribed fires are reasonably controlled or preventable, because they only occur at man’s discretion. The sentence also implies that all prescribed fires are per se, exceptional events. If that is not EPA’s in tent, we recommend the sentence be reworded.

Response: We have reworded the sentence as follows, “ Demonstrations for Both

wildfires and those prescribed fires claimed to be exceptional events must also address are also subject to the ‘not reasonably cont rolled or preventable’ criterion, as are all exceptional events.”

9) Page 192. Reviewer recomm ends revising the following sentence to state:

a. To protect all people and communities, notably minority and low-income populations, air agencies should ensure that notifications and education programs are communicated using the language ( e.g ., English and Spanish) and media ( e.g ., radio and postings in local community centers) best suited to the target audience(s).

Response: We have incorporated commenter’s suggested language.

10) Page 202, the rule states that “The Admini strator shall exclude data from use in

determinations of exceedances and violati ons, where a State demonstrates to the

Administrator’s satisfaction that emissions fr om prescribed fires caused a specific air pollution concentration . . .” The preamble s uggested that the aut hority to make this demonstration would, under this proposal, be expanded to federal land managers as well as States. This section only applies to Stat es, however. If EPA intends to add federal land managers, perhaps the phrase “or, wh ere appropriate, a Federal land manager” should be added through out this subsection.

Response: We have not incorporated the s uggested language as we believe that the proposed regulatory language at 50.14(a)(1 )(ii)(B) on page 205, which reads, “When initiating such a request, all provisions in this section that are expressed as requirements applying to a State shall, except as noted, be requirements applying to the federal land

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9 manager or other federal agency” addresses the expanded authorities from States to federal land managers or other federal agencies.

11) Page 202, the rule states “With respect to the requirement that a prescribed fire be not reasonably preventable, provide d there is no compelling eviden ce to the contrary in the record.” Does EPA wish to clarify that it is ultimately EPA’s own call whether submitted evidence is or is not “compelli ng”? Or, does the State have the duty to evaluate whether evidence is or is not “compelli ng”? If so, should the State ce rtify that it has done so? This same comment applies to the same la nguage that appears on Page 203 and Page 204

of the rule.

Response: In each instance referencing “compelling” evidence in the record, we have inserted the language unless/pr ovided “the Administrator determines that there is no compelling evidence in the record...”

12) Page 205. The rule states “The Administ rator will accept a high wind threshold of a sustained wind of 25 mph for areas in the States of Arizona, California, Colorado, Kansas, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, Utah, and Wyoming provided this valu e is not contradicted by evidence in the

record at the time the State submits a demonstr ation.” Does EPA want to add a standard here explaining how much “evidence” is sufficient to cause EPA to reject this threshold?

Response: We have not changed the language in the rule text, but we have added language in the part of the preamble that ad dresses this potential scenario. The edited language on page 143 now reads, “If the EPA receives specific information based on relevant studi es that suggest a different high wind threshold for an identified area, the EPA will notify the affected air agency so that the agency may consider basing its demonstration on

that threshold value. The EPA would consider such information as part of the weight of evidence for a submitted demonstration. In lieu of using the default 25 mph high wind threshold, air agencies woul d have the option to identify an areaspecific high wind threshol d that is more represen tative of local/regional

conditions.”

13) Page 60 – Reviewer recommends clarifying how multiple day prescribed fires would impact wildfires and prescribed fires in relation to the following issue. If there have been two prior events of a similar type within a 3-year period in an AQCR, that would generally indicate the third event, for whic h the demonstration is being prepared (or would be prepared), does not satisfy the “hum an activity that is unlikely to recur at a particular location” criterion and, thus, would not qualify as an exceptional event.

Response: We have added language to footnote 39 to indicate that a single “event” could influence concentrations on multiple days.

14) Footnote 39 typo – Reviewer recommends revisi ng “best smoke management practices”

to “ basic smoke management practices.”

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10 Response: We have incorpor ated commenter’s suggested language (now footnote 42).

15) Page 69 – Reviewer recommends that the following does not apply to wildland fire.

a. We also propose, as guidance, to consider the direct effects of remote, large-scale, high-energy and/or sudden natural events to generally be not reasonable to prevent or control.

Response: We have added language in the pr eamble (above footnote 48) to clarify that this “as guidance” proposal in the preamble a pplies only to events other than high wind

events and wildfires on wildla nd, because the proposed rule te xt incorporates the concept that such high wind and wildfire events are by their nature not reas onably controllable or preventable. We do not believe that we need additional guidance given the proposed rule text addressing this concept. The proposed ru le text for high wind ev ents specifically uses the “remote, large-scale” phrasing. In seve ral instances, the pream ble text on wildfires cites remoteness as a reason why wildfires are not reasonable controllable; the rule text simply says that we will consider wildfi res to be not reasonab ly controllable or preventable unless there is compelling evidence otherwise.

16) Page 70 – Reviewer recommends clarifying whether BSMP applies to burning post-storm disposal of debris. If so, re viewer recommends mentioning.

Response: We have added foot note 49 to address the potential consideration of BSMP for

the incineration of debris associated with th e recovery period follo wing a natural disaster.

17) Page 73 and 74 – Reviewer recommends disc ussing the need to modify SIP’s to incorporate the new wildfire definition be mentioned.

Response: We have not incor porated additional language in the proposal to indicate the potential need for a SIP revision to address the new wildfire defin ition as this proposed action could result in multiple changes to individual SIPs. We do not wish to use this NPRM to discuss certain potential revisions while excluding others.

18) Page 82 and/or 84, Table 1 and/or 2 – Reviewer recommends adding non-FRM emergency monitors to the list as the use of non-FRM emergency monitors could help show smoke movement and impacts as it hits AQS monitors.

Response: We have added language in Tabl e 1 (Example Clear Causal Relationship Evidence) to indicate that for purposes of showing the o ccurrence and geographic extent of an event, air agencies can use as s upporting evidence “Special weather statements, advisories, news reports, nearby vi sibility readings, measurements from regulatory and non-regulatory ( e.g ., special purpose, emergency) monitoring stati ons throughout the affected area, satellite imagery.”

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11 19) Page 90 – Reviewer recomme nds revising the language to ask for dialogue between Federal agencies and states as this is done elsewhere in the pr eamble rather than straight

to EPA as discussed.

Response: We have revised the language as follows: “Because there may be special considerations regarding air agencies’ aut hority to regulate activity on federally-owned and managed lands ( e.g ., national parks within the state) , states and tribes should consult

with the appropriate FLM or other federal agency and their EPA regional office early in the development of an exceptional events demonstration package if they believe that sources on federally-owned and managed land contributed event-related emissions to a degree that raises issues of reasonable control.”

20) Page 94: Reviewer recommends revisi ng the following sentence to state:

a. The EPA interprets this interstate transport provision to address anthropogenic sources of emissions from other states; we believe that is not intended to address

natural sources of emissions or prescribed fires.

Response: We have not incorporated the sugge sted edits as we belie ve that prescribed fires, because they are anthropogenic in orig in, could be addressed under the interstate transport provisions in the CAA. However, as indicated in the curr ent preamble language, the EPA does not expect downwind states to provide a case-specific justification to support the “not reasonably c ontrollable or preventable” criterion for emissionsgenerating activity that occurs outside of the boundaries of the state (or tribal lands)

within which the concentration at issue was monitored.

21) Page 106-107 – Reviewer recommends revi sing the sentence to state the following:

a. In such a scenario, even though the fire would meet the definition of a wildfire and even though we are proposing that in general wildfires will not need to be reviewed individually agai nst the not reasonably controllable or preventable criterion, we would expect the fire ma nager to employ appropriate BSMP as described in section V.F.2.d when possible although this use of BSMP is not a

criteria for EPA concurren ce on a demonstration

.

Response: We have not incorporated the suggested edits. We believe the existing language provides sufficient flexibility thr ough use of the terms “appropriate BSMP” and “when possible.” We will apply a weight of evidence approach when considering the merits and case-by-case nature of individua l exceptional events demonstrations.

22) Footnote 82 – Reviewer recomm ends revising “populated ar es” to “populated areas.”

Response: We have incorpor ated commenter’s suggested language (now footnote 87).

23) Page 189 – Reviewer recommends clarifying whether mitigation plans are federally enforceable and pay of the SIP. Current stat e wildfire emergency response plans may fit

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12 this need (e.g., OR, WA, CA) but they vary from year to year due to budget and personnel.

Response: We have added language to clar ify that neither option for implementing a mitigation plan would require that the plan be included in a SIP or otherwise be federally

enforceable.