Enclosure

EPA Response to Petition for R econsideration from Earthjustice

By letter dated July 19, 2012, Earthjustice petitioned the EPA to reconsider the final 2012 ozone area designation for Uintah and Duchesne Counties in the Uinta Basin Unclassifiable Area. For the reasons discussed below, the EPA is denying the petition. For the sake of clarity, we have organized this response according to the struct ure of the July 19, 2012 petition.

Background

In a letter from the EPA Region 8 Regional Administrato r James B. Martin to Ut ah Governor Gary R. Herbert dated December 8, 2011, the EPA notified the State of Utah how it intended to modify the state’s recommendation regarding de signation of areas within the state for the 2008 ozone National Ambient Air Quality Standards (NAAQS). Among othe r things, the EPA stated that it intended to designate the Uinta Basin of Utah as an unclassifiable ozone area becaus e, while existing monitors in the

basin showed ozone concentrations above the level ofthe standard, the monitors were classified as nonregulatory.

On December 20, 2011, the EPA published a notice in the Federal Register providing the public with an opportunity to comment on the EPA’s letters to the states setting forth whether and, if so, how it intended to modify state designation recommenda tions. The EPA received one public comment, from WildEarth Guardians, (one of the pa rties to this petition) regarding its intended designation of the Uinta

Basin. The comment asserted that the term non-regulatory is not defi ned in either the Clean Air Act (hereinafter the Act) nor in the EPA regulations, and thus the EPA s hould designate the Uinta Basin as a

nonattainment area based on the non-regulatory data in the EPA AQS air quality database.

In response to this comment, the EPA prepared a detailed response [EPA Response to Comments (RTC), pp. 72-74] summarizing our concerns about usi ng the data from the available monitors in the Uinta Basin for regulatory decisions, and specifically for designation purp oses. The available data in the basin, from the first efforts to survey air quality in this remote area, was a combination of data collected by industry under enforcement consent decrees which could not comply completely with regulations intended for government monitoring operations, and re search monitoring by the National Park Service using monitors which were not federa l reference or equivalent methods.

Petitioner’s Arguments

I. The EPA did not provide an opportunity for comment on the EPA’s response to comments.

Issue: The petitioner asserts that the EPA must reconsider the Ui nta Basin unclassif iable designation because the EPA’s rationale for considering the Uint a Basin data non-regulatory appeared for the first time only in the EPA’s RTC document so that it was impracticable for petitioners to comment on that

rationale. Petitioners also assert th at publication of the RTC occurred after the date of the final rule.

Response: The EPA submitted the RTC to the electronic docket on Apri l 30, 2012, the date the Administrator issued the designatio ns. The docket staff uploaded the RT C for public viewing on May 16, 2012. As a general matter, agencies are not re quired to provide an additional opportunity for public comment on RTCs or on information supporting an RTC. Such an approach would result in an unworkable, endless rulemaking process.With regard to the designation pro cess, there is another r eason that an additiona l opportunity for public

comment is not warranted. Section 107(d)(2)(B) of the Act specifically waives the notice and public comment process of the Administrati ve Procedure Act for initial area designations for new or revised NAAQS. Although no public comment period is require d, the EPA opted to provide such a comment period for the 2012 ozone designations.

Moreover, we do not believe that any information provided in the RTC document establishes grounds for re-opening the designation purs uant to a petition for reconsider ation. The information in the RTC merely provides further explana tion of the EPA’s rationale for not relying on the non-regulatory monitors for purposes of establishing a nonattainm ent designations category for the area and does not create a new justificatio n for the EPA’s decision.

II. The EPA cannot disregard sound reliable data.

Issue: The petitioner asserts that Congress intended in the Act that the EPA make attainment decisions

based on “available data.” Since the Uinta Basin data are available a nd show a violation, the EPA must

find the area to be in nonattainme nt, rather than unclassifiable.

Response: The Petitioner could have raised this issue during the co mment period and failed to do so; thus, this issue is not a proper basis for reconsid eration. We disagree that Congress evidenced any specific intent regarding what da ta should be considered for desi gnations. Most NAAQS, as defined by 40 CFR Part 50, explicitly require that data used for comparison to the NAAQS come from ambient monitors operating in accordance with 40 CFR Part 58. For ozone, this requirement is not explicit in Part 50, but the EPA made clear in the rulemaki ng establishing the 2008 8-hour ozone NAAQS that such compliance was needed to allow monitored data to be used for NAAQS compliance. For example, see 73 FR 16502 regarding upgrading the EPA CASTNET ozone monitors to compliance with 40 CFR Part 58, Appendix A: “EPA note s that the resulting O 3 ambient data from the upgraded sites will meet Appendix A requirements as is presently the case for O 3 data from State opera ted monitors and NPS

monitors. These data will be deemed acceptable for NAAQS comparison objectives and available in the AQS database beginning in 2008” (emphasis added).

The requirement that monitors used for NAAQS co mpliance be operated in accordance with Part 58 derives from the Act, where Section 319 (42 USC § 7619) states that “the Administrator shall promulgate regulations establishing an air quality monitoring system throughout the United States which — (1) utilizes uniform air quality monitoring criteria and methodology” and further states that “Any air quality monitoring system required under any applicable implementati on plan under section 7410 of this title shall, as soon as practicable following promulga tion of regulations under this section, utilize the standard criteria and methodology . . . establishe d under such regulations.” On May 10, 1979, the EPA published a final rule promulgating 40 CFR Part 58, stating (44 FR 27558) “Criteria to be followed when measuring air quality and provisions for daily ai r pollution index reporting are established in Part 58 as required by Section 319 of the Act.” Thus Part 58 of the Code of Federa l Regulations defines the regulatory methodology for ambient air monitoring required by the Act.

Although we disagree that Congre ss required the EPA to rely on the non-regulatory monitors for purposes of determining whether these areas are viol ating the 2008 ozone NAAQS, the EPA did not disregard the non-regulatory data from the Uinta Basin; in fact, the data are the reason the EPA designated the Uinta Basin of Utah as unclassifiable for the 2008 ozone NAAQS.III. The EPA’s failure to approve the monitoring Quality Assurance Project Plan (QAPP) does not call into question the data validity.

Issue: The petitioner asserts that the EPA does not identify any regul ation requiring the EPA approval of QAPPs for the specific circumstance s surrounding the operation of the monitors in question (that is, monitors run by industry under enforcement settlement agreements), and further that the EPA’s failure to approve the plan is merely a technicality and does not provide adequate jus tification for not using the

data.

Response: The EPA’s regulations for ambient air m onitoring at 40 CFR Part 58 deal exclusively with regulatory monitoring by state and local governments or monitoring under governmental oversight for Prevention of Signification Deteri oration purposes. For governmental agencies collect ing regulatory data, the regulations specify how to gather and qual ity assure the data; the regulations include aspects difficult if not impossible to achie ve without governmental involvement , and so cannot be implemented completely by private entities. A Quality Assurance Pr oject Plan (QAPP) is a specific tool required by the EPA for governmental monitoring which documents the standard procedures, actions, personnel and methods used in a specific monitoring operation to ensure the day-to-day oper ations of the monitoring program result in data of quality sufficient to m eet 40 CFR Part 58 requirements and withstand court challenge. The QAPP prepared for the non-regulatory Uinta Basin monitors (which neither the EPA nor the State of Utah approved) and the quality assurance data availa ble at the time of designations (collected under the requirements of that QAPP) are not complete e nough to allow the EPA to determine that the data are appropriate for determining th at a violation of the NAAQS has occurred for designations purposes.

IV. The EPA had the authority under the controlli ng consent decrees to oversee the Uinta Basin monitoring.

Issue: The petitioner cites the data reporting requirements of the cons ent decrees pursuant to which the monitoring was established, and EPA’s ability to bring contempt proceed ings in federal court should the EPA need to direct corrective action for monitoring erro rs or deficiencies, as evidence that the EPA had sufficient oversight of the monitors to en sure regulatory monitoring was conducted.

Response: The EPA considered the monitoring requi red by the consent decree s to be non-regulatory

from the outset. See page 320 of the appendix to the Earthjus tice petition, consisting of page 22 of the Memorandum in Support of Motion to Enter Consent Decree, Attachment 1, United States v. Miller, Dyer & Co., LLC, Case 2:09-cv-00332-DAK (D. Utah) (filed Sept. 1, 2009): “The air monitoring under these consent decrees was not designed for a sp ecific regulatory purpose such as determining compliance with the NAAQS. However, the data collected will be extremely useful to determine trends

in emissions in the area. The EPA would have to re-n egotiate this settlement and the Colorado Interstate Gas settlement to make the necessary changes to a llow data collected to be used to determine NAAQS compliance.” Regulatory monitoring requires a highe r level of oversight than was conducted for the non-regulatory monitoring required by consent decree. No after-the-fact activities can substitute for oversight which did not occur at the time.V. Quality Assurance of Monitoring Data

Issue: The petitioner asserts that because raw data from August, 2009 through September, 2011, and quality assurance data from August 2009 through January 2010 are in the EPA’s air quality database, the data from the monitors are quality assured, even if the EPA has not approv ed the quality assurance project plan. The petitioner assumes that the EPA’s issue with considering the data quality assured is based on the date in 40 CFR Section 58.15(a) when stat e or local monitoring agencies are to certify data (May 1 of the year fo llowing data collection).

Response: The petitioner’s statement that the presen ce of some limited quality assurance data indicates all the data are quality assured is contrary to mon itoring quality assurance regulations. Quality assurance data consist, primarily, of biweekly single point quality control (QC) ch ecks, used to assess the precision and bias a given instrument is displaying in it s day-to-day measurements , and annual independent performance evaluations (audits) of equipment, which rely on indepe ndent staff and measuring systems

to confirm that the monitors are operating as expected and required ( see 40 CFR Part 58, Appendix A, cited in the RTC at pp. 72-73). For the Uinta Basin monitors, biweekly QC check data and daily span check data are available in AQS only for Augus t 2009 through January 2010, and no independent multipoint audit data are available. Without complete record s of both types of quality assurance data, the data cannot be considered quality assured. The petitioners ’ assumption that the EPA did not use the data for designations because of a lack of certification of the 2011 data is incorrect; rather, the EPA does not consider the data appropriate for designation purpos es because it does not meet the criteria for quality

assurance.

VI. The EPA's refusal to rely on informatio n other than "regulatory monitoring" is inconsistent with EPA's own policies and past practice.

Issue: The petitioner asserts that the EPA’s insistence that monito ring data be “regulatory” is inconsistent with 1) the EPA’s sugges tion that it would use modeling for SO 2 designations; 2) the EPA’s prior use of modeling data in designating Billings, M ontana nonattainment for SO 2 ; and 3) the EPA’s use of data other than from regul atory air quality monitors in es tablishing boundaries for nonattainment

areas.

Response: The Petitioner could have raised this issue during the co mment period and failed to do so; thus, this issue is not a proper basis for reconsid eration. Nevertheless, we disagree that the EPA’s proposed use of modeling for purpos es of designations for the SO 2 NAAQS is inconsistent with or relevant for the EPA’s decision to rely on air quality monitoring consistent with the EPA’s regulations for purposes of designations for the 2008 ozone NAAQ S. The EPA has never relied on modeling data, or anything other than quality assu red data from monitors that ar e part of an approved monitoring system for ozone designations. 1

1 See 77 FR 30091: “The final ozone de signations are based primarily on certified air quality monitoring data from calendar years 2008–2010, which was the most recent certified data available to the EPA at

the time the EPA notified the states of its intend ed modifications to thei r recommendations”; 69 FR 23860: “Therefore, today’s designations and classi fications are generally based on monitoring data collected in 2001–2003 although other re levant years of data may ha ve been used in certain circumstances”; 56 FR 56697: “The primary years the EPA used for purposes of designations and classifications pursuant to this notice were 1987-1989 (3-year period for oz one and 1988-1989 (2-yearIn contrast to ozone, which is a regional secondary pollutant, elevated short-term SO 2 data often results from direct impingement of plumes. Direct impingeme nt is highly variable sp atially, and thus can be difficult to detect only through monitoring. EPA has ther efore historically relied on both monitoring and modeling to determine whether an area is violating the SO 2 NAAQS. See 75 FR 35554: “For a shortterm 1-hour standard, dispersion modeling of stati onary sources will generally be more technically appropriate, efficient, and effective because it take s into account fairly infrequent combinations of meteorological and source operating conditions that can contribute to peak ground-level concentrations

of SO 2 . Even an expansive monitoring network could fa il to identify all such locations.” Moreover, the EPA’s review of a wider variety of data to determine whether an area is contributing to a NAAQS violation (that is, in setting boundaries) is not inconsis tent with its historic approach of relying solely on monitoring data to determine whethe r an area is violating a NAAQS. Setting boundaries around areas contributing emissions to a violating monitor must inhere ntly use methods other than air quality monitoring, as the scientific questions involved are different.

VII. New information demonstrates the n eed for a nonattainment designation.

Issue: The petitioner points to co ntinued leasing of lands within the Uinta Basin for oil and gas development as a sign that the emissions leading to elev ated ozone in the basin ar e likely to continue to

increase in the absence of a nonattainment designation.

Response: We disagree that these future and ongoing activities support reconsideration of the designation. The CAA provides for re designation of areas as an appr opriate mechanism to address changes that arise after the EPA ha s issued the initial designations. Ho wever, until the area has sufficient regulatory monitoring data, the EP A would not be able to consid er redesignating the area from

unclassifiable to either at tainment or nonattainment. The EPA is wo rking with the Ute Indian Tribe of the Uintah and Ouray Reservation, the Utah Depart ment of Environmental Quality and with local industry to collect sufficient regulatory da ta in the basin to allow redesignation.

period) for CO. In some cases, the EPA used co mplete 1988-1990 (ozone) or 1989-1990 (CO) data if they were quality assured and public ly available in the AIRS [Aerometric Information Retrieval System (EPA’s National Air Quality Databa se)] by February 13, 1991, and the st ate requested that EPA use it.”