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Clean Air Act Promulgation of Extension of Attainment Dates for PM10 Nonattainment Areas; Utah
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[Federal Register: June 18, 2001 (Volume 66, Number 117)]
[Rules and Regulations]
[Page 32752-32760]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jn01-20]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[UT-001-0033; FRL-6996-9]
Clean Air Act Promulgation of Extension of Attainment Dates for
PM10 Nonattainment Areas; Utah
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is granting a one-year extension of the attainment date
for the Salt Lake County, Utah nonattainment area for particulate
matter with an aerodynamic diameter less than or equal to a nominal 10
micrometers (PM10). EPA is also granting two one-year
extensions of the attainment date for the Utah County, Utah PM10
nonattainment area. Salt Lake and Utah Counties failed to attain the
National Ambient Air Quality Standards (NAAQS) for PM10 by
the applicable attainment date of December 31, 1994. The action is
based on EPA's evaluation of air quality monitoring data and extension
requests submitted by the State of Utah. EPA is also making the
determination that Salt Lake County, Utah attained the PM10
NAAQS as of December 31, 1995 and Utah County, Utah attained the
PM10 NAAQS as of December 31, 1996. The intended effect of
this action is to approve requests from the Governor of Utah in
accordance with section 188(d) of the Clean Air Act (CAA).
EFFECTIVE DATE: This final rule is effective July 18, 2001.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the Air
and Radiation Program, Environmental Protection Agency, Region VIII,
999 18th Street, Suite 300, Denver, Colorado 80202-2466. Copies of the
State documents relevant to this action are available for public
inspection at the Utah Department of Environmental Quality, Division of
Air Quality, 150 North 1950 West, Salt Lake City, Utah 84114.
FOR FURTHER INFORMATION CONTACT: Cindy Rosenberg, EPA, Region VIII,
(303) 312-6436.
SUPPLEMENTARY INFORMATION: On September 21, 2000 (65 FR 57127), EPA
published a notice of proposed rulemaking (NPR) for Utah. The NPR
proposed approval of a one-year extension of the attainment date for
the Salt Lake County, Utah PM10 nonattainment area and two
one-year extensions of the attainment date for the
[[Page 32753]]
Utah County, Utah PM10 nonattainment area.
Throughout this document, wherever ``we'', ``us'', or ``our'' are
used, we mean the Environmental Protection Agency (EPA).
Table of Contents
I. EPA's Final Action
A. What Is EPA Approving?
B. What Is the History Behind This Approval?
II. Basis for EPA's Action
A. Salt Lake County
1. Explanation of the Attainment Date Extension for the Salt
Lake County PM10 Nonattainment Area.
2. Determination That the Salt Lake County PM10
Nonattainment Area Attained the PM10 NAAQS as of December
31, 1995.
B. Utah County
1. Explanation of the Attainment Date Extension for the Utah
County PM10 Nonattainment Area.
2. Determination That the Utah County PM10
Nonattainment Area Attained the PM10 NAAQS as of December
31, 1996.
III. Summary of Public Comments and EPA's Responses
IV. Administrative Requirements
I. EPA's Final Action
A. What Is EPA Approving?
In response to requests from the Governor of Utah, we are granting
a one-year attainment date extension for the Salt Lake County, Utah
PM10 nonattainment area and two one-year attainment date
extensions for the Utah County, Utah PM10 nonattainment area
in order to address CAA requirements. The effect of these actions is to
extend the attainment date for the Salt Lake County, Utah
PM10 nonattainment area from December 31, 1994 to December
31, 1995 and the attainment date for the Utah County, Utah
PM10 nonattainment area from December 31, 1994 to December
31, 1995 and from December 31, 1995 to December 31, 1996. Our action to
extend the attainment date for Salt Lake County is based on monitored
air quality data for the national ambient air quality standard (NAAQS)
for PM10 from the years 1992-94 and the action for Utah
County is based on data from the years 1992-94 and 1993-1995. In
addition, based on quality-assured data meeting the requirements of 40
CFR part 50, appendix K, we are determining that, as of December 31,
1995, Salt Lake County attained the PM10 NAAQS, and that, as
of December 31, 1996, Utah County attained the PM10 NAAQS.
With this final approval, consistent with CAA section 188, the areas
will remain moderate PM10 nonattainment areas and avoid the
additional planning requirements that apply to serious PM10
nonattainment areas.
This action should not be confused with a redesignation to
attainment under CAA section 107(d) because Utah hasn't submitted a
maintenance plan under section 175(A) of the CAA or met the other CAA
requirements for redesignation. The designation status in 40 CFR part
81 will remain moderate nonattainment for both areas until such time as
Utah requests, and meets the CAA requirements for, redesignations to
attainment.
B. What Is the History Behind This Approval?
As initial moderate PM10 nonattainment areas, both Salt
Lake and Utah Counties were required by CAA section 188(c)(1) to attain
the PM10 NAAQS by December 31, 1994. Section 188(b)(2) of
the CAA requires EPA to determine whether such moderate areas have
attained the NAAQS or not within six months of the attainment date. In
the event an area doesn't attain the NAAQS by the attainment date,
section 188(d) allows States to request and EPA to approve attainment
date extensions if certain criteria are met. On May 11, 1995, the State
of Utah requested a one-year extension of the attainment date for both
Salt Lake and Utah Counties. On October 18, 1995, we indicated that we
were granting the requested one-year extensions. We also indicated in a
letter dated January 25, 1996 that we would publish a rulemaking action
on the extension requests ``in the very near future,'' but we didn't do
so. Nor did we publish determinations in the Federal Register that the
areas had not attained the NAAQS as of December 31, 1994. On March 27,
1996, the State of Utah requested a second one-year extension of the
attainment date for Utah County. We didn't publish a determination in
the Federal Register that Utah County had not attained the NAAQS as of
December 31, 1995.
We are now approving the requested extension of the attainment
dates for the Salt Lake County PM10 nonattainment area and
the Utah County PM10 nonattainment area from December 31,
1994 to December 31, 1995. We are also approving the requested
extension of the attainment date for the Utah County PM10
nonattainment area for an additional year--until December 31, 1996. As
we explain more fully below, we believe these extensions are warranted
under CAA section 188(d). In addition, we are finding that the Salt
Lake County PM10 nonattainment area attained the
PM10 NAAQS as of December 31, 1995 and the Utah County
PM10 nonattainment area attained the PM10 NAAQS
as of December 31, 1996.
II. Basis for EPA's Action
A. Salt Lake County
1. Explanation of the Attainment Date Extension for the Salt Lake
County PM10 Nonattainment Area
a. Air Quality Data. We are using data from calendar year 1994 to
determine whether the area met the air quality criteria for granting a
one-year extension of the attainment date under section 188(d) of the
CAA.
The Salt Lake County PM10 nonattainment area includes
the entire county. In 1994, Utah's Department of Air Quality (UDAQ or
Utah) operated six PM10 monitors, which were state and local
air monitoring stations (SLAMS) and national air monitoring sites
(NAMS), in Salt Lake County. We deemed the data from these sites valid
and the data were submitted by Utah to be included in AIRS.
In 1994, there were eight exceedances of the 24-hour
PM10 NAAQS at one monitor (North Salt Lake Site) and one
exceedance of the 24-hour NAAQS at another monitor (AMC Site). Based on
nearby construction activity, Utah requested that the eight exceedances
recorded at the North Salt Lake Site in 1994 be excluded under our
``Guideline on the Identification and Use of Air Quality Data Affected
By Exceptional Events,'' (EPA-450/4-86-007). We determined that the
North Salt Lake monitor was influenced by highly localized, fugitive
dust events caused by the construction activity occurring in the
immediate area. Because of those impacts from localized construction
near the North Salt Lake site, all data from June 8 to November 23,
1994 were excluded from the data set used in calculations for
attainment/nonattainment purposes.
With the exclusion of the above-mentioned block of data, there was
only one exceedance recorded at one other monitor (AMC site).
Therefore, with only one exceedance of the PM10 NAAQS
recorded in 1994, the area met one of the requirements to qualify for
an attainment date extension under section 188(d).\1\
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\1\ The Act states that no more than one exceedance may have
occurred in the area (see section 188(d)(2)). The EPA interprets
this to prohibit extensions if there is more than one measured
exceedance of the 24-hour standard at any monitoring site in the
nonattainment area. The number of exceedances will not be adjusted
to expected exceedances as long as the minimum required sampling
frequencies have been met.
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b. Compliance with the Applicable SIP. The State of Utah submitted
the PM10 SIP for Salt Lake County on November 14, 1991. On
December 18, 1992 (57 FR 60149), EPA proposed to
[[Page 32754]]
approve the plan as satisfying those moderate PM10
nonattainment area requirements that were due November 15, 1991. On
July 8, 1994 (59 FR 35036), EPA took final action approving the Salt
Lake County PM10 SIP. The SIP control strategies consist of
controls for stationary sources and area sources (including controls
for woodburning, mobile sources, and road salting and sanding) of
primary PM10 emissions as well as sulfur oxide
(SOPMX) and nitrogen oxide (NOX) emissions, which
are secondary sources of particulate emissions.
Based on information the State submitted in 1995, we believe that
Utah was in substantial compliance with the requirements and
commitments in the applicable implementation plan that pertained to the
Salt Lake County PM10 nonattainment area when the State
submitted its extension request. The milestone report indicates that
Utah had implemented most of its adopted control measures, and
therefore we believe Utah substantially implemented the RACM/RACT
requirements applicable to moderate PM10 nonattainment
areas.
c. Emission Reduction Progress. With its May 11, 1995, request for
a one-year attainment date extension for Salt Lake County, the State of
Utah also submitted a milestone report as required by section 189(c)(2)
of the Act that must, under section 171(1), demonstrate annual
incremental emission reductions and reasonable further progress (RFP).
On September 29, 1995, Utah submitted a revised version of the
milestone report. The revised 1995 milestone report estimated current
emissions from all source categories covered by the SIP and compared
those estimates to 1988 actual emissions. These estimates of current
emissions indicated that total emissions of PM10,
SO2, and NOX had been reduced by approximately
60,752 tons per year, from a 1988 value of 150,292 tons per year to a
then current value of 89,540 tons per year.
The effect of these emission reductions appears to be reflected in
ambient measurements at the monitoring sites. Data from these sites
show no violations of either the annual or the 24-hour PM10
standard since the 1992-1994 period. Furthermore, in 1994 there was
only one exceedance of the 24-hour standard and the highest monitored
annual standard at any monitor was 47µg/m\3\. This is evidence
that the State's implementation of PM10 SIP control measures
resulted in emission reductions amounting to reasonable further
progress in the Salt Lake County PM10 nonattainment area.
2. Determination That the Salt Lake County PM10
Nonattainment Area Attained the PM10 NAAQS as of December
31, 1995
Whether an area has attained the PM10 NAAQS is based
exclusively upon measured air quality levels over the most recent and
complete three calendar year period. See 40 CFR part 50 and 40 CFR 50,
appendix K. With the effective date of this action, the extended
attainment date for Salt Lake County will be December 31, 1995, and the
three year period will cover calendar years 1993, 1994, and 1995.
The PM10 concentrations reported at six different
monitoring sites showed one measured exceedance of the 24-hour
PM10 NAAQS between 1993 and 1995. Because data collection
was less than 100% at these monitoring sites, the expected exceedance
rate for 1994 was 1.03. For 1993 and 1995, it was 0.0. Thus, the three-
year average was less than 1.0, which indicates Salt Lake County
attained the 24-hour PM10 NAAQS as of December 31, 1995.
Review of the annual standard for calendar years 1993, 1994 and
1995 reveals that the area also attained the annual PM10
NAAQS by December 31, 1995. There was no violation of the annual
standard for the three year period from 1993 through 1995.
B. Utah County
1. Explanation of the Attainment Date Extension for the Utah County
PM10 Nonattainment Area
a. Air Quality Data. The Utah County PM10 nonattainment
area includes the entire county. In 1994 and 1995, UDAQ operated four
PM10 monitoring sites, which were either SLAMS or NAMS, in
Utah County. We deemed the data from these sites valid and the data was
submitted by Utah to be included in AIRS.
We are using data from calendar year 1994 to determine whether the
area met the air quality criteria for granting a one-year extension of
the attainment date, from December 31, 1994 to December 31, 1995, under
section 188(d) of the CAA. We are using calendar year 1995 data to
determine whether the Utah County area met the air quality criteria for
granting an extension of the attainment date from December 31, 1995 to
December 31, 1996.
In 1994, there were no exceedances of the 24-hour or annual
PM10 NAAQS in Utah County. Since no exceedances of the
PM10 NAAQS were recorded in 1994, the area met one of the
requirements to qualify for a one-year attainment date extension under
section 188(d).\2\ In 1995, there were no exceedances of the 24-hour or
annual PM10 NAAQS in Utah County. Since no exceedances of
the PM10 NAAQS were recorded in 1995, the area met one of
the requirements to qualify for a second one-year attainment date
extension under section 188(d).
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\2\ The Act states that no more than one exceedance may have
occurred in the area (see section 188(d)(2)). The EPA interprets
this to prohibit extensions if there is more than one measured
exceedance of the 24-hour standard at any monitoring site in the
nonattainment area. The number of exceedances will not be adjusted
to expected exceedances as long as the minimum required sampling
frequencies have been met.
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b. Compliance with the Applicable SIP. The State of Utah submitted
the PM10 SIP for Utah County on November 14, 1991. On
December 18, 1992 (57 FR 60149), EPA proposed to approve the plan as
satisfying those moderate PM10 nonattainment area
requirements due November 15, 1991. On July 8, 1994 (59 FR 35036), EPA
took final action approving the Utah County PM10 SIP. The
SIP control strategies consist of controls for stationary sources and
area sources (including controls for woodburning, mobile sources, and
road salting and sanding) of primary PM10 emissions as well
as sulfur oxide (SOX) and nitrogen oxide (NOX)
emissions, which are secondary sources of particulate emissions.
Based on information the State submitted in 1995, we believe that
Utah was in substantial compliance with the requirements and
commitments in the applicable implementation plan that pertained to the
Utah County PM10 nonattainment area when Utah submitted its
first extension request. The milestone report indicates that Utah
County had implemented most of its adopted control measures, and
therefore we believe Utah substantially implemented the RACM/RACT
requirements applicable to moderate PM10 nonattainment
areas. Based on information the State submitted in 1996, we believe
that Utah was in substantial compliance with the requirements and
commitments in the applicable implementation plan that pertained to the
Utah County PM10 nonattainment area when the State submitted
its second extension request. The milestone report indicates that the
State continued to implement its adopted control measures, reducing
PM10 loadings even further, and therefore we believe Utah
substantially implemented its RACM/RACT requirements.
c. Emission Reduction Progress. With its May 11, 1995, request for
a one-year attainment date extension for Utah County, the State of Utah
also submitted
[[Page 32755]]
a milestone report as required by section 189(c)(2) of the Act that
must under section 171(1), demonstrate annual incremental emission
reductions and RFP. On September 29, 1995, Utah submitted a revised
version of the milestone report. The revised 1995 milestone report
estimated current emissions from all source categories covered by the
SIP and compared those estimates to 1988 actual emissions. These
estimates of current emissions indicated that total emissions of
PM10, SO2, and NOX had been reduced by
approximately 3,129 tons per year, from a 1988 value of 25,920 tons per
year to a then current value of 22,791 tons per year.
With its March 27, 1996 request for an additional one-year
attainment date extension for Utah County, the State of Utah submitted
another milestone report. Utah submitted a revised version of this
milestone report on May 17, 1996. The March 27, 1996 milestone report
estimated current emissions from all source categories covered by the
SIP and compared those estimates to 1988 actual emissions. These
estimates of current emissions indicated that total emissions of
PM10, SO2, and NOX had been reduced
from the 1988 total by approximately 8,391 tons per year.
The effect of these emission reductions appears to be reflected in
ambient measurements at the monitoring sites. Data from these sites
show no exceedances of either the annual or the 24-hour PM10
standard in 1994 or 1995. The vast majority of monitored values were
well below the 24-hour standard. The highest annual value recorded at
any monitor during 1994 and 1995 was 39µg/m\3\. This is
evidence that the State's implementation of PM10 SIP control
measures resulted in emission reductions amounting to RFP in the Utah
County PM10 nonattainment area.
2. Determination That the Utah County PM10 Nonattainment
Area Attained the PM10 NAAQS as of December 31, 1996
Whether an area has attained the PM10 NAAQS is based
exclusively upon measured air quality levels over the most recent and
complete three calendar year period. See 40 CFR part 50 and 40 CFR part
50, appendix K. With the effective date of this action, the extended
attainment date for Utah County will be December 31, 1996, and the
three year period will cover calendar years 1994, 1995, and 1996.
The PM10 concentrations reported at four different
monitoring sites showed no measured exceedances of the 24-hour
PM10 NAAQS between 1994 and 1996, which indicates Utah
County attained the 24-hour PM10 NAAQS as of December 31,
1996.
Review of the annual standard for calendar years 1994, 1995 and
1996 reveals that the area also attained the annual PM10
NAAQS by December 31, 1996. No monitoring sites showed a violation of
the annual standard in the three year period from 1994 through 1996.
III. Summary of Public Comments and EPA's Responses
(1) Comment: Four commenters stated that they were in favor of
EPA's proposed attainment date extensions for Salt Lake County and Utah
County and that both nonattainment areas had met the requirements for
receiving an attainment date extension. The commenters pointed out that
both nonattainment areas have been attaining the PM10 NAAQS
since their proposed extended attainment dates.
Response: We agree that both Salt Lake County and Utah County met
all of the requirements to receive an extension of their attainment
dates and that both counties attained the PM10 NAAQS.
(2) Comment: One commenter states that the granting of attainment
date extensions after the attainment determination deadlines have
passed is not allowed by the CAA. The commenter claims that because we
didn't extend the attainment dates for Salt Lake and Utah Counties
before the deadline for bumping up the areas, we were obligated to
announce their reclassification to ``serious'' no later than June 31,
[sic]
1995.
Response: The commenter is correct that the Act required us to
determine by June 30, 1995 whether the areas had attained or not. The
commenter is also correct that we failed to make this determination by
June 30, 1995. The commenter argues that reclassification to serious is
the only permissible result from our failure to make an attainment
determination by June 30, 1995. However, the Act does not require this
result.
Section 188(b)(2) of the Act reads, ``If the Administrator finds
that any Moderate Area is not in attainment after the applicable
attainment date--(A) the area shall be reclassified by operation of law
as a Serious Area. * * *'' (emphasis added). We never made the
requisite finding--that the areas had not attained by December 31,
1994--to trigger a bump up to ``serious'' and therefore, a bump up had
not occurred. The commenter is attempting to read the requirement for
an EPA finding of nonattainment out of the Act.
There is nothing in section 188 that states that EPA, having failed
to meet the June 30, 1995 deadline for determining whether the areas
had attained or not, is then bound to find that the areas did not
attain. We believe that EPA retains discretion to avail itself of any
of the options provided by the Act--find that the areas had attained,
find that the areas had not attained, or find that an attainment date
extension was warranted--if the criteria for such options are met. In
this case, we believe that attainment date extensions were warranted,
and we do not believe our delay in granting such extensions should form
the basis for forcing a bump up of the areas to serious and the
imposition of the stricter emission limits and controls that go along
with such a bump up. It would indeed be odd, and in our view
inconsistent with the statute, to ``penalize'' sources within the areas
in question, due to our failure to act in a timely way.
We note again that in an October 18, 1995 letter to Russell
Roberts, the then director of the Utah Division of Air Quality, we
stated that we were granting the extensions, and in a subsequent
letter, we stated that we would publish the requisite notices in the
Federal Register. We failed to follow through with these actions in a
timely way, and we are now trying to correct our failure.
Also, as indicated above, Salt Lake County and Utah County attained
the PM10 NAAQS as of the extended attainment dates under
this action (December 31, 1995 and December 31, 1996, respectively).
Under these circumstances, a bump up makes even less sense.
(3) Comment: One commenter states that the attainment date
extensions are contrary to our guidance, which requires states to
submit requests for extensions under section 188(d) within 90 days
after the attainment date, and requires resolution of such requests
within 6 months after the attainment date. According to the commenter,
the guidance clearly reads section 188(d) as applying only up to the
point at which a bump up is required. The commenter argues that we have
no basis for departing from our longstanding guidance in this matter.
Response: Nothing in the Act specifies a particular deadline for a
State request for an attainment date extension. In this case, the State
of Utah submitted an attainment date extension request on May 11, 1995,
before section 188's June 30, 1995 deadline for us to determine the
areas' attainment status. In addition, as noted in Utah's May 11, 1995
request, Utah had previously submitted a draft request to us. We think
Utah initiated its request for attainment date extensions within a
[[Page 32756]]
reasonable period of time, and provided supplemental information to
clarify the request in a timely way. Utah and EPA worked through issues
with the request over the summer of 1995, and, in the fall of 1995, we
indicated we were approving the extension requests. Under the
circumstances, we think Utah's actions were reasonably consistent with
our guidance. We don't believe the fact that Utah's formal request fell
outside the 90-day period described in our guidance forms an adequate
basis to ignore or deny Utah's request. Our guidance is just that--
guidance; it cannot be considered a binding document.
We don't believe our guidance speaks to the issue of what should
happen in a case where EPA fails to make an attainment determination by
June 30, 1995, as required by the Act. If anything, our guidance
clearly recognizes that we must first determine that the area has not
timely demonstrated attainment of the NAAQS before the area is
reclassified to serious under section 188(b). (See page 10 of our
November 14, 1994 guidance memorandum, ``Criteria for Granting 1-Year
Extensions of Moderate PM-10 Nonattainment Area Attainment Dates,
Making Attainment Determinations, and Reporting on Quantitative
Milestones,'' signed by Sally L. Shaver.) We believe our position is
reasonable. The alternative position, expressed by the commenter, would
impose the burden of EPA's failure to act in a timely way upon Utah
(additional planning requirements) and sources within the areas (more
stringent control requirements in the form of BACM/BACT), regardless of
whether an extension of the attainment date is warranted. We don't
believe this position is reasonable.
If EPA is not allowed to exercise its discretion to grant an
extension of the attainment date where the statutory criteria have been
met--discretion Congress provided us alongside the requirement to
determine whether areas timely attained--it would appear to frustrate
Congress' obvious desire to provide States that are close to achieving
attainment an alternative to undergoing reclassification.
(4) Comment: One commenter refers to air quality data collected at
an air monitoring station in Salt Lake County. The commenter asserts
that the North Salt Lake monitoring station recorded a violation of the
annual PM10 standard and eight exceedances of the 24-hour
standard in 1994 and that we may not exclude these data from regulatory
use. Thus, according to the commenter, Salt Lake County doesn't meet
one of the criteria for an attainment date extension--that the area
recorded no exceedances of the annual PM10 standard and no
more than one exceedance of the 24-hour PM10 standard in the
year preceding the extension year. The commenter quotes from a letter
dated October 18, 1995, from Richard Long, Director, Air Program, EPA
Region VIII, to Russell Roberts, Director, Utah Division of Air
Quality. In the letter, we agreed to exclude some PM10 data
collected at the North Salt Lake station in 1994 and agreed to grant a
one-year extension of the attainment date. Attachment I of the letter
elaborated our technical comments. Part of the attachment is quoted by
the commenter and reads, ``The data collected at the North Salt Lake
station in the summer and fall of 1994 should be regarded as ordinary
data, unaffected by exceptional events.'' The commenter indicates that
we had determined that the data had not met criteria for exclusion and
we had concluded that there was no basis for excluding the data due to
exceptional events. The commenter also points out that although we
determined that the data didn't qualify as an exceptional event, we did
decide that there were ``extenuating circumstances'' during the 1994
construction episode and because of this, the exceedances from the
North Salt Lake monitor should be excluded. The commenter cites the EPA
document, Guideline on the Identification and Use of Air Quality Data
Affected by Exceptional Events, EPA-450/4-86-007 (1986) and asserts
that the criteria in the document are the sole basis upon which we may
exclude exceedances that are allegedly due to construction activity.
The commenter asserts that neither the Act nor EPA rules or guidance
allow the exclusion of exceedance data based on a generalized claim of
``extenuating circumstances.''
Response: We disagree with both of the commenter's assertions,
i.e., that there was no basis for deciding to exclude the data, and
that EPA had determined that the data had not met EPA criteria for
exclusion from regulatory use. The commenter erroneously believes that
the statement in the October 18, 1995 letter to the Director of Utah's
DAQ indicating that we were not inclined to treat the 1994 North Salt
Lake station's data as data affected by exceptional events precluded us
from excluding the data for regulatory use on any other grounds.
Our regulations explaining the computations necessary for
collecting and analyzing particulate matter data in order to make
appropriate regulatory determinations, including attainment
determinations, are found at appendix K of 40 CFR part 50. Section 1.0
of appendix K explains that ambient PM10 data must be
measured by a reference method based on appendix J of part 50, and
designated in accordance with 40 CFR part 53. Similarly, while
expressly mentioning the required frequency of measurements, that
section indicates, generally, that the data protocols to be followed in
order to make determinations regarding attainment must be consistent
with 40 CFR part 58. In addition to specifications regarding the
frequency of ambient measurements, part 58 addresses other
requirements, including proper siting of monitoring stations (to ensure
that the data samples correctly reflect the regulatory goal for which
monitoring is being undertaken--see 40 CFR part 58, appendix D), and
pollutant-specific probe siting criteria (to ensure the uniform
collection of compatible and comparable air quality data--see 40 CFR
part 58, appendix E). It, therefore, follows logically that ambient
data collected at sites not meeting the requirements of parts 50, 53,
and 58 of 40 CFR (and their associated Appendices) may be determined by
EPA to be inadequate, and, thus, be invalidated for purposes of
regulatory decisionmaking.
Under appendix K (and associated guidance), high ambient values of
PM10 that are determined to be due to exceptional events may
be ``flagged'', i.e., marked for special treatment, when submitted to
the AIRS database. This is because, when making required regulatory
decisions, the use of such data --which may not be representative of
typical ambient values-- could result in inappropriate estimates of the
expected annual value. Consequently, the 1986 Exceptional Events
Guideline, cited by the commenter, sets forth criteria for flagging
ambient data considered to have been influenced by exceptional events.
However, the flagging of data does not, by itself, result in the
exclusion of data from regulatory decision-making. The 1986 Guideline
document defines several types of activities that influence ambient
data and may qualify for exceptional events treatment, including
construction projects. The Guideline provides guidance for States
regarding how to treat and report data submitted under an exceptional
events claim. The reporting methodologies includes the various
conventions to ``flag'' or highlight the data when placing it in AIRS.
Focusing, as it does, on exceptional events, the 1986 Guideline does
not address, therefore, all the various circumstances and conditions
under which EPA may
[[Page 32757]]
make determinations regarding whether such data should be excluded for
regulatory purposes; it only advises States concerning what procedures
they need to follow in making data exclusion requests. The guidance
expressly states that the policy ``carries no prior presumption towards
use or non-use of flagged data.'' And, indeed, decisions on how flagged
data are used for specific regulatory purposes, e.g., attainment
designations or demonstrations, control strategy, etc., are made by EPA
on a case-by-case basis.
As noted earlier, the comments concern PM10 data,
including eight exceedances of the 24-hour National Ambient Air Quality
Standard, that were collected at the North Salt Lake station between
June 8 and November 23, 1994, resulting in an annual arithmetic mean
value for 1994 of 58µg/m\3\. Utah believed this data had been
unduly affected by a construction project next to the air monitoring
station, and advised us of its intention to flag the data.
Consequently, when it transcribed the 1994 data onto computer files for
submittal to AIRS, Utah included the letter ``J'' in a predetermined
field associated with each PM10 concentration observed
during the affected period. According to a convention of AIRS, the data
were thereby flagged as having been, in Utah's opinion, influenced by
an exceptional event. On December 19, 1994, Utah sent a letter
requesting that we approve the data from the North Salt Lake station
from June 8 to November 23, 1994 as having been influenced by an
exceptional event. A decision to exclude the flagged data would have
reduced the annual arithmetic mean value for 1994 to 47µg/m\3\.
To show our concurrence, we could have added a ``J'' to a second field
adjacent to each datum, according to the same AIRS convention. Utah's
letter was accompanied by supporting material consistent with the 1986
Guideline.
In response to this request, we noted that a similar exceedance had
occurred at the North Salt Lake station on September 30, 1993. The
State had attached an exceptional events treatment flag when it
reported the data in AIRS for the entire block of data recorded from
August 28 through October 5, 1993, the life of the construction
project. We had applied our concurrence flag only to the September 30
exceedance, however, indicating our agreement that at least that
exceedance could be considered the result of an exceptional event.
After reviewing Utah's 1994 request, we decided not to apply our ``J''
flags to the data collected from June 8 to November 23, 1994 because we
believed that the ambient event did not satisfy criteria in our
regulations and the 1986 Guideline for treatment as an exceptional
event. Primarily, we concluded that the construction near the
monitoring station during the summer and fall of 1994 was a recurrence
within one year of similar construction activity, i.e., the 1993
construction project and its resultant exceedance, and exceptional
events are defined, in part, as events that are not expected to recur
at a given location. Also, the 1986 Guideline indicates that for
consideration as an exceptional event certain activities must occur
only over a ``short time period'', but, here, the 1994 construction
project continued for longer than 30 days, (30 days being our general
rule of thumb for what is meant by the term ``short time period'' as
used in the 1986 Guideline). We advised Utah of our decision in a
letter dated March 20, 1995. In the same letter we advised Utah that we
``may have some latitude in how these data will be used in determining
the attainment status' of Salt Lake County, and asked the State for
additional information. As the letter further explained, ``[w]e will
use the additional information when considering the attainment status
of the area.''
Our October 18, 1995 letter to Utah conveyed two determinations
made by us regarding the data collected at the North Salt Lake station
between June 8 and November 23, 1994: (1) That we did not consider the
data to have been affected by exceptional events; and (2) that the data
would, nonetheless, be excluded from the data set used in the
calculations for attainment on other grounds. In deciding to exclude
the data, we considered several factors that were subsequently brought
to our attention by the State in support of their data exclusion
request, in addition to the explanation of the construction event given
in Utah's December 19, 1994 letter. These include the following:
1. Photographs, tables of PM 10 concentrations, chemical
analyses in support of mass balance estimations, and the results of
computer modeling of chemical mass balance, all of which were revised
analyses and/or elaborations or clarifications of supporting materials
submitted with Utah's December 19, 1994 letter.
2. More extensive explanations of information contained in a letter
from the Salt Lake City Department of Public Utilities describing
relevant conditions at the project site, and a labor dispute that
disrupted the construction project, also submitted with Utah's December
19, 1994 letter.
3. The State's arguments emphasizing that the small size of the
area disturbed during the construction project, that is to say, the
localized character of the episode, tended to prove that conditions,
and the consequent ambient values recorded at this single monitor, were
not representative of ambient values throughout the nonattainment area,
or with historically recorded values during summer/early fall months.
4. Additional information in support of the State's attempt to
distinguish the construction project in 1994 (the extension of a sewer
line) as different from the 1993 construction project (the extension of
a pipeline through a portion of roadway), as a basis for the assertion
that the construction, although similar in type, was non-recurring.
5. Additional materials providing further explanation of the 1994
ambient events, given in Utah's letter to EPA of April 20, 1995 (mis-
dated March 24, 1995).
6. Additional materials providing further explanation of the 1994
ambient events, submitted with Utah's milestone report of September 29,
1995.
The letter from the Salt Lake City Department of Public Utilities
mentioned in the above list explains that the construction project was
contracted to a private individual and that, during the initial phase,
a deep trench was dug about 40 feet east of the site, and the road
proceeding north from the site was also trenched in the middle for
about a \1/4\ of a mile. Along with gravel pit and hauling activities,
the project involved frequent dirt spillage along the road. This dirt
became airborne as a result of heavy vehicular traffic during commuter
hours. Due to a dispute over the contract, work was stopped at the
construction site between August 10 and September 26. EPA was also
advised that, although the contract required dust control measures to
be undertaken during the life of the project, it appears that this
requirement of the contract was not being adhered to. During the month-
and-a-half long work-stoppage, the trench had been backfilled to the
surface, but was not paved, so that dirt and sediment continued to
escape. Moreover, the placement of barricades and ``closed'' signs on
the road were apparently not successful in deterring vehicular traffic
and dust re-entrainment also continued to occur. Again, it should be
noted that this construction area was in extremely close proximity to
the monitoring station in question (estimated as being within 20 feet
of the monitor, which is located on a platform 4 meters above ground
level).
[[Page 32758]]
As described earlier, requirements that monitoring stations adhere
to proper monitoring objectives and scale of representativeness are
found in 40 CFR part 58, appendix D. In our letter to Utah dated March
20, 1995, discussed earlier in this response, although we disapproved
their request for exceptional events treatment, we asked the State to
provide additional information on the events leading to the
exceedances. In particular, we commented on and requested further
information about the appropriateness of the monitoring station site.
The letter stated:
The site of the construction with respect to the monitoring
station should have been evaluated by the State to ensure the
reasonableness of continuing to monitor at this station * * * The
State could have requested temporarily halting PM10
monitoring or relocating the PM10 monitor to help avoid
the construction influence but still monitor the area per the
PM10 SIP. The State should explain why this was not done.
Based on our review of the additional explanatory materials
supplied by Utah at our request, we believed that during the period of
construction activity in 1994 when eight PM10 exceedances
were recorded, the North Salt Lake station did not meet the approved
monitoring objective or scale of representativeness required under 40
CFR part 58. Subsequent to this, we did ask Utah to consider re-siting
the monitor because of these episodes. In particular, the proximity of
the earth-moving activities to the air monitoring station, and the
failure of the construction company to effectively implement dust
suppression control measures at the trenched areas on-site and along
the roadway, and at the site in general, resulted in the station's
effective noncompliance with the probe siting criteria and requirements
of 40 CFR part 58, appendix E. The version of this regulation that was
in effect in 1994 read, in part: ``Stations should not be located in an
unpaved area unless there is vegetative ground cover year round, so
that the impact of wind blown dusts [sic]
will be kept to a minimum.''
For all of these reasons, we determined that it was appropriate to
exclude the data collected at the North Salt Lake monitoring station as
unrepresentative of ambient effects on the population exposed to the
particulate matter generated during this period. Accordingly, because
this data was deemed to be inappropriate for NAAQS purposes, we
exercised our discretion under 40 CFR part 50, appendix K to exclude
the data from regulatory use.
(5) Comment: One commenter states that Utah has not met one of the
prerequisites for an attainment date extension--section 188(d)'s
requirement that the State has complied with all requirements and
commitments pertaining to the area in the applicable implementation
plan. The commenter cites to several EPA letters to Utah that
identified concerns with State implementation of SIP measures.
According to the commenter, there is no showing in the record that all
our concerns were met and that Utah had fully implemented the SIP.
Response: The commenter is correct that we had identified a number
of concerns with SIP implementation during the summer of 1995. However,
at our behest, the State revised its milestone report/extension request
and re-submitted it to us on September 29, 1995. On October 18, 1995,
we found that the revised report was sufficient to meet our concerns,
and indicated that we would grant the State's request for a one-year
extension for Salt Lake and Utah Counties. In that October 18, 1995
letter, from Richard R. Long, to Russell Roberts, we stated the
following:
The State has addressed EPA's comments regarding additional
support for the emission reductions from street salting. EPA's
comments on diesel I/M implementation and growth rates have also
been addressed. In addition, the State has addressed EPA's comments
regarding documentation for woodburning program implementation.
Finally, we are pleased to see that the State has also provided
additional information regarding new source review and compliance
for stationary sources.
We believe the State's September 1995 revised milestone report/
extension request, and May 17, 1996 extension request for Utah County,
are adequate to support this action.
The language of section 188(d)(1) of the Act states that the
Administrator may extend the attainment date if ``the State has
complied with all requirements and commitments pertaining to the area
in the applicable implementation plan * * *'' The commenter insists
that we cannot redefine the word ``all'' to mean ``some'' or ``most''
and asserts that if there has not been 100% compliance with SIP
requirements, the provisions of 188(d)(1) have not been met.
Initially, we note that the language of section 188(d)(1) refers to
SIP requirements and commitments that apply to the State, not
individual sources. The State has an obligation under section 110 of
the Act to enforce the requirements of the SIP, but it would be
unreasonable to expect the State to take an enforcement action for
every apparent violation of the SIP or to achieve 100% source
compliance nor have we interpreted section 110 to require that level of
enforceability. Furthermore, we believe that substantial compliance or
compliance with most requirements and commitments on the part of the
State is sufficient to support an extension where the State has
demonstrated RFP toward attaining the NAAQS. We do not believe
Congress' goal was to bump areas up to serious that didn't attain by
their applicable deadline, but appeared likely to achieve attainment
through further implementation of control measures in the SIP.
The structure of our 1994 Guidance (``Attainment Determination and
the Processing of Initial PM10 Nonattainment Area SIPs,''
November 14, 1994, signed by Sally Shaver) further explains why we
believe that substantial compliance is adequate to support an
attainment date extension. Section III of the Guidance contains our
criteria for obtaining an extension of the attainment date, and makes
clear that we were prepared to grant extensions to PM10
areas that had not yet received EPA approval of their nonattainment
SIPs. In these cases, the Guidance clearly indicates that State
compliance is to be measured against the latest federally-approved
particulate matter SIP for the area, and in many instances, this would
have been a SIP submitted in response to the pre-1990 Clean Air Act. To
further address this issue, we provided in the Guidance that we
expected States to demonstrate that (1) control measures had been
submitted in the form of a SIP revision and substantially implemented
to satisfy the RACM/RACT requirement for the area, and (2) the area had
made emission reduction progress that represented reasonable further
progress toward timely attainment of the PM10 NAAQS. In
addition, we did not state that we would not grant an extension if the
State failed to meet these requirements, but rather that we would be
``disinclined to grant an attainment date extension'' in such a case.
In other words, our Guidance recognized the difficulties some areas
were having submitting their PM10 SIPs and gaining EPA
approval within the time frames provided by the 1990 Amendments and
indicated our belief that we had some flexibility under the Act to
grant extensions of the attainment date even if all the measures
required by the 1990 amendments were not fully implemented at the time
the request was made. Pursuant to this approach, we approved a number
of extension requests. Denver's PM10 attainment date was
extended in a Federal Register notice published on October 6, 1995 (60
FR 52312) prior to the approval of a SIP
[[Page 32759]]
for the area. Likewise, the attainment dates were extended for Spokane,
Washington and Wallula, Washington (60 FR 47276), and Power-Bannock
Counties, Idaho and Sandpoint, Idaho (61 FR 20730), with a second one-
year extension granted for Power-Bannock Counties (61 FR 66602). Given
our prior practice, we believe it would be unfair to demand more from
the Salt Lake and Utah County areas especially since Utah submitted a
nonattainment SIP for these areas by the November 15, 1991 statutory
deadline and we approved the SIP before the December 31, 1994 statutory
attainment date.
So, in our view, substantial implementation is an appropriate
benchmark. For both counties, the SIP includes four main types of
measures: solid fuel burning provisions, road salting and sanding
provisions, mobile source provisions, and stationary source provisions.
The State's 1995 milestone report/extension request for both counties,
and 1996 report/extension request for Utah County, indicate that the
State substantially implemented the measures described in the SIP for
these four categories. For example, the State implemented a mandatory
no-burn program in both counties that was substantially similar to the
program described in the SIP. The State adopted a rule for road salting
and sanding that requires application of salt that is at least 92%
sodium chloride, other material as clean as salt, or vacuum sweeping
within three days of the storm. Although this wasn't identical to the
federally approved measure in the SIP at the time, we believe it
achieves substantially equivalent results. In fact, Utah submitted a
SIP revision on February 1, 1995 that embodies the revised rule. We
approved this SIP revision on February 6, 1999 (64 FR 68031) based on
our belief that it achieves substantially equivalent results to the
original provision.
The SIP discusses the possibility of closing Provo Canyon to truck
traffic. The State placed a monitor in Provo Canyon to evaluate the
impact of diesel traffic on air quality. Because the monitoring showed
no significant impact, the State concluded that there would be no
benefit from restricting heavy duty truck traffic from Provo Canyon.
Although Utah never implemented closure of Provo Canyon to truck
traffic, the State did not actually commit to such a closure in the
SIP.
The State began implementing a diesel I/M program on December 1,
1994 that is substantially similar to the program outlined in the SIP.
We note that the SIP language provided for modification of the program
in response to program experience and additional information.
For stationary sources, the State substantially implemented the
requirements contained in the SIP. In particular, the largest sources
in the areas installed and implemented RACT as anticipated by the SIP.
We note that in some cases, the State adopted and implemented changes
to the emissions limitations contained in the SIP. Although we don't
agree with them, we don't believe it is appropriate to penalize the
State for making such changes because the language of the currently-
applicable SIP appears to allow the State such latitude (see UACR 307-
1-3.2.4; Appendix A to PM10 SIP.) We have had ongoing
discussions with the State regarding these ``director's discretion''
provisions in the context of the State's future development of
redesignation requests and maintenance plans for the two counties, and
have informed the State that we believe this apparent discretion to
unilaterally change SIP terms is inconsistent with the SIP oversight
role provided EPA under the Act, and would need to be removed if
maintenance plan submissions for these areas are to be found
approvable.
The commenter is correct that our undated letter from Douglas Skie
to Russell Roberts cited concerns with permit language that purported
to replace SIP limits with emission limits in ``approval orders.''
Based on this letter and other elements of our comments at the time, it
appears that we were evaluating the State's implementation based on our
traditional view that SIP requirements may not be modified without EPA
approval of a SIP revision. However, given the language referenced
above, that is contained in the currently-applicable SIP authorizing
such changes, we don't believe that insisting on this traditional view
in response to past actions is appropriate. We believe SIP
implementation must be evaluated against the SIP as written, even
though we may not agree with all SIP terms.
Also, the commenter characterizes some of the implementation issues
as ``deficiencies in the state's NSR program'' and states that ``[a]
fully adequate NSR program is a mandatory SIP requirement as well.'' We
don't believe the commenter has accurately characterized the situation.
Utah had and continues to have a fully approved NSR program. While
there were issues with some permitting actions, our October 18, 1995
letter indicated that most of these were resolved or were non-critical
in nature. There were only two that we deemed time-critical, and we
stated our satisfaction with the progress made with respect to these
since the State was actively working to resolve our issues when we sent
our October 18, 1995 letter.
(6) Comment: One commenter refers to our October 18, 1995 letter
and points out that this letter sets out four conditions that Utah
would have to meet under the terms of the attainment date extensions
and says that the agency has failed to demonstrate that those
conditions have been fully met.
Response: Although these four comments were referred to as
conditions in our letter to Utah, these conditions are not required
under the statute or in our policy in order for an area to receive an
attainment date extension. Thus, we believe these ``conditions'' are
irrelevant to our action here in granting such extensions. Nonetheless,
we believe Utah substantially met these conditions as described
elsewhere in this document.
(7) Comment: One commenter states that we must announce that both
nonattainment areas are reclassified to serious because they failed to
attain the PM10 NAAQS by the December 31, 1994 attainment
date.
Response: We are not reclassifying either Salt Lake County or Utah
County to serious nonattainment because, as this action explains, these
areas qualified for attainment date extensions and subsequently
attained by the extended attainment dates. The action to extend the
attainment dates for these areas is being finalized in this action.
IV. Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. This action
merely approves a state request as meeting federal requirements and
imposes no requirements. Accordingly, the Administrator certifies that
this rule will not have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.). Because this rule does not impose any enforceable duty,
it does not contain any unfunded mandate or significantly or uniquely
affect small governments, as described in the Unfunded Mandates Reform
Act of 1995 (Public Law 104-4). For the same reason, this rule also
does not significantly or uniquely affect the communities of tribal
governments, as specified by Executive Order 13084 (63 FR 27655, May
10, 1998). This rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or
[[Page 32760]]
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132 (64 FR
43255, August 10, 1999), because it merely approves a state request for
an attainment date extension, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This rule also is not subject to Executive Order 13045 (62 FR
19885, April 23, 1997), because it is not economically significant.
Because EPA's role concerning today's action is only to approve a
state request for an attainment date extension, provided that such
request meets the criteria of the Clean Air Act, and to make
determinations required of EPA by the CAA, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note), relating to the use of voluntary consensus
standards, do not apply. As required by section 3 of Executive Order
12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has
taken the necessary steps to eliminate drafting errors and ambiguity,
minimize potential litigation, and provide a clear legal standard for
affected conduct. EPA has complied with Executive Order 12630 (53 FR
8859, March 15, 1988) by examining the takings implications of the rule
in accordance with the ``Attorney General's Supplemental Guidelines for
the Evaluation of Risk and Avoidance of Unanticipated Takings' issued
under the executive order. This rule does not impose an information
collection burden under the provisions of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective July 18, 2001.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by August 17, 2001. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Particulate matter, Reporting and recordkeeping
requirements.
Dated: June 6, 2001.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.
40 CFR part 52, of chapter I, title 40 is amended as follows:
PART 52--[AMENDED]
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart TT--Utah
2. Section 52.2322 is added to read as follows:
Sec. 52.2322 Extensions.
* * * * *
(a) The Administrator, by authority delegated under section 188(d)
of the Clean Air Act, as amended in 1990, extends for one year (until
December 31, 1995) the attainment date for the Salt Lake County
PM10 nonattainment area. The Administrator, by authority
delegated under section 188(d) of the Clean Air Act, as amended in
1990, extends for two years (until December 31, 1996) the attainment
date for the Utah County PM10 nonattainment area.
(b) [Reserved]
[FR Doc. 01-15031 Filed 6-15-01; 8:45 am]
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