Improvements Needed to Ensure Dust Storms, Wildfires Do Not Cause Clean Air Violations
Note: EPA has extended the public comment deadline to Feb. 3, 2016.
The U.S. Environmental Protection Agency (EPA) recently proposed changes to its “Exceptional Events Rule” (EER) that allows the agency to exclude certain air-quality monitoring data – associated with uncontrollable or unpreventable emissions – when determining whether or not an area violates a National Ambient Air Quality Standard (NAAQS). EPA also released a draft version of guidance for states seeking to demonstrate that a wildfire event affected monitored ozone concentrations. This package of documents could be critical for states looking for all possible options to help them attain EPA’s recently tightened ozone NAAQS. EPA will take comment on the proposed rule revisions and draft guidance through Jan. 19, and hold a Dec. 8 public hearing on the effort in Phoenix, AZ.
Under the current EER, promulgated in 2007, states may flag certain air monitoring readings as “exceptional” (e.g., those caused by wildfires, high wind dust storms or stratospheric ozone intrusion). If the state air agency demonstrates to EPA’s satisfaction that the “exception event” causes a specific air pollution concentration in excess of a NAAQS, EPA may exclude such data from NAAQS designations (nonattainment versus attainment) and related actions. AGC chapters and members in arid western states, who face significant air quality challenges brought on by natural events, report that EPA has not consistently applied its EER. Many of the concerns and criticism over the EER center around the lack of clarity on what a state should include in its demonstration package to support data exclusion, as well as delays in processing and approving exceptional event submissions.
According to EPA, the proposed EER revisions should reduce the burden on states to show that events qualify as “exceptional.” Under the proposed rule, EPA would clarify the “not reasonably controllable or preventable” criteria, as well as the analyses, content and organization of exceptional events demonstrations. The proposal also would reduce the number of criteria states must address in seeking to prove an exceptional event; namely, EPA would eliminate a current requirement that states show they would have complied with a NAAQS “but for” the exceptional event causing high levels of pollution, which states have complained is too difficult to prove.
The EER proposal is getting close attention in light of the agency's new 70-parts-per-billion standard for ground-level ozone – click here for AGC’s in-depth analysis of the new ozone rule and its impact on construction. EPA has said that the exceptional events rule could be a tool for addressing high levels of background ozone not due to local human activity. Unveiling the new ozone standard last month, EPA officials noted that they were updating the exceptional events rule "to simplify and expedite the process for air agency development and EPA review" of individual exemption applications.
EPA also tightened the fine particulate matter (PM2.5) NAAQS at the end of 2012 and, against AGC’s comments and recommendations, added a new requirement for states to monitor PM2.5 levels near heavily traveled roads in large urban areas. That rulemaking prompted EPA to issue Interim Exceptional Events Implementation Guidance in 2013. AGC commented on the draft version, stressing that formal revisions to the EER (rather than more guidance) were needed to provide regulatory certainty.
EPA intends to finalize the EER revisions before Oct. 1, 2016, which is the date by which states are required to submit their initial designation recommendations for the 2015 ozone NAAQS. States face strict deadlines to make attainment determinations that could hinge on whether or not data affected by exceptional events must be included. A nonattainment status can have serious repercussions for construction in the area(s) so designated – including potential restriction on the use and operation of equipment, the loss of federal highway funding and the loss of economic development opportunities. Click here for a related AGC article that explains more.
EPA also has policies in place to provide regulatory relief for areas experiencing “rural” pollutant transport that have no sources of their own to regulate, and also for areas experiencing high pollution from international sources. EPA said in an Oct. 1 policy memo, issued alongside the final revised ozone standard, that it will issue a white paper and hold a workshop to evaluate the need for further guidance or regulatory tools to address background ozone.
To comment on the proposed rule (Docket ID Number EPA-HQ-OAR-2013- 0572) and/or comment on the draft guidance (Docket ID Number EPA-HQOAR-2015-0229), click on the links provided or visit www.regulations.gov and enter the corresponding Docket number. EPA has additional information and tools on the treatment of data related to exceptional events on its website – click here.
If you have further questions, please contact Leah Pilconis, senior environmental advisor to AGC, at pilconisl@agc.org.