2019-11702. Clean Data Determination; Salt Lake City, Utah 2006 Fine Particulate Matter Standards Nonattainment Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to make a clean data determination (CDD) for the 2006 24-hour fine particulate matter (PM_2.5) Salt Lake City, Utah, (UT) nonattainment area (NAA). The proposed determination is based upon quality-assured, quality-controlled, and certified ambient air monitoring data for the period 2016-2018, available in the EPA's Air Quality System (AQS) database, showing the area has monitored attainment of the 2006 24-hour PM_2.5 National Ambient Air Quality Standards (NAAQS). Based on our proposed determination that the Salt Lake City, UT NAA is currently attaining the 24-hour PM_2.5 NAAQS, the EPA is also proposing to determine that the obligation for Utah to make submissions to meet certain Clean Air Act (CAA or the Act) requirements related to attainment of the NAAQS for this area is not applicable for as long as the area continues to attain the NAAQS.

DATES:

Comments must be received on or before July 5, 2019.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R08-OAR-2019-0081 at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from www.regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information the disclosure of which is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/​dockets/​commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT:

Crystal Ostigaard, Air and Radiation Division, U.S. EPA, Region 8, Mailcode 8ARD-QP, 1595 Wynkoop Street, Denver, Colorado 80202-1129, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document, wherever “we”, “us” or “our” is used, it is intended to refer to the EPA.

I. Background

On October 17, 2006 (71 FR 61144), the EPA revised the level of the 24-hour PM_2.5 NAAQS, lowering the primary and secondary standards from the 1997 standard of 65 micrograms per cubic meter (µg/m³) to 35 µg/m³. The EPA retained the form of the 1997 24-hour standard, that is, the 98th percentile of the annual 24-hour concentrations at each population-oriented monitor within an area, averaged over 3 years. See 71 FR 61164-5 (October 17, 2006).

On November 13, 2009 (74 FR 58688), the EPA designated a number of areas as nonattainment for the 24-hour PM_2.5 NAAQS of 35 µg/m³, including the Salt Lake City, UT NAA. The Salt Lake City, UT NAA includes Box Elder County (partial), Davis County, Salt Lake County, Tooele County (partial), and Weber County (partial). The EPA originally designated these areas under the general provisions of CAA title I, part D, subpart 1 (“subpart 1”), under which attainment plans must provide for the attainment of a specific NAAQS (in this case, the 2006 PM_2.5 standards) as expeditiously as practicable, but no later than 5 years from the date the areas were designated nonattainment.

Subsequently, on January 4, 2013, the U.S. Court of Appeals for the District of Columbia Circuit held in NRDC v. EPA ^[1] that the EPA should have implemented the 2006 24-hour PM_2.5 standard based on both the general NAA requirements in subpart 1 and the PM-specific requirements of CAA title I, part D, subpart 4 (“subpart 4”). In response to the Court's decision in NRDC v. EPA, on June 2, 2014 (79 FR 31566), the EPA finalized the “Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particulate (PM_2.5) NAAQS and 2006 PM_2.5 NAAQS.” This rule classified the areas that were designated in 2009 as nonattainment to Moderate and set the attainment SIP submittal due date for those areas at December 31, 2014. Additionally, this rule established the Moderate area attainment date of December 31, 2015. After the court's decision and the EPA's June 2, 2014 rule, on December 16, 2014, Utah withdrew all prior Salt Lake City, UT PM_2.5 SIP submissions and submitted a new SIP to address both the general requirements of subpart 1 and the PM-specific requirements of subpart 4 for Moderate areas.

On August 24, 2016, the EPA finalized the Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements (“PM_2.5 SIP Requirements Rule”), 81 FR 58010, which addressed the January 4, 2013 court ruling. The PM_2.5 SIP Requirements Rule provides the EPA's interpretation of the requirements applicable to PM_2.5 NAAs and explains how air agencies can meet the statutory SIP requirements that apply under subparts 1 and 4 to areas designated nonattainment for any PM_2.5 NAAQS.

The EPA has previously acted on portions of Utah's Moderate area attainment plan for the Salt Lake City, UT NAA. Specifically, we approved certain area source rules and related reasonably available control measure (RACM) analyses on February 25, 2016 (81 FR 9343), October 19, 2016 (81 FR 71988) and September 14, 2017 (82 FR 43205). We have not disapproved any portions of the plan; as a result, the clocks for sanctions under section 179(a) and for a Federal Implementation Plan (FIP) under section 110(c) are not in effect for the Salt Lake City, UT NAA.

Finally, on May 10, 2017 (82 FR 21711), the EPA determined that the Salt Lake City, UT NAA failed to attain the 2006 24-hour PM_2.5 NAAQS by the Moderate attainment date of December 31, 2015. With this determination, the Salt Lake City, UT NAA was reclassified as a “Serious” area for the 2006 24-hour PM_2.5 NAAQS, with a new attainment date of December 31, 2019. This reclassification triggered an obligation for Utah to submit a new, Serious area attainment plan consisting of several elements, including a control strategy and demonstration of attainment by the new attainment date. See 40 CFR 51.1003(b)(1).

II. Clean Data Determination

Over the past two decades, the EPA has consistently applied its “Clean Data Policy” interpretation to attainment related provisions of Part D of the CAA. The EPA codified the Clean Data Policy in the PM_2.5 SIP Requirements Rule (40 CFR 51.1015(a)) for the implementation of current and future PM_2.5 NAAQS. See 81 FR 58010, 58161 (August 24, 2016). For a complete discussion of the Clean Data Policy's history and the EPA's longstanding interpretation under the CAA, please refer to the PM_2.5 SIP Requirements Rule.^[2]

As codified at 40 CFR 51.1015(a) in the PM_2.5 SIP Requirements Rule, upon a determination by the EPA that a Moderate PM_2.5 NAA has attained the PM_2.5 NAAQS, the requirements for the State to submit an attainment demonstration, provisions demonstrating timely implementation of RACM (including reasonably available control technology (RACT)), a reasonable further progress (RFP) plan, quantitative milestones and quantitative milestone reports, and contingency measures shall be suspended. Additionally, under 40 CFR 51.1015(b), upon determination by the EPA that a Serious PM_2.5 NAA has attained the PM_2.5 NAAQS, the requirements for the State to submit an attainment demonstration, RFP, quantitative milestones and quantitative milestone reports, and contingency measures for the area will be suspended. However, the EPA's longstanding policy for the best available control measure (BACM)/best available control technology (BACT) requirement of CAA section 189(b)(1)(B) is that the requirement is independent of attainment. Thus, a CDD would not suspend the obligation for Utah to submit any applicable outstanding BACM/BACT requirements or other requirements that are independent of attainment.

By extension, the requirement to submit a motor vehicle emission budget (MVEB) for the attainment year (both for a Moderate and Serious NAA) for the purposes of transportation conformity is also suspended. A MVEB is that portion of the total allowable emissions defined in the submitted or approved control strategy implementation plan revision or maintenance plan for a certain date for the purpose of meeting RFP milestones or demonstrating attainment or maintenance of the NAAQS, for any criteria pollutant or its precursors, allocated to highway and transit vehicle use and emissions.^[3] For the purposes of the transportation conformity regulations, the control strategy implementation plan revision is the implementation plan which contains specific strategies for controlling the emissions of and reducing ambient levels of pollutants in order to satisfy CAA requirements for demonstrations of RFP and attainment.^[4] Given that MVEBs are required to support the RFP and attainment demonstration requirements in the attainment plan, suspension of the RFP and attainment demonstration requirements through a CDD also suspends the requirement to submit MVEBs for the attainment and RFP years. The suspension of planning requirements pursuant to 40 CFR 51.1015 does not preclude the State from submitting suspended elements of its Moderate and Serious area attainment plans for the EPA's approval in order to strengthen the State's SIP.

The planning elements under subpart 1 and subpart 4 generally include RFP, attainment demonstrations, RACM/RACT, NAA contingency measures, and other state planning requirements related to attaining the NAAQS.^[5] The suspension of the obligation to submit such requirements applies regardless of when the plan submissions are due. The CDD does not suspend CAA requirements that are independent of helping the area achieve attainment, such as the requirements to submit an emissions inventory, nonattainment new source review (NNSR), and BACM/BACT requirements. The determination of attainment is not equivalent to a redesignation, and the State must still meet the statutory requirements for redesignation in order to be redesignated to attainment. See CAA section 107(d)(3)(E).

In accordance with 40 CFR 51.1015(a) and (b), the CDD suspends the aforementioned SIP obligations until such time as the area is redesignated to attainment, after which such requirements are permanently discharged; or the EPA determines that the area has re-violated the PM_2.5 NAAQS, at which time the State shall submit such attainment plan elements for the Moderate and Serious NAA plans by a future date to be determined by the EPA and announced through publication in the Federal Register at the time the EPA determines the area is violating the PM_2.5 NAAQS.

A. Monitoring Network Considerations

Determining whether an area has attained the NAAQS is based on monitored air quality data; thus, the validity of a determination of attainment depends in part on whether the monitoring network adequately measures ambient PM_2.5 levels in the NAA. The Utah Department of Air Quality (UDAQ) is the governmental agency with the authority and responsibilities under the State's laws for collecting ambient air quality data for the Salt Lake City, UT NAA and submitting the data to AQS. UDAQ annually certifies that the data they submit to AQS are quality assured. UDAQ also submits an annual monitoring network plan (AMNP) to the EPA. These plans discuss the status of the air monitoring network, as required under 40 CFR part 58. With respect to PM_2.5 monitoring in the Salt Lake City, UT NAA, the EPA found that UDAQ's annual network plans met the applicable requirements under 40 CFR part 58 for the relevant period, 2016-2018. The UDAQ operated eight PM_2.5 State and Local Air Monitoring Station (SLAMS) monitors during the 2016-2018 period within the Salt Lake City, UT PM_2.5 NAA: Brigham City, Ogden 2, Bountiful, Magna, Rose Park, Hawthorn, Herrimam #3, and Erda.

B. Salt Lake City, UT Monitoring

On March 14, 2017, the EPA approved Utah's 2016 AMNP, and on April 20, 2017, UDAQ submitted a letter that contained the AMP 600 and AMP 450NC reports required to certify the 2016 air quality data in Utah. UDAQ completed the date certification process in AQS and with the April 20, 2017 letter, certified that the 2016 air quality data is accurate.

On October 27, 2017, the EPA approved Utah's 2017 AMNP, and on April 10, 2018, the UDAQ submitted a letter that contained the AMP 600 and AMP 450NC reports required to certify the 2017 air quality data in Utah. With the April 10, 2018 letter, UDAQ completed the data certification process in AQS and certified that the 2017 air quality data is accurate.

On March 20, 2019, the EPA approved Utah's 2018 AMNP, and on February 1, 2019, the UDAQ submitted a letter that contained the AMP 600 and AMP 450NC reports required to certify the 2018 air quality data in Utah. With the February 1, 2019 letter, UDAQ completed the data certification process in AQS and certified that the 2018 air quality data is accurate.

C. Evaluation of Current Attainment

The EPA's evaluation of whether the Salt Lake City, UT PM_2.5 NAA has attained the 2006 24-hour PM_2.5 NAAQS is based on our review of all valid monitoring data “produced by suitable monitors that are required to be submitted to AQS, or otherwise available to EPA ....” See Appendix N, 3.0(a). Based on our review, the PM_2.5 monitoring network for the Salt Lake City, UT NAA meets the requirements stated above and is therefore adequate for use in determining whether the area attained the 2006 24-hour PM_2.5 NAAQS.

The EPA reviewed the PM_2.5 ambient air monitoring data from the Brigham City (AQS site 49-003-0003), Ogden 2 (AQS site 49-057-0002), Bountiful (AQS site 49-011-0004), Magna (AQS site 49-035-1001), Rose Park (AQS site 49-035-3010), Hawthorn (AQS site 49-035-3006), Herrimam #3 (AQS site 49-035-3013), and Erda (AQS site 49-045-0004) monitoring sites consistent with the requirements contained in 40 CFR part 50, as recorded in the EPA AQS database for the Salt Lake City, UT NAA.

The CAA allows for the exclusion of air quality monitoring data from design value calculations when there are exceedances caused by events, such as wildfires or high wind events, that meet the criteria for an exceptional event identified in the EPA's implementing regulations, the Exceptional Events Rule at 40 CFR 50.1, 50.14, and 51.930. In 2017, emissions from fireworks and wildfires impacted PM_2.5 concentrations recorded at the Rose Park monitor within the Salt Lake City, UT NAA. For purposes of this proposed action, on November 21, 2017 and January 2, 2018, UDAQ submitted exceptional event demonstrations to request exclusion of 2017 data impacted by fireworks and wildfires. On February 2, 2019, UDAQ submitted supplemental information pertaining to the exceptional event package for data impacted by fireworks in 2017. The EPA evaluated UDAQ's exceptional event demonstrations for the flagged values of the 24-hour PM_2.5 listed in Table 1, at the Rose Park monitor in the Salt Lake City, UT NAA, with respect to the requirements of the EPA's Exceptional Events Rule (40 CFR 50.1, 50.14, and 50.930).

Table 1—24-Hour PM_2.5 Values at the Rose Park Monitoring Station, Concurred on by the EPA as Meeting the Exceptional Event Criteria

[µg/m³]

Date	24-hr PM2.5 concentration 49-035-3010
	FRM filter	Co-located filter	Continuous (primary monitor)
7/4/2017	37.8	41	40
9/6/2017	37.8	37.7	36.8

On May 23, 2019 and May 28, 2019, the EPA concurred with UDAQ's requests to exclude event-influenced data listed in Table 1 above, finding that the UDAQ demonstration met the Exceptional Event Rule criteria. As such, the event-influenced data have been removed from the data set used for regulatory purposes. For this proposed action, the EPA relies on the calculated values that exclude the event-influenced data (see Table 2 below). The EPA now proposes to take final regulatory action on UDAQ's request to exclude PM_2.5 data listed in Table 1, in regulatory decisions. For further information, refer to UDAQ's Exceptional Event demonstration packages and the EPA's concurrence and analyses located in the docket for this proposed action.

As shown in Table 2 below, Brigham City, Ogden 2, Bountiful, Rose Park and Hawthorn monitors in the Salt Lake City, UT NAA have collected complete data since 2012 and are trending downward overall. The Magna monitor was trending downward from 2012; however, the monitor was discontinued in 2018. The Erda monitor began collecting data in 2016 and has an attaining design value for 2016-2018. The Herrimam #3 monitor began collecting data in 2016; however, quarter 1 of 2018 is incomplete but is still showing attainment for 2016-2018.

The design value for the 2006 24-hour PM_2.5 NAAQS for the years 2016-2018 at the Rose Park monitor site was 35 µg/m³, which is equal to the standard of 35 µg/m³. See Table 2 below for the annual 98th percentiles and 3-year design value for the 2016-2018 monitoring period. As a result, the EPA has preliminarily concluded that the Salt Lake City, UT NAA continues to meet the 2006 24-hour PM_2.5 NAAQS of 35 µg/m³ for the period 2016-2018, the most recent 3-year period of certified data availability. Should there be a subsequent violation of the 2006 PM_2.5 standards in the Salt Lake City, UT NAA, the EPA will withdraw the CDD.

Table 2—Design Value Concentrations for the Salt Lake City, UT NAA for the 2006 24-Hour PM_2.5 NAAQS

[µg/m³]

Monitor site	Monitor ID	3-year design values
		2012-2014	2013-2015	2014-2016	2015-2017	2016-2018
Brigham City	49-003-0003	35	35	31	33	32
Ogden 2	49-057-0002	35	37	35	33	30
Bountiful	49-011-0004	38	40	33	30	29
Magna	49-035-1001	35	35	32	28	Discontinued
Rose Park	49-035-3010	43	44	41	37	35
Hawthorn	49-035-3006	41	42	37	34	33
Herrimam #3	49-035-3013	—	—	—	—	* 27
Erda	49-045-0004	—	—	—	—	26
* Q1 of 2018 is incomplete. See Utah Clean Data Determination of the 2006 24-Hour Fine Particulate Matter National Ambient Air Quality Standard for the Provo, Utah Nonattainment Area Memo found in the accompanying docket.

D. Clean Data Determination for the Salt Lake City, UT Nonattainment Area

Based on the monitoring data for the period 2016-2018, the EPA is proposing to determine that the area has demonstrated attainment of the 2006 24-hr PM_2.5 NAAQS. In accordance with 40 CFR 51.1015, a CDD can be made upon a determination by the EPA that a Moderate or Serious PM_2.5 NAA is attaining the PM_2.5 NAAQS. As provided in 40 CFR 51.1015, so long as this area continues to meet the standard, finalization of this determination suspends the requirements for this area to submit an attainment demonstration, associated RACM/RACT (for the Moderate NAA plan), RFP plan, contingency measures, and any other planning SIP requirements related to the attainment of the 2006 PM_2.5 NAAQS. For purposes of this NAAQS, the requirements to submit a projected attainment inventory as part of an attainment demonstration or RFP as well as a MVEB are also suspended by this determination.

As discussed in the PM_2.5 SIP Requirements Rule, the nonattainment base emissions inventory required by section 172(c)(3) is not suspended by this determination because the base inventory is a requirement independent of planning for an area's attainment. See 81 FR 58009 at 58028 and 58127-8 and 80 FR 15340 at 15441-2. Additionally, the PM_2.5 SIP Requirements Rule states that the NNSR requirement is required by CAA sections 110(a)(2)(C); 172(c)(5); 173; 189(a); and 189(e), and is not suspended by a CDD because this requirement is independent of the area's attainment planning. See 81 FR 58010 at 58107 and 58127. Furthermore, the BACM/BACT requirements found in CAA section 189(b)(1)(B) are not suspended with a CDD for a Serious NAA due to this requirement being independent of attainment. See 81 FR 58010 at 58128.

Under the proposed CDD, the planning requirements noted above (for both Moderate and Serious areas) shall be suspended, until such time as the area is redesignated to attainment, after which such requirements are permanently discharged. This proposed action, if finalized, will not constitute a redesignation to attainment under CAA section 107(d)(3)(E), because the State must have an approved maintenance plan for the area as required under section 175A of the CAA, and the EPA must determine that the area has met the other requirements for redesignation in order to be redesignated to attainment. Therefore, the designation status of the area will remain nonattainment for the 2006 PM_2.5 NAAQS until such time as the EPA determines that the area meets the CAA requirements for redesignation to attainment under CAA section 107(d)(3)(E).

It is possible, although not expected, that the Salt Lake City, UT area could violate the 24-hour PM_2.5 NAAQS before a maintenance plan is adopted, submitted, and approved, and the area is redesignated to attainment. Under 40 CFR 51.1015(a)(2) and (b)(2), if the EPA determines that the area has re-violated the 24-hour PM_2.5 NAAQS, the EPA will rescind the CDD and the State shall be required to submit the suspended attainment plan elements. Even so, submission of the suspended elements may be insufficient to eliminate future violations. Therefore, the issuance of a SIP call under section 110(k)(5) could be an appropriate response. This SIP call could require the State to submit, by a reasonable deadline not to exceed 18 months, a revised plan demonstrating expeditious attainment and complying with other requirements applicable to the area at the time of this finding. Under CAA section 172(d), the EPA may reasonably adjust the dates applicable to these requirements.

III. Proposed Action

The EPA is proposing to make a CDD for the 2006 24-hour PM_2.5 Salt Lake City, UT NAA based on the area's monitoring data for 2016-2018. Pursuant to 40 CFR 51.1015(a) and (b), the EPA proposes to determine that the obligation to submit attainment-related SIP revisions arising from classification of the Salt Lake City, UT area as a Moderate NAA and subsequent reclassification as a Serious NAA under subpart 4 of part D (of title I of the Act) for the 2006 24-hour PM_2.5 NAAQS is not applicable for so long as the area continues to attain the 2006 24-hour PM_2.5 NAAQS. However, the CDD does not suspend UDAQ's obligation to submit non-attainment-related requirements, which includes the base-year emission inventory, NNSR revisions, and BACM/BACT. This proposed action, if finalized, would not constitute a redesignation to attainment under CAA section 107(d)(3).

IV. Statutory and Executive Order Reviews

This action proposes to issue a determination of attainment based on air quality and to suspend certain federal requirements, and thus, would not impose additional requirements beyond those imposed by state law. For this reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed action does not apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Particulate matter
• Reporting and recordkeeping requirements

Authority: 42 U.S.C. 7401 et seq.

Dated: May 30, 2019.

Debra Thomas,

Acting Regional Administrator, Region 8.

Footnotes

1.  706 F.3d 428 (D.C. Cir. 2013).

2.  See Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements, 81 FR 58010, 58127 (August 24, 2016).

3.  40 CFR 93.101.

4.  40 CFR 93.101.

5.  PM_2.5 SIP Requirements Rule (81 FR 58010).