2017-18878. Attainment Date Extensions for the Logan, Utah-Idaho 2006 24-Hour Fine Particulate Matter Nonattainment Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is granting two one-year extensions to the Moderate attainment date for the 2006 24-hour fine particulate matter (PM_2.5) Logan, Utah (UT)-Idaho (ID) nonattainment area. This action is based on the EPA's evaluation of air quality monitoring data and extension requests submitted by the State of Utah on May 2, 2017, and the State of Idaho on December 15, 2015, February 26, 2016, and April 25, 2017. The EPA is extending the Moderate attainment date from December 31, 2015 to December 31, 2017, in accordance with section 188(d) of the Clean Air Act (CAA).

DATES:

This final rule is effective on October 10, 2017.

ADDRESSES:

The EPA has established two dockets for this action under Docket ID No. EPA-R08-OAR-2017-0216 and EPA-R10-OAR-2017-0193. All documents in the dockets are listed on http://www.regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly-available docket materials are available at http://www.regulations.gov or in hard copy at the EPA Region 8, Office of Partnerships and Regulatory Assistance, Air Program, 1595 Wynkoop Street, Denver, Colorado, 80202-1129 or at the EPA Region 10, Office of Air and Waste, 1200 Sixth Avenue, Seattle, Washington, 98101. The EPA requests that if at all possible, you contact the individuals listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding federal holidays.

FOR FURTHER INFORMATION CONTACT:

Crystal Ostigaard, Air Program, EPA, Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, [phone], [e-mail], or Jeff Hunt, Air Planning Unit, Office of Air and Waste (OAW-150), EPA, Region 10, 1200 Sixth Ave, Suite 900, Seattle, Washington, 98101; [phone]; [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

In early June of this year, the EPA proposed to grant two one-year extensions to the Moderate attainment date for the 2006 24-hour PM_2.5 Logan, UT-ID nonattainment area. See 82 FR 25992 (June 6, 2017); 82 FR 26638 (June 8, 2017). Under CAA section 188(d), the EPA may grant a state's request to extend the attainment date for a Moderate area if: “(1) the state has complied with all requirements and commitments pertaining to the area in the applicable implementation plan; and (2) no more than one exceedance of the 24-hour [National Ambient Air Quality Standard (NAAQS)] level for PM₁₀ has occurred in the area in the year preceding the Extension Year, and the annual mean concentration for PM₁₀ in the area for such year is less than or equal to the standard level.” The statute provides the EPA with authority to issue only two one-year extensions for a single Moderate area.

On August 24, 2016, the EPA finalized the Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements (“PM_2.5 Implementation Rule”), 81 FR 58010, and that rule includes requirements applicable to Moderate area extension requests under CAA section 188(d). Under the regulations, the EPA may grant an extension if the agency determines that: (1) The state has complied with all requirements and commitments pertaining to the area in the applicable implementation plan; and (2) for an area designated nonattainment for the 24-hour PM_2.5 NAAQS for which the state seeks an attainment date extension, the 98th percentile 24-hour concentration at each monitor in that area for the calendar year that includes the applicable attainment date is less than or equal to the level of the applicable 24-hour standard (calculated according to the data analysis requirements in 40 CFR part 50, appendix N). See 40 CFR 51.1005(a)(1). The applicable implementation plan is defined as the plan submitted to meet Moderate area requirements. Id. § 51.1005(a)(2). The PM_2.5 Implementation Rule explains that, to meet the first criterion, a state needs to show that it has “submitted the necessary attainment plan for the area for the applicable PM_2.5 NAAQS and is implementing the control measures in the submission.” See 81 FR 58070 and 58073, August 24, 2016.

On June 6, 2017 (82 FR 25992), the EPA Region 8 Regional Administrator, and on June 8, 2017 (82 FR 26638), the EPA Region 10 Regional Administrator proposed to grant two one-year extensions to the Moderate area attainment date for the 2006 24-hour PM_2.5 Logan, UT-ID nonattainment area. The requests on which the EPA proposed action were submitted by the State of Utah on May 2, 2017, and the State of Idaho on December 15, 2015, February 26, 2016, and April 25, 2017. The EPA took comment on granting the two one-year extension requests that would extend the Moderate PM_2.5 attainment date from December 31, 2015 to December 31, 2017, for the Logan, UT-ID nonattainment area. For details of the EPA's reasons for proposing to grant the extensions, please see the June 6, 2017 and June 8, 2017 proposal notices.

II. Response to Comments

The EPA received two public comments on the proposed actions. One was submitted anonymously and the second was submitted by Western Resource Advocates (WRA).

Comment: The first comment briefly mentions that the State of Utah has had adequate time to address the air quality issue and the extension should not be approved because medical issues by excessive particulate matter are well substantiated.

Response: The EPA agrees that there are medical issues associated with PM_2.5 exposures. However, CAA section 188(d) and implementing regulations provide flexibility for states to address air quality issues in Moderate nonattainment areas if certain conditions are met. Under CAA section 188(d) and the PM_2.5 Implementation Rule, the EPA may grant a state's request to extend the attainment date for a Moderate area if: (1) The state has complied with all requirements and commitments pertaining to the area in the applicable implementation plan; and (2) for an area designated nonattainment for the 24-hour PM_2.5 NAAQS for which the state seeks an attainment date extension, the 98th percentile 24-hour concentration at each monitor in that area for the calendar year that includes the applicable attainment date is less than or equal to the level of the applicable 24-hour standard (calculated according to the data analysis requirement in 40 CFR part 50, appendix N). 40 CFR 51.1005(a)(1). The PM_2.5 Implementation Rule explains that, to meet the first criterion, a state needs to show that it has “submitted the necessary attainment plan for the area for the applicable PM_2.5 NAAQS and is implementing the control measures in the submission.” See 81 FR 58070-58073, August 24, 2016. The applicable implementation plan is defined as the plan submitted to meet Moderate area requirements for the NAAQS at issue. Id. § 51.1005(a)(2). The EPA cannot issue more than two one-year extensions for a single Moderate area.

As discussed in the proposed approval of the extension requests, and in the response to the comment from WRA below, the Logan, UT-ID nonattainment area has met the CAA section 188(d) requirements for granting the two one-year extensions. Accordingly, the EPA is finalizing approval of the two one-year extension requests to the Moderate area attainment date as proposed.

Comment: The second comment, sent by WRA, asserts that the State of Utah has not complied with all requirements and commitments pertaining to the area in the applicable implementation plan. Specifically, according to WRA, the State of Utah has not met the reasonable further progress and quantitative milestones requirements of the Moderate State Implementation Plan (SIP). The commenter states that the State of Utah's Logan, UT-ID PM_2.5 SIP does not establish whether the emission reductions have been achieved on a linear or stepwise basis in years 4.5 (June 2013) and 7.5 (June 2017). Additionally, WRA states that the Logan, UT-ID SIP contains no quantitative milestones; thus according to WRA, the State of Utah has failed to define and failed to demonstrate that any quantitative milestones have been achieved.

WRA further states that air quality monitoring data indicates that the extensions are inappropriate. The commenter provides air quality data representing the 98th percentile values for the Logan PM_2.5 air quality monitors from 2010 to 2016, and additional information regarding preliminary 2017 values.^[1] Additionally, the commenter provides the specific three-year design values from 2010 to 2015 at the Logan monitors.^[2] Referring to the 98th percentiles and design values, the commenter states that the monitoring data shows high variability and fails to reveal any correlation between emission reductions and better air quality. The commenter concludes that the Logan, UT-ID nonattainment area has not attained the 2006 24-hour PM_2.5 NAAQS and should be reclassified to a “Serious Area.”

Response: The EPA disagrees with the commenter's interpretation of the requirements found in CAA section 188(d) and the PM_2.5 Implementation Rule. The relevant criteria for granting an extension for a Moderate nonattainment area are whether (1) the state has complied with all requirements and commitments pertaining to the area in the applicable state plan; and (2) the 98th percentile 24-hour concentration for the attainment year is less than or equal to the level of the applicable 24-hour standard.^[3] In requesting an extension, the State of Utah submitted a letter on May 2, 2017, stating that it has complied with all requirements and commitments in the state plan and that the 98th percentile 24-hour concentration for the applicable year is below the standard.

Regarding the first criterion for granting an attainment date extension under CAA Section 188(d)(1), the preamble of the PM_2.5 Implementation Rule notes that CAA section 188(d) “does not explicitly require that the state comply with all requirements pertaining to the area in the CAA, but merely requires that the state comply with all requirements in the applicable SIP.” ^[4] In other words, so long as the state has submitted the necessary attainment plan for the area for the applicable PM_2.5 NAAQS and is implementing the submitted plan, the fact that the EPA has not yet acted on such submission to make it an approved part of the applicable SIP should not preclude the state from obtaining an extension of the attainment date under CAA section 188(d)(1). Specifically, in order to satisfy the first criterion, a state would have to demonstrate that control measures included in the plan submission as reasonably available control measures (RACM), reasonably available control technology (RACT), and additional reasonable measures for sources in the area have been implemented.^[5]

The regulatory requirements for extensions of the Moderate area attainment date that the EPA promulgated in the PM_2.5 Implementation Rule are consistent with the CAA. Under 40 CFR. 51.1005(a)(1)(i) and (a)(2), the state must have complied with all requirements and commitments in the applicable implementation plan, which is defined as the Moderate area plan submitted to meet the requirements of 40 CFR 51.1003(a). Thus, the EPA has, by rule, interpreted section 188(d)(1) to require the state to have complied with the requirements to implement RACM, RACT, and additional reasonable measures that were submitted in the Moderate area plan.^[6] To the extent the comment suggests the EPA must first approve the plan submission before a Moderate area extension may be granted, that issue was addressed in the implementation rule and the time to comment has passed to challenge the EPA's regulatory interpretation of the statute. See CAA section 307(b)(1).

The EPA has acted on certain aspects of the State of Utah's SIP in separate actions, as described in the proposed action to grant the two one-year attainment date extensions.^[7] Moreover, the EPA's evaluation as to whether the Moderate area plan has met all CAA requirements, including those for reasonable further progress and quantitative milestones, will be addressed in a separate action, which as noted above is a different determination than whether the State of Utah has complied with the requirements and commitments in the submitted Moderate area plan. As discussed in the proposal, the State of Utah submitted the necessary attainment plan for the area, the plan contains control measures identified as RACM and RACT, and additional reasonable measures for sources in the area and the State is implementing those control measures.^[8] The comment does not dispute these facts. Thus, the Logan, UT-ID nonattainment area has met the SIP submission criterion found in CAA section 188(d)(1).

For the second criterion in CAA Section 188(d)(2), the EPA interprets the requirement to demonstrate that the area had “no more than one exceedance” of the 24-hour PM_2.5 NAAQS to mean that the state must simply demonstrate that the area had “clean data” in the year preceding the extension year.^[9] Thus, a state seeking an attainment date extension for a Moderate nonattainment area for a 24-hour PM_2.5 NAAQS would be required to demonstrate that the area had clean data with respect to the statistical form of that particular standard (i.e., for the 2006 PM_2.5 NAAQS, the 98th percentile value did not exceed 35 micrograms per cubic meter (μg/m^[3] )) in the calendar year prior to the applicable attainment date for the area.^[10]

As noted in the proposal,^[11] the years that need to be reviewed for granting the two one-year attainment date extension requests are 2015 for the first extension request and 2016 for the second extension request. To demonstrate that the Logan, UT-ID nonattainment area had clean data for the 2006 PM_2.5 NAAQS, the 98th percentile values may not exceed 35 μg/m³. The 98th percentile value at the Logan monitor (Utah) was 29.0 μg/m³ in 2015 and at the Smithfield monitor (Utah) was 34.4 μg/m³ in 2016. Additionally, the 98th percentile concentrations at the Franklin, Idaho monitor were 18.8 μg/m³ in 2015 and 33.3 μg/m³ in 2016. Thus, the area met the second criterion for granting the two one-year extensions found in CAA section 188(d)(2) as interpreted by the PM_2.5 Implementation Rule.

The comment does not dispute that the area has met the criterion set forth in 40 CFR 51.1005(a)(1)(ii). Instead, the comment cites other monitoring data from previous years. Again, the EPA established its interpretation in the PM_2.5 Implementation Rule of what monitoring data is relevant for CAA section 188(d)(2). Notwithstanding that fact, WRA appears to believe that monitoring data from the years before 2015 and 2016 must be considered and argues that it is not reasonable to ignore such data. As with the comments on the first extension criterion, the commenter appears to take issue with the EPA's interpretations of the CAA as set forth in the implementation rule; however, the time has passed to challenge the implementation rule. The EPA evaluated the extension request consistent with the PM_2.5 Implementation Rule and we decline to adopt the commenter's interpretation of the statute.

To the extent the comment also argues that the EPA should deny the extension requests in our discretion, we decline to do so. As explained in our proposal and restated above, we have reviewed the requests from the states and accompanying data, and we find that they support granting two one-year extensions of the attainment date for this area. Thus, we do not agree that the EPA must necessarily consider all aspects of air quality (such as the other data the comment presents) in addition to our evaluation of the extension year air quality data under the second criterion. We also do not agree that the EPA must necessarily consider the concerns the comment raises regarding reasonable further progress and quantitative milestones in addition to our evaluation under the first criterion of the state's compliance with commitments and requirements in the submitted Moderate area plan.

However, even if the EPA were to consider the other information presented in the comment, we would still grant the extension requests. First, we note that Utah's submitted Moderate area plan does contain reasonable further progress and quantitative milestone sections.^[12] We also disagree that the plan does not attempt to show a correlation between emission reductions and air quality improvement: that is precisely what the attainment demonstration does. In remainder, the comment argues that these elements of the plan do not meet all Moderate area requirements, but as explained above that will be determined in a separate action.

If we were to consider the other air quality data presented by the comment, we would note that, as the comment states, there is variability from year to year.^[13] In such a circumstance, granting the extension request seems entirely consistent with the purpose of section 188(d): A state may have met all of its commitments and requirements in the submitted Moderate area plan, but due to variability—such as poor air quality in a single year prior to the extension year (in this case 2013)—the area fails to attain by the attainment date. In such a circumstance, section 188(d) provides a means for dealing with this variability.

III. EPA's Final Action

In response to requests from the State of Utah on May 2, 2017, and from the Idaho Department of Environmental Quality (IDEQ) on December 15, 2015, February 26, 2016, and April 25, 2017, the EPA is granting two one-year attainment date extensions to the Moderate attainment date for the 2006 24-hour PM_2.5 NAAQS for the Logan, UT-ID nonattainment area. This final action extends the Moderate area attainment date for the Logan, UT-ID nonattainment area from December 31, 2015 to December 31, 2017. This final action to extend the Moderate attainment date for this nonattainment area is based on both states' compliance with the requirements for the applicable SIPs for the area and on the 2015 and 2016 PM_2.5 98th percentile data from the Logan (Utah), Smithfield (Utah), and Franklin (Idaho) monitoring sites in the Logan, UT-ID nonattainment area. Consistent with CAA section 188(d) and 40 CFR 51.1005(a), the nonattainment area will remain a Moderate PM_2.5 nonattainment area, with a Moderate area attainment date of December 31, 2017. Additionally, the states will not have to submit the additional requirements that apply to Serious PM_2.5 nonattainment areas unless the area fails to attain the standard by the December 31, 2017 Moderate area attainment date and the area is reclassified to a Serious PM_2.5 nonattainment area.

This action is not a redesignation to attainment under CAA section 107(d)(3)(E). The State of Utah and the State of Idaho are not currently attaining the PM_2.5 NAAQS in the nonattainment area and have not submitted maintenance plans as required under section 175(A) of the CAA or met the other statutory requirements for redesignation to attainment. The designation status for the area in 40 CFR part 81 will remain as a Moderate nonattainment area until such time as the State of Utah and the State of Idaho meet the CAA requirements for redesignation to attainment, or the area is reclassified to Serious.

IV. Statutory and Executive Order Reviews

Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/​lawsregulations/​laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

This action is not a significant regulatory action and therefore is not subject to review by the Office of Management and Budget (OMB). This final action merely approves a state request as meeting federal requirements and imposes no new requirements.

B. Paperwork Reduction Act (PRA)

This action does not impose any additional information collection burden under the provisions of the PRA, 44 U.S.C. 3501 et seq. This action merely approves a state request for an attainment date extension, and this action does not impose additional requirements beyond those imposed by state law.

C. Regulatory Flexibility Act (RFA)

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law. Approval of a state's request for an attainment date extension does not create any new requirements and does not directly regulate any entities.

D. Unfunded Mandates Reform Act (UMRA)

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, will result from this action.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Pursuant to the CAA, this action merely approves a state request for an attainment date extension.

F. Executive Order 13175: Coordination With Indian Tribal Governments

This action does not have tribal implications, as specified in Executive Order 13175. No tribal areas are located in the nonattainment area that will be receiving an attainment date extension. The CAA and the Tribal Authority Rule establish the relationship of the federal government and tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe any environmental health or safety risks addressed by this action present a disproportionate risk to children. This action merely approves a state request for an attainment date extension and it does not impose additional requirements beyond those imposed by state law.

H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

This rulemaking does not involve technical standards. This action merely approves a state request for an attainment date extension.

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Population

The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). This action approves a state request for an attainment date extension based on the state's compliance with requirements and commitments in its plan and recent air quality monitoring data that meets requirements for an extension.

K. Congressional Review Act (CRA)

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. This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. 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).

L. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 7, 2017. 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
• Ammonia
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur dioxide
• Volatile organic compounds

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

Dated: August 21, 2017.

Debra H. Thomas,

Acting Regional Administrator, Region 8.

Dated: August 22, 2017.

Michelle L. Pirzadeh,

Acting Regional Administrator, Region 10.

Footnotes

1.  WRA notes that between 2010 and 2016, the 98th percentile PM_2.5 concentrations at the Logan monitors have been: 42.4 micrograms per cubic meter (μg/m3. ) in 2010, 42.3 μg/m3. in 2011, 27.1 μg/m3. in 2012, 68.3 μg/m3. in 2013, 41.1 μg/m3. in 2014, 32.7 μg/m3. in 2015, and 34.4 μg/m3. in 2016. In 2017, WRA states that the 7th highest 24-hour PM_2.5 concentration is 39.9 μg/m3. and the 8th highest is 34.4 μg/m3. , with a high concentration of 75.7 μg/m3. .

2.  WRA notes that between 2010 and 2015, the design values (three-year average of the 98th percentile) have been: 37.3 μg/m3. in 2010-2012, 45.8 μg/m3. in 2011-2013, 45 μg/m3. in 2012-2014, 45.6 μg/m3. in 2013-2015, and 34.5 μg/m3. in 2014-2015.

3.  PM_2.5 Implementation Rule, Section 51.1005(a)(1)(i)-(ii).

4.  81 FR 58070, August 24, 2016. This interpretation as applied to CAA section 188(e) for Serious area attainment date extensions was upheld by the Ninth Circuit in Vigil v. Leavitt, 366 F.3d 1025, amended at 381 F.3d 826 (9th Cir. 2004).

5.  81 FR 58070, August 24, 2016.

6.  The comment appears to interpret the language in the preamble stating that the State must have “complied with all requirements and commitments pertaining to the area in the applicable implementation plan” in a manner that appears inconsistent with the EPA's implementation rule. The regulatory language makes clear that the State must comply with the requirements and commitments in the Moderate area plan that was submitted to the EPA for the relevant NAAQS in the area at issue. The preamble language clarifies that the relevant requirements and commitments are those that apply to the nonattainment area for which the extension has been requested and for the relevant NAAQS. Thus, if the State failed to meet a requirement or commitment in the applicable implementation plan for some other nonattainment area or failed to meet a requirement applicable to a different NAAQS (e.g. ozone), that would not bar the State from getting an extension for the nonattainment area and NAAQS at issue.

7.  82 FR 25992 (June 6, 2017) and 82 FR 26638 (June 8, 2017). The State of Utah submitted its Moderate PM_2.5 attainment SIP on December 22, 2014 and the State of Idaho submitted its Moderate PM_2.5 attainment SIP on December 14, 2012 and supplement on December 24, 2014, respectively.

8.  82 FR 25994/5, June 6, 2017; 82 FR 26638, June 8, 2017.

9.  81 FR 58071, August 24, 2016.

10.  81 FR 58010, 58070-58071, August 24, 2016.

11.  82 FR 25992 (June 6, 2017) and 82 FR 26638 (June 8, 2017).

12.  The Logan, UT-ID Moderate PM_2.5 SIP can be found within the docket, EPA-R08-OAR-2017-0216. The entire submittal is entitled “December 16, 2014 State of Utah Moderate PM_2.5 SIP Submittal,” and the Logan section, “Utah SIP Control Measures for Area and Point Sources, Fine Particulate Matter, PM_2.5 SIP for the Logan, UT-ID Nonattainment Area, Section IX. Part A.23” starts on pdf page number 546. The Logan, UT-ID Moderate PM_2.5 SIP contains reasonable further progress analysis and quantitative milestones in Chapter 8.

13.  In addition, the 98th percentile value for 2015 for Logan appears to be incorrect in the comment. It should be 29.0 µg/m3. instead of 32.7 µg/m3. .