Clean Data Determination; Provo, Utah 2006 Fine Particulate Matter Standards Nonattainment Area

AGENCY:

Environmental Protection Agency.

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) Provo, Utah (UT) nonattainment area (NAA). The proposed determination is based upon quality-assured, quality-controlled, and certified ambient air monitoring data for the period 2015-2017, 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 Provo, 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 March 14, 2019.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R08-OAR-2018-0353 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 Program, U.S. EPA, Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6602, ostigaard.crystal@epa.gov.

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 Provo, UT NAA. 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 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. After the court's decision and the EPA's June 2, 2014 rule, on December 16, 2014 the Utah Division of Air Quality (UDAQ) withdrew all prior Provo, 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 final 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 Provo, 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 179(a) and for a Federal Implementation Plan (FIP) under 110(c) are not in effect for the Provo, UT NAA.

Finally, on May 10, 2017 (82 FR 21711), the EPA determined that the Provo, 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 Provo, 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.

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 UDAQ 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. 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. 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 approval for the purposes of strengthening 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. 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.

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 UDAQ is the governmental agency with the authority and responsibilities under the State's laws for collecting ambient air quality data for the Provo, 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 Provo, UT NAA, the EPA found that UDAQ's annual network plans met the applicable requirements under 40 CFR part 58 for the relevant period, 2015-2017, with the exception (discussed below) of UDAQ's 2015 network plan. The UDAQ operated three PM_2.5 State and Local Air Monitoring Station (SLAMS) monitors during the 2015-2017 period within the Provo, UT PM_2.5 NAA: North Provo, Lindon and Spanish Fork.

B. Provo, UT Monitoring During 2015

UDAQ submitted the 2015 AMNP and 5-Year Network Assessment in June 2015. UDAQ's submissions were not reviewed and acted on by Region 8 because the Region was conducting a Technical Support Audit (TSA) of UDAQ's ambient air monitoring program at the time. The TSA was completed in August 2015 and found major and minor/observation issues with the monitoring program. The objective of a TSA is to review a monitoring program's quality assurance (QA) system, in this case the reporting of valid data to the EPA's AQS database. See 40 CFR part 58, appendices A through E. A major finding may indicate that invalid data have been loaded in AQS or that future operations may result in the collection of invalid data. A minor/observation finding will not necessarily lead to data loss or invalidation, but warrants investigation, appropriate follow-up, and audit response. Additional details pertaining to the major and minor findings can be found in the August 2015 TSA, available in the docket.

Due to these monitoring issues, the EPA did not approve UDAQ's 2015 AMNP and a large number of samples from the filter-based Federal Reference Method (FRM) monitors in the Provo, UT NAA were invalidated. The EPA worked with UDAQ to correct the deficiencies found in the August 2015 TSA and after their review of the PM_2.5 data for 2015, UDAQ removed the invalid samples for the Provo, UT FRM monitors and left the valid samples in the AQS database. However, some continuous sampler data from the Provo, UT co-located Federal Equivalent Method (FEM) monitors were determined to have sufficient QA to meet NAAQS comparison requirements. Data from these co-located monitors were used to fill in some of the missing days in 2015, adding to the total number of samples that can be used to determine a 98th percentile value for that year and providing for a complete 2015 monitoring year. Utah used the methodology found in 40 CFR part 50, appendix N 3.0(d)(2) and 3.0(e) to substitute FEM data for the days without FRM data.

The EPA has reviewed the Provo, UT monitoring sites and, using the criteria found in 40 CFR part 58, appendix A, has determined that the QA for the continuous FEM monitors is acceptable. We therefore agree that the data from the FEM monitors can be substituted for the days for which the FRM monitor data was invalid. The data from the FEM monitor at the Spanish Fork monitoring site was used to substitute for invalid FRM data; however, 2015 was still incomplete. Further discussion on the Spanish Fork monitoring site can be found below.

On November 29, 2016, UDAQ submitted a letter that contained the Air Monitoring Program (AMP) 430, AMP 450, AMP 256, and AMP 450NC reports required to certify the 2015 air quality data in Utah. UDAQ completed the data certification process in AQS and with the November 29, 2016 letter, certified that the 2015 air quality data is accurate. Additional information related to these monitors can be found in the November 23, 2016 memoranda found in the docket for this proposed action. Additional details and evaluation of the 2015-2017 AMNPs can be found in our notice proposing to issue a CDD for the Logan, UT-ID Moderate PM_2.5 nonattainment area. See 83 FR 33886 (July 18, 2018). The Logan, UT-ID CDD was subsequently finalized on October 19, 2018 (83 FR 52983).

C. Evaluation of Current Attainment

The EPA's evaluation of whether the Provo, 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 Provo, 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 North Provo (AQS site 49-049-0002), Lindon (AQS site 49-049-4001), and Spanish Fork (AQS site 49-049-5010) monitoring sites consistent with the requirements contained in 40 CFR part 50, as recorded in the EPA AQS database for the Provo, UT NAA. As shown in Table 1 below, the North Provo monitor in the Provo, UT NAA has collected complete data since 2011 and is trending downward overall. The Lindon monitor had incomplete data in 2012; however, all other years have been complete and the monitor shows a downward trend too.

The Spanish Fork monitor had incomplete data during the first quarter of 2015 and 2016 and is not eligible for the high value data substitution test in 40 CFR part 50, appendix N. However, based upon the analysis detailed in the monitoring memorandum located in the docket for today's action, the EPA has preliminarily determined that the upper end of the probable range for the 2015-2017 design value at the Spanish Fork monitor (30 µg/m³) is well below the NAAQS. As a result, the EPA has preliminarily concluded that the Provo, UT NAA continues to meet the 2006 24-hour PM_2.5 NAAQS of 35 µg/m³ for the period 2015-2017, 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 Provo, UT NAA, the EPA will withdraw the CDD.

D. Clean Data Determination for the Provo, UT Nonattainment Area

Based on the monitoring data for the period 2015-2017, the EPA is proposing to determine that the area has clean data for demonstrating 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, 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, NNSR requirements are discussed in the PM_2.5 SIP Requirements Rule and required by CAA sections 110(a)(2)(C); 172(c)(5); 173; 189(a); and 189(e), as not being 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. 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 Provo, 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 Provo, Utah (UT) NAA based on the area's current attainment of the standard. Pursuant to 40 CFR 51.1015(a) and (b), the EPA proposes to determine that the obligation to submit any remaining attainment-related SIP revisions arising from classification of the Provo, 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 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 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
• Nitrogen dioxide
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

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