[Federal Register Volume 77, Number 150 (Friday, August 3, 2012)]
[Rules and Regulations]
[Pages 46295-46298]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-19043]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[EPA-HQ-OAR-2012-0233; FRL-9700-7]
Extension of Deadline for Promulgating Designations for the 2010
Primary Sulfur Dioxide National Ambient Air Quality Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Extension of deadline for promulgating designations.
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SUMMARY: The EPA is announcing that it is using its authority under the
Clean Air Act (CAA) to extend by up to 1 year the deadline for
promulgating initial area designations for the primary sulfur dioxide
(SO2) national ambient air quality standard (NAAQS) that was
promulgated in June 2010. With this extension, the EPA is now required
to complete initial designations for this NAAQS by June 3, 2013.
DATES: The new deadline for the EPA to promulgate designations for the
2010 primary SO2 NAAQS is June 3, 2013.
FOR FURTHER INFORMATION CONTACT: For questions regarding this action,
contact Rhonda Wright, Air Quality Policy Division, Office of Air
Quality Planning and Standards, Mail Code C539-04, Environmental
Protection Agency, Research Triangle Park, North Carolina 27711;
telephone number: 919-541-1087; fax number: 919-541-0824; email
address: wright.rhonda@epa.gov.
SUPPLEMENTARY INFORMATION: This preamble is organized as follows:
I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document and other related
information?
II. Background
A. Area Designation Requirements
B. Summary of Designations Guidance Provided in the Proposed and
Final SO2 NAAQS Preambles and in the March 2011 and
September 2011 Memoranda
III. Extension of Deadline for Promulgating Designations for the
2010 NAAQS
I. General Information
A. Does this action apply to me?
Entities potentially affected by this action include state, local,
and tribal governments that would participate in the initial area
designation process for the 2010 SO2 standard.
B. Where can I get a copy of this document and other related
information?
The EPA has established a docket for designations for the 2010
SO2 NAAQS under Docket ID No. EPA-HQ-OAR-2012-0233. All
documents in the docket are listed in the www.regulations.gov index.
Although listed in the index, some information is not publicly
available, e.g., confidential business information 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 either electronically
in www.regulations.gov or in hard copy at the EPA Docket Center EPA/DC,
EPA West, Room 3334, 1301 Constitution Avenue NW, Washington, DC The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the EPA
Docket Center is (202) 566-1742.
An electronic copy of this document is also available at
www.epa.gov/so2designations.
II. Background
A. Area Designation Requirements
On June 2, 2010, the EPA Administrator signed a notice of final
rulemaking that revised the primary SO2 NAAQS (75 FR 35520,
published on June 22, 2010) after review of the existing two primary
SO2 standard promulgated on April 30, 1971 (36 FR 8187).\1\
The EPA established the revised primary SO2 NAAQS at 75
parts per billion (ppb) which is attained when the 3-year average of
the annual 99th percentile of 1-hour daily maximum concentrations does
not exceed 75 ppb. The EPA determined in that rulemaking that this is
the level necessary to provide protection of public health with an
adequate margin of safety, especially for children, the elderly and
those with asthma. These groups are particularly susceptible to the
health effects associated with breathing SO2.
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\1\ Although the notice was signed on June 2, 2010, it was not
publicly distributed until the next day, June 3, 2010. The EPA
generally regards ``promulgation'' for public notice purposes to
mean signature of a final rule combined with its public
dissemination. For purposes of CAA section 107(d)(1), therefore,
which imposes deadlines tied to the promulgation of the NAAQS for
states to submit designations recommendations and for the EPA to
promulgate designations, the EPA interprets the promulgation date of
the 2010 primary SO2 NAAQS to be June 3, 2010.
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After the EPA establishes or revises a NAAQS pursuant to CAA
section 109, the CAA directs the EPA and the states to begin taking
steps to ensure that those NAAQS are met. The first step is to identify
areas of the country that do or do not meet the new or revised NAAQS.
This step is known as the initial area designations. Section 107(d)(1)
of the CAA provides that, ``By such date as the Administrator may
reasonably require, but not later than 1 year after promulgation of a
new or revised NAAQS for any pollutant under section 109, the Governor
of each state shall * * * submit to the Administrator a list of all
areas (or portions thereof) in the state'' that designated those areas
as nonattainment, attainment, or unclassifiable. The CAA defines an
area as nonattainment if it is violating the NAAQS or if it is
contributing to a violation in a nearby area. See CAA section
107(d)(1)(A)(i).
The CAA further provides, ``Upon promulgation or revision of a
NAAQS, the Administrator shall promulgate the designations of all areas
(or portions thereof) * * * as expeditiously as practicable, but in no
case later than 2 years from the date of promulgation of the new or
revised NAAQS. Such period may be extended for up to 1 year in the
event the Administrator has insufficient information to promulgate the
designations.'' See CAA section 107(d)(1)(B)(i).
After the states submit their recommendations, but no later than
120 days prior to promulgating designations, the EPA is required to
notify a state of any intended modifications to the state's recommended
designation. The state then has an opportunity to demonstrate why any
proposed modification is inappropriate. Whether or not a state provides
a recommendation, the EPA must promulgate the designation that the
agency deems appropriate within two years of promulgation of the NAAQS
(or within 3 years if the EPA extends the deadline).
For the June 2010 SO2 NAAQS, the deadline for states to
submit designation recommendations to the EPA for their areas was June
3, 2011. The EPA has been evaluating these recommendations and
conducting additional analyses to determine whether it is necessary to
modify any of the state recommendations. The EPA was originally
intending to complete the initial designations for the 2010
SO2 NAAQS on a 2-year schedule, by June 3, 2012. We
explained this intent in the preambles to the notices of proposed and
final rulemakings for the revised SO2 NAAQS, and in
subsequently issued guidance documents suggesting
[[Page 46296]]
how states could develop their designations recommendations and how
they could develop and submit state implementation plans (SIPs) for
attainment, maintenance and enforcement of the NAAQS. We received
numerous comments in response to our guidance, including suggestions
that we take the extra year allowed under the CAA to issue designations
where insufficient information exists, and, for the reasons discussed
below, we are persuaded that it is more reasonable to take extra time
allowed in these circumstances, a year or less as appropriate, rather
than to proceed with our prior intention to issue designations by June
3, 2012.
B. Summary of Designations Guidance Provided in the Proposed and Final
SO2 NAAQS Preambles and in the March 2011 and September 2011
Memoranda
We first explained our intentions for designations under the new
SO2 NAAQS in the preamble to the proposed NAAQS rule,
published in the Federal Register on December 8, 2009 (74 FR 64810). In
the proposal, we explained that since the new SO2 ambient
monitoring network and any newly sited monitors would not be generating
sufficient monitoring data in time to inform the EPA decisions on
designations, even if the EPA took an extra year, we intended to issue
initial area designations on a 2-year schedule, by June 2012, based on
3 years of complete, quality assured, certified air quality monitoring
data from the pre-existing monitoring network (74 FR 64858). We then
expected to base designations on air quality data from the years 2008-
2010 or 2009-2011, using hourly reported data from existing monitors,
and to designate as nonattainment any area with a monitor indicating a
violation of the 1-hour SO2 NAAQS, regardless of whether
that monitor is located such that it could be counted towards meeting
the proposed new network requirements (74 FR at 64859). The EPA further
explained, however, that if the monitor indicates that the monitoring
site meets the 1-hour SO2 NAAQS, the EPA's designation
decision would be made on a case-by-case basis, including possibly an
unclassifiable designation due to the EPA being unable to determine,
due to lack of data, whether the area is violating the NAAQS or is
contributing to a violation in a nearby area (74 FR 64859).
In the published June 22, 2010, final NAAQS rulemaking preamble,
partly in response to comments on the proposal, the EPA described a
different intended approach to issuing initial area designations in
order to make it more consistent with what we then described as our
historical approach to implementing the prior SO2 NAAQS (75
FR 35550). For designations, we indicated that approach would rely upon
both monitoring data from the existing SO2 network for the
years 2008-2010, as well as any refined SO2 dispersion
modeling for sources that may have the potential to cause or contribute
to a NAAQS violation, provided that it is recent and available (75 FR
35569). Under this approach, the EPA would designate as nonattainment
an area that has monitoring or refined modeling results showing a NAAQS
violation, and as attainment an area that has both monitoring data and
appropriate modeling results showing no violations (75 FR 35569). In
general, other areas, including those with SO2 monitors
showing no violations but without modeling showing no violations, the
EPA would designate as unclassifiable (75 FR 35569). However, the EPA
further explained that it anticipated making determinations of when
monitoring alone could be appropriate to support a designation for a
specific area on a case-by-case basis, informed by the area's factual
record and after examining the historic treatment of the area with
respect to prior SO2 designations as well as whether the
area is one in which monitoring would be the more appropriate technical
tool for determining attainment of the 1-hour NAAQS (75 FR 35552).
The final NAAQS preamble also explained that the EPA received
comments expressing concerns with the perceived burdens of implementing
the proposed monitoring network as well as the sufficiency of its scope
for purposes of identifying NAAQS violations (75 FR 35570). Some of
these commenters suggested using modeling to determine the scope of
monitoring requirements, or favored modeling over monitoring to
determine attainment of the NAAQS (75 FR 35570). In response to these
commenters, we explained our modified expectations at that time for
issuing designations, as well as our intention to issue further
modeling guidance (75 FR 35570). However, as we expected that it would
take some time to issue guidance, and that modeling several hundred
sources would represent a substantial burden, we clarified that we did
not expect states to complete such modeling and incorporate their
results in designations recommendations due in June 2011 (75 FR 35570).
Rather, we expected states would generally submit designations
recommendations of unclassifiable, and that most areas' informational
records would be insufficient to support initial designations of either
attainment or nonattainment (75 FR 35571).
In March 2011, the EPA then issued a memorandum, included in the
docket for today's extension, providing non-binding guidance on
designations for the 2010 primary SO2 NAAQS, including
modeling guidance (March 2011 Guidance). In this guidance, the EPA
stated its intention at that time to promulgate initial designations
for this standard within 2 years from the promulgation of the NAAQS
(i.e., by June 3, 2012). (March 2011 Guidance at pp. 1-2.) Under the
CAA, states were to submit their primary SO2 NAAQS
designation recommendations to the EPA by June 3, 2011. The EPA stated
in its guidance that if the EPA intends to modify any state's
recommendation, the EPA will notify the state no later than 120 days
prior to the EPA's action to promulgate designations (i.e., by February
3, 2012, for designations then expected to be promulgated by June 3,
2012). The EPA again explained that in general, due to an expected
absence of monitoring or modeling information showing whether areas
were meeting or not meeting the revised NAAQS, most areas would likely
be initially designated as unclassifiable (March 2011 Guidance at p.
2).
In this March 2011 Guidance, the EPA also discussed a suggested
analytic approach that would use both air quality monitoring and
modeling information (a ``hybrid'' modeling and monitoring approach) to
determine if an area meets or does not meet the 2010 primary
SO2 NAAQS initially described in the preamble for the June
2010 primary SO2 NAAQS. Under such an approach, areas would
generally be designated as: (1) Nonattainment, where monitoring data or
an appropriate modeling analysis or other appropriate information
indicate a violation; (2) attainment, where there are no monitored
violations and an appropriate modeling analysis or other appropriate
information demonstrate no violations; or (3) unclassifiable, where
there are no monitored violations and no appropriate modeling analysis
or other appropriate information sufficient to support an alternate
designation (March 2011 Guidance at pp. 3-5). The March 2011 Guidance
also explained that given the currently limited network of
SO2 monitors and our expectation that states will not yet
have completed appropriate modeling of all significant SO2
sources, we anticipated that most areas of the country will be
designated ``unclassifiable.''
[[Page 46297]]
In September 2011, the EPA issued a draft guidance document on SIP
submissions for the 2010 primary SO2 NAAQS (September 2011
Draft Guidance). The EPA published a notice of availability of this
draft guidance in the Federal Register on October 3, 2011 (76 FR
61098). The EPA invited public comment on this draft document from
October 3, 2011, to December 2, 2011 (76 FR 66925; October 28, 2011).
This draft document includes guidance on how states could support
future NAAQS attainment demonstrations in SIPs using a hybrid modeling
and monitoring approach.
The EPA received several comments questioning the appropriateness
of using the hybrid modeling and monitoring approach to demonstrate
attainment of the SO2 NAAQS. (See comments at Docket ID No.
EPA-HQ-OAR-2010-1059.) Although the September 2011 Draft Guidance did
not specifically address designations, commenters expressed their
concerns regarding the hybrid approach both for initial designations
purposes as well as for future SIP planning and attainment
demonstration purposes. These concerns included, for example, industry
sources and state regulators not having adequate time to conduct
modeling to inform either designations recommendations that were due in
June 2011 or SIP submissions due under the CAA in June 2013. Even in
areas that may have monitored violations of the primary NAAQS, some
commenters asserted uncertainty from where contributions to those
violating ambient concentrations were coming.
Commenters claimed that the EPA's guidance to date did not
sufficiently enable sources and states to fully identify nearby
contributing areas or determine the boundaries of possible
nonattainment areas. Consequently, these commenters urged the EPA to
take the additional time allowed under the CAA in situations where
available data is insufficient before issuing initial designations and
use that additional time to further refine and improve the EPA's
expected overall approach to implementing the 1-hour SO2
NAAQS for both current conditions influencing initial designations and
future conditions supporting SIP attainment demonstrations.
Subsequently, in April 2012, the EPA's Assistant Administrator for
Air and Radiation sent letters to representatives of state and local
government and tribal agencies that described the EPA's modified
expectations regarding some SO2 implementation aspects, and
that reiterated the agency's intent to proceed with initial area
designations as expeditiously as possible given available data. (See
sample letters at www.epa.gov/airquality/sulfurdioxide/implement.html.)
Then, in late May and early June 2012, the EPA held numerous meetings
with environmental advocacy, state and local government, and industry
stakeholders regarding the EPA's overall implementation approach to the
2010 primary SO2 NAAQS, and in these discussions
stakeholders repeated their concerns and suggestions regarding
designations, including the recommendations to take the extra time
allowed under CAA section 107 where insufficient data is available. In
addition, the EPA has publicly distributed a ``white paper'' raising
for discussion possible alternative implementation approaches to those
that were presented in the September 2011 Draft Guidance. (See ``White
Paper'' at www.epa.gov/airquality/sulfurdioxide/implement.html.) The
EPA has recently received numerous comments on the ``white paper'' and
on the stakeholder discussions, several of which also address
designations and which recommend taking additional time to promulgate
them. Some of these comments also suggest that the EPA should
significantly revise the modeling guidance contained in the March 2011
Designations Guidance, to account for the 1-hour form of the 2010
SO2 NAAQS, as some commenters believe that the current
approved modeling protocol is not well suited for use in designations
for the 1-hour NAAQS.
The EPA is still reviewing comments and has not yet determined
whether to revise its overall approach for issuing initial
designations. At the same time, the EPA has also received a notice of
intent to sue from environmental advocacy stakeholders under CAA
section 304(a)(2) for having missed the June 3, 2012, statutory
deadline for issuing designations that applies in the absence of a
determination by the EPA to take the extra year allowed under CAA
section 107 based on insufficient data.
III. Extension of Deadline for Promulgating Designations for the 2010
NAAQS
In light of the comments received on the September 2011 Guidance,
including those regarding the timing and approach for issuing initial
area designations, and the subsequent comments received as part of the
stakeholder outreach process in May and June 2012, the EPA acknowledges
that it remains significantly uncertain what analytic approach sources,
states, and the EPA will consistently and cooperatively use to make the
determinations required under the CAA with respect to both current and
future air quality. Because the issues involved, and the comments
received on the draft guidance, relate to determinations of both the
boundaries of areas currently meeting or not meeting the NAAQS and
whether such areas will or will not meet the NAAQS in the future, the
EPA agrees that it should make effective use of the additional time
allowed under the CAA to promulgate designations. The EPA has
insufficient data at this time to promulgate designations, including
where it is necessary to identify nearby contributing areas and to
determine boundaries of possible nonattainment areas, which the EPA
cannot expect to definitively determine with full cooperation of
stakeholders in advance of resolving outstanding issues and uncertainty
regarding the most appropriate implementation approach, including
determining whether an area meets or does not meet the new NAAQS.
Therefore, the EPA concludes that it currently has insufficient
information to promulgate designations by June 2012, and intends under
these circumstances to take additional time, up to 1 additional year,
allowed under the CAA for promulgating initial designations for the
2010 primary SO2 NAAQS.
By taking the additional time, the EPA is now required under CAA
section 107 to promulgate designations by June 3, 2013. The EPA expects
to take additional time, as necessary, to appropriately assess
designations. For some areas, EPA anticipates it will not be necessary
to take the full additional year, and in those cases EPA will proceed
sooner than June 2013. For example, the EPA intends to make its best
effort to promulgate final designations for areas with monitored
violations of the SO2 NAAQS by the end of calendar year
2012, subject to being able to resolve issues related to nonattainment
boundary determinations and contributions from nearby areas, rather
than take until June 2013 for those areas. The EPA believes this
deadline extension is appropriate because the continued uncertainty
regarding the overall analytic approach to determining an area's
compliance status affects not only the initial identification of
nonattainment areas, but also the appropriate nonattainment area
boundaries, which involves clearly identifying nearby areas that are
(and are not) contributing to violations. The EPA expects to resolve
these outstanding issues this year, and, once
[[Page 46298]]
resolved, will proceed expeditiously to complete the designations
process.
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: July 27, 2012.
Lisa P. Jackson,
Administrator.
[FR Doc. 2012-19043 Filed 8-2-12; 8:45 am]
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