Exceptional Events and Fire Policy

1. Office of Air Quality Planning and Standards Exceptional Events and Fire Policy Phil Lorang WESTAR Fall Business Meeting November 6, 2013

2. Overview of Presentation • Exceptional Events Background • Feedback from Listening Sessions • Anticipated Schedule • Update of the Interim Air Quality Policy on Wildland / Prescribed Fires • Questions / Comments

3. Exceptional Events Background • EPA issued the Interim Exceptional Events Implementation Guidance in May 2013 • With release of guidance documents, EPA also announced: • Intent to pursue revisions to the 2007 Exceptional Events Rule • Intent to develop exceptional event implementation guidance to address wildfire-related events that may affect ozone concentrations • Provide guidance on how air agencies can incorporate the Exceptional Events Rule revisions into ozone / wildfire event demonstrations • Discuss the range of technical tools available to support the Exceptional Events Rule criteria

4. Feedback from Listening Sessions • To further inform the rule revision process, EPA hosted two listening sessions in August 2013 for interested parties • August 26, 2013 – public session • August 28, 2013 – state, local, and tribal co-regulators • Still ahead: Arizona-only listening session in mid-November • Listening sessions focused on 12 questions identifying potential issues for consideration in rule revisions • Most listening session participants provided verbal feedback • A few also provided written comments • EPA is still open to receiving ideas regarding specific rule revisions

5. Feedback from Listening Sessions Should EPA maintain the position presented in the interim guidance that the historical fluctuations criterion is not a “test” but a weight-of-evidence analysis that informs “clear causal” and “but for”? We heard: • Interested parties seem to agree that the “weight-of-evidence” approach described in the Interim Guidance is appropriate

6. Feedback from Listening Sessions • Do the following High Wind elements provide streamlining and flexibility? • Wind speed threshold • Prospective controls analysis • High Wind Action Plan We heard: • Interested parties generally agree that the wind speed threshold simplifies the high wind demonstration submittal process, but parties also stress the need for flexibility when determining and setting area-specific thresholds. • Feedback is mixed regarding the utility of both the prospective controls analysis (PCA) and the High Wind Action Plan (HWAP)

7. Feedback from Listening Sessions • Would it be helpful to incorporate the following “not reasonably controllable or preventable” elements in rule language? • Recently approved SIP measures meet “not reasonably controllable or preventable” requirements • For natural sources and interstate/international transport no control = reasonable control We heard: • Air agencies generally believe that SIP measures should satisfy the “not reasonably controllable or preventable” criterion and if these measures are insufficient, then EPA should do a SIP call • Air agencies generally support the concept that no control = reasonable controls for natural sources and international transport • NRDC does not support either of these elements

8. Feedback from Listening Sessions • How should EPA address the “but for” criterion? Examples might include the following: • Address adjustment of design values and daily values for events that are not “exceptional” by definition • Revise definition away from “absolute” to more “weight of evidence” • Other suggestions? We heard: • EPA should address adjustment of design values for events that are not “exceptional” by definition • Air agencies generally support a “weight of evidence” approach to “but for”

9. Feedback from Listening Sessions • Does EPA need to provide definitions for the following terms? • Event/natural event • Recurrence of natural events • Reasonable • Other terms? We heard: • Distinguish between natural and human events and consider separate criteria • EPA would need new CAA authorizing language for requiring additional control beyond approved SIP as “reasonable” • Define best smoke management practices and smoke management plan/program • All parties are better served by clear definitions in regulation • Definition of natural event in rule language is the same as the statutory definition so no one has additional insight into what this really means • “Reasonably controllable or preventable” is further discussed in preamble but not in the rule and what is said in the preamble is not binding, This term should be more defined in the rule for clarity.

10. Feedback from Listening Sessions Should EPA address mitigation elements differently than in the current rule, including the relationship between 40 CFR Subpart H requirements for emergency episodes / contingency planning and Regional Haze Rule requirements? We heard: • Not a lot of feedback for this question • One commenter believes that EPA should clarify the relationship between mitigation elements and Subpart H, particularly with respect to wildfires and prescribed fires or wildfires that are allowed to burn.

11. Feedback from Listening Sessions Would it be helpful to clarify those activities that constitute an EPA final agency action? We heard: • All interested parties (air agencies and NRDC) want EPA decisions on demonstrations to be final decisions • Many want EPA to act more quickly than they have seen EPA act in the past

12. Feedback from Listening Sessions Does EPA need to clarify that concurrences are NAAQS-specific, not pollutant-specific? We heard: • Interested parties seem to be split • Some maintain that concurrences should be pollutant-specific (e.g., any EPA concurrence means the data are excluded for all NAAQS for that pollutant) • Others maintain that concurrences should be NAAQS-by-NAAQS

13. Feedback from Listening Sessions Should EPA address whether EPA can consider a request for exclusion even if the air agency makes the request after the deadline? We heard: • The intent of the statute and rule is to exclude data associated with events that are out of the control of the affected air agency • Interested parties generally agree that air agencies should be able to request exclusions when needed, even if after the general schedule or otherwise promulgated deadlines

14. Feedback from Listening Sessions Is EPA’s guidance on flagging and excluding multiple 1-hour PM2.5 measurements versus flagging and excluding single 24-hour measurements appropriate? We heard: • Most interested parties support flagging of 24 1-hr values even if the event was shorter. • At least one air agency cautioned against flagging all 24 1-hr values without evidence to support exclusion of all values. This air agency thought excluding “valid” data could be grounds for litigation. • Flagging and providing an initial event description for 24 1-hr values is time consuming, and agencies would prefer to flag the calculated 24-hour average instead.

15. Feedback from Listening Sessions • Would it be helpful to “clean-up” the EER to address the following? • Scheduling provisions included in reg text that have been made irrelevant by the passage of time (e.g., 50.14(c)(2)(iv) For PM2.5 data collected during calendar years 2004-2006….) • Scheduling deadlines following promulgation of new NAAQS to avoid case-by-case revisions We heard: • Interested parties generally agree that removing irrelevant language makes sense • Interested parties also generally believe that it makes sense to promulgate a built-in schedule that applies when NAAQS are revised

16. Feedback from Listening Sessions Does EPA need to tackle fire-related components when it revised the Exceptional Events Rule? We heard: • Interested parties generally agree that the EER is intended to cover all exceptional events. If wildfires, prescribed fires, agricultural burns can be “exceptional” events, then the rule revisions should address them. • While some interested parties believe that prescribed fires and agricultural burns can be exceptional events, others urge caution in expanding the statutory concept of exceptional events to include more human/ anthropogenic activities, such as agricultural burns. • At a minimum, rule revisions should define smoke management program elements and best smoke management practices if these concepts play a role in whether EPA will concur on a prescribed fire event.

17. Overarching Comment: Streamline! • General agreement that for some types of events the evidence is very compelling, so only a streamlined demonstration is needed. • There has been great progress in this direction for some types of high wind events in Arizona. • EPA shares states’ interest in streamlining for other types of events.

18. Adjustment Concept • The concept of adjusting an air quality measurement instead of flagging it and completely setting it aside for regulatory purposes has been part of several comments. • The recently proposed 2008 ozone NAAQS SIP Requirements rule mentions this concept. • Some commenters favor this approach. • Others have commented that there presently are no methods to make such adjustments. • The adjustment concept raises a number of issues in terms of the design and operation of AQS, separate from any policy/legal issues.

19. Anticipated Schedule • Schedule • Rule revisions • Proposal – early 2014 • Promulgation – early 2015 • Guidance to support data exclusion requests for wildfire-related events that may affect ozone concentrations • Draft guidance – early 2014 • Final guidance – early 2015 • Public hearings • Proposal language contains provision for public hearings based on feedback • If interested parties want a public hearing, we would consider a location in the West

20. Interim Air Quality Policy on Wildland and Prescribed Fires • EPA has indicated its intent to revise the interim Air Quality Policy on Wildland and Prescribed Fires to address agricultural burning • EPA has convened several conference calls with federal agencies to discuss possible changes but has made no decisions on possible changes • EPA wishes to meet with tribal governments, state agencies (Agriculture, Environment, and Forest Management), and the public to get ideas and input on changes

21. QUESTIONS / COMMENTS