(a) Requirements -
(1) Scope.
(i) This section applies to the treatment of data showing exceedances or violations of any national ambient air quality standard for purposes of the following types of regulatory determinations by the Administrator:
(A) An action to designate an area, pursuant to Clean Air Act section 107(d)(1), or redesignate an area, pursuant to Clean Air Act section 107(d)(3), for a particular national ambient air quality standard;
(B) The assignment or re-assignment of a classification category to a nonattainment area where such classification is based on a comparison of pollutant design values, calculated according to the specific data handling procedures in 40 CFR part 50 for each national ambient air quality standard, to the level of the relevant national ambient air quality standard;
(C) A determination regarding whether a nonattainment area has attained the level of the appropriate national ambient air quality standard by its specified deadline;
(D) A determination that an area has data for the specific NAAQS, which qualify the area for an attainment date extension under the CAA provisions for the applicable pollutant;
(E) A determination under Clean Air Act section 110(k)(5), if based on an area violating a national ambient air quality standard, that the state implementation plan is inadequate under the requirements of Clean Air Act section 110; and
(F) Other actions on a case-by-case basis as determined by the Administrator.
(ii) A State, federal land manager or other federal agency may request the Administrator to exclude data showing exceedances or violations of any national ambient air quality standard that are directly due to an exceptional event from use in determinations identified in paragraph (a)(1)(i) of this section by demonstrating to the Administrator's satisfaction that such event caused a specific air pollution concentration at a particular air quality monitoring location.
(A) For a federal land manager or other federal agency to be eligible to initiate such a request for data exclusion, the federal land manager or other federal agency must:
(1) Either operate a regulatory monitor that has been affected by an exceptional event or manage land on which an exceptional event occurred that influenced a monitored concentration at a regulatory monitor; and
(2) Initiate such a request only after the State in which the affected monitor is located concurs with the federal land manager's or other federal agency's submittal.
(B) With regard to such a request, all provisions in this section that are expressed as requirements applying to a State shall, except as noted, be requirements applying to the federal land manager or other federal agency.
(C) Provided all provisions in this section are met, the Administrator shall allow a State to submit demonstrations for any regulatory monitor within its jurisdictional bounds, including those operated by federal land managers, other federal agencies and delegated local agencies.
(D) Where multiple agencies within a state submit demonstrations for events that meet the requirements of the Exceptional Events Rule, a State submittal shall have primacy for any regulatory monitor within its jurisdictional bounds.
(2) A demonstration to justify data exclusion may include any reliable and accurate data, but must specifically address the elements in paragraphs (c)(3)(iv) and (v) of this section.
(b) Determinations by the Administrator -
(1) Generally. The Administrator shall exclude data from use in determinations of exceedances and violations identified in paragraph (a)(1)(i) of this section where a State demonstrates to the Administrator's satisfaction that an exceptional event caused a specific air pollution concentration at a particular air quality monitoring location and otherwise satisfies the requirements of this section.
(2) Fireworks displays. The Administrator shall exclude data from use in determinations of exceedances and violations where a State demonstrates to the Administrator's satisfaction that emissions from fireworks displays caused a specific air pollution concentration in excess of one or more national ambient air quality standards at a particular air quality monitoring location and otherwise satisfies the requirements of this section. Such data will be treated in the same manner as exceptional events under this rule, provided a State demonstrates that such use of fireworks is significantly integral to traditional national, ethnic, or other cultural events including, but not limited to, July Fourth celebrations that satisfy the requirements of this section.
(3) Prescribed fires.
(i) The Administrator shall exclude data from use in determinations of exceedances and violations, where a State demonstrates to the Administrator's satisfaction that emissions from prescribed fires caused a specific air pollution concentration in excess of one or more national ambient air quality standards at a particular air quality monitoring location and otherwise satisfies the requirements of this section.
(ii) In addressing the requirements set forth in paragraph (c)(3)(iv)(D) of this section regarding the not reasonably controllable or preventable criterion:
(A) With respect to the requirement that a prescribed fire be not reasonably controllable, the State must either certify to the Administrator that it has adopted and is implementing a smoke management program or the State must demonstrate that the burn manager employed appropriate basic smoke management practices identified in Table 1 to § 50.14. Where a burn manager employs appropriate basic smoke management practices, the State may rely on a statement or other documentation provided by the burn manager that he or she employed those practices. If an exceedance or violation of a NAAQS occurs when a prescribed fire is employing an appropriate basic smoke management practices approach, the State and the burn manager must undertake a review of the subject fire, including a review of the basic smoke management practices applied during the subject fire to ensure the protection of air quality and public health and progress towards restoring and/or maintaining a sustainable and resilient wildland ecosystem. If the prescribed fire becomes the subject of an exceptional events demonstration, documentation of the post-burn review must accompany the demonstration.
(B) If the State anticipates satisfying the requirements of paragraph (c)(3)(iv)(D) of this section by employing the appropriate basic smoke management practices identified in Table 1 to § 50.14, then:
(1) The State, federal land managers, and other entities as appropriate, must periodically collaborate with burn managers operating within the jurisdiction of the State to discuss and document the process by which air agencies and land managers will work together to protect public health and manage air quality impacts during the conduct of prescribed fires on wildland. Such discussions must include outreach and education regarding general expectations for the selection and application of appropriate basic smoke management practices and goals for advancing strategies and increasing adoption and communication of the benefits of appropriate basic smoke management practices;
(2) The State, federal land managers and burn managers shall have an initial implementation period, defined as being 2 years from September 30, 2016, to implement the collaboration and outreach effort identified in paragraph (b)(3)(ii)(B)(1) of this section; and
(3) Except as provided in paragraph (b)(3)(ii)(B)(2) of this section, the Administrator shall not place a concurrence flag in the appropriate field for the data record in the AQS database, as specified in paragraph (c)(2)(ii) of this section, if the data are associated with a prescribed fire on wildland unless the requirements of paragraph (b)(3)(ii)(B)(1) of this section have been met and associated documentation accompanies any applicable exceptional events demonstration. The Administrator may nonconcur or defer action on such a demonstration.
(C) With respect to the requirement that a prescribed fire be not reasonably preventable, the State may rely upon and reference a multi-year land or resource management plan for a wildland area with a stated objective to establish, restore and/or maintain a sustainable and resilient wildland ecosystem and/or to preserve endangered or threatened species through a program of prescribed fire provided that the Administrator determines that there is no compelling evidence to the contrary in the record and the use of prescribed fire in the area has not exceeded the frequency indicated in that plan.
(iii) Provided the Administrator determines that there is no compelling evidence to the contrary in the record, in addressing the requirements set forth in paragraph (c)(3)(iv)(E) of this section regarding the human activity unlikely to recur at a particular location criterion for demonstrations involving prescribed fires on wildland, the State must describe the actual frequency with which a burn was conducted, but may rely upon and reference an assessment of the natural fire return interval or the prescribed fire frequency needed to establish, restore and/or maintain a sustainable and resilient wildland ecosystem contained in a multi-year land or resource management plan with a stated objective to establish, restore and/or maintain a sustainable and resilient wildland ecosystem and/or to preserve endangered or threatened species through a program of prescribed fire.
Table 1 to § 50.14 - Summary of Basic Smoke Management Practices, Benefit Achieved With the BSMP, and When it is Applieda
| Basic Smoke Management Practiceb | Benefit achieved with the BSMP | When the BSMP is applied - before/during/after the burn |
|---|---|---|
| Evaluate Smoke Dispersion Conditions | Minimize smoke impacts | Before, During, After. |
| Monitor Effects on Air Quality | Be aware of where the smoke is going and degree it impacts air quality | Before, During, After. |
| Record-Keeping/Maintain a Burn/Smoke Journal | Retain information about the weather, burn and smoke. If air quality problems occur, documentation helps analyze and address air regulatory issues. | Before, During, After. |
| Communication - Public Notification | Notify neighbors and those potentially impacted by smoke, especially sensitive receptors | Before, During. |
| Consider Emission Reduction Techniques | Reducing emissions through mechanisms such as reducing fuel loading can reduce downwind impacts | Before, During, After. |
| Share the Airshed - Coordination of Area Burning | Coordinate multiple burns in the area to manage exposure of the public to smoke | Before, During, After. |
(4) Wildfires. The Administrator shall exclude data from use in determinations of exceedances and violations where a State demonstrates to the Administrator's satisfaction that emissions from wildfires caused a specific air pollution concentration in excess of one or more national ambient air quality standard at a particular air quality monitoring location and otherwise satisfies the requirements of this section. Provided the Administrator determines that there is no compelling evidence to the contrary in the record, the Administrator will determine every wildfire occurring predominantly on wildland to have met the requirements identified in paragraph (c)(3)(iv)(D) of this section regarding the not reasonably controllable or preventable criterion.
(5) High wind dust events.
(i) The Administrator shall exclude data from use in determinations of exceedances and violations, where a State demonstrates to the Administrator's satisfaction that emissions from a high wind dust event caused a specific air pollution concentration in excess of one or more national ambient air quality standards at a particular air quality monitoring location and otherwise satisfies the requirements of this section provided that such emissions are from high wind dust events.
(ii) The Administrator will consider high wind dust events to be natural events in cases where windblown dust is entirely from natural undisturbed lands in the area or where all anthropogenic sources are reasonably controlled as determined in accordance with paragraph (b)(8) of this section.
(iii) The Administrator will accept a high wind threshold of a sustained wind of 25 mph for areas in the States of Arizona, California, Colorado, Kansas, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, Utah, and Wyoming provided this value is not contradicted by evidence in the record at the time the State submits a demonstration. In lieu of this threshold, States can identify and use an Administrator-approved alternate area-specific high wind threshold that is more representative of local or regional conditions, if appropriate.
(iv) In addressing the requirements set forth in paragraph (c)(3)(iv)(D) of this section regarding the not reasonably preventable criterion, the State shall not be required to provide a case-specific justification for a high wind dust event.
(v) With respect to the not reasonably controllable criterion of paragraph (c)(3)(iv)(D) of this section, dust controls on an anthropogenic source shall be considered reasonable in any case in which the controls render the anthropogenic source as resistant to high winds as natural undisturbed lands in the area affected by the high wind dust event. The Administrator may determine lesser controls reasonable on a case-by-case basis.
(vi) For large-scale and high-energy high wind dust events, the Administrator will generally consider a demonstration documenting the nature and extent of the event to be sufficient with respect to the not reasonably controllable criterion of paragraph (c)(3)(iv)(D) of this section provided the State provides evidence showing that the event satisfies the following:
(A) The event is associated with a dust storm and is the focus of a Dust Storm Warning.
(B) The event has sustained winds that are greater than or equal to 40 miles per hour.
(C) The event has reduced visibility equal to or less than 0.5 miles.
(6) Stratospheric Intrusions. Where a State demonstrates to the Administrator's satisfaction that emissions from stratospheric intrusions caused a specific air pollution concentration in excess of one or more national ambient air quality standard at a particular air quality monitoring location and otherwise satisfies the requirements of this section, the Administrator will determine stratospheric intrusions to have met the requirements identified in paragraph (c)(3)(iv)(D) of this section regarding the not reasonably controllable or preventable criterion and shall exclude data from use in determinations of exceedances and violations.
(7) Determinations with respect to event aggregation, multiple national ambient air quality standards for the same pollutant, and exclusion of 24-hour values for particulate matter.
(i) Where a State demonstrates to the Administrator's satisfaction that for national ambient air quality standards with averaging or cumulative periods less than or equal to 24 hours the aggregate effect of events occurring on the same day has caused an exceedance or violation, the Administrator shall determine such collective data to satisfy the requirements in paragraph (c)(3)(iv)(B) of this section regarding the clear causal relationship criterion. Where a State demonstrates to the Administrator's satisfaction that for national ambient air quality standards with averaging or cumulative periods longer than 24 hours the aggregate effect of events occurring on different days has caused an exceedance or violation, the Administrator shall determine such collective data to satisfy the requirements in paragraph (c)(3)(iv)(B) of this section regarding the clear causal relationship criterion.
(ii) The Administrator shall accept as part of a demonstration for the clear causal relationship in paragraph (c)(3)(iv)(B) of this section with respect to a 24-hour NAAQS, a State's comparison of a 24-hour concentration of any national ambient air quality standard pollutant to the level of a national ambient air quality standard for the same pollutant with a longer averaging period. The Administrator shall also accept as part of a demonstration for the clear causal relationship in paragraph (c)(3)(iv)(B) of this section with respect to a NAAQS with a longer averaging period, a State's comparison of a 24-hour concentration of any national ambient air quality standard pollutant to the level of the national ambient air quality standard for the same pollutant with a longer averaging period, without the State having to demonstrate that the event caused the annual average concentration of the pollutant to exceed the level of the NAAQS with the longer averaging period.
(iii) Where a State operates a continuous analyzer that has been designated as a Federal Equivalent Method monitor as defined in 40 CFR 50.1(g) that complies with the monitoring requirements of 40 CFR part 58, Appendix C, and the State believes that collected data have been influenced by an event, in following the process outlined in paragraph (c)(2) of this section, the State shall create an initial event description and flag the associated event-influenced data that have been submitted to the AQS database for the affected monitor. Where a State demonstrates to the Administrator's satisfaction that such data satisfy the requirements in paragraph (c)(3)(iv)(B) of this section regarding the clear causal relationship criterion and otherwise satisfy the requirements of this section, the Administrator shall agree to exclude all data within the affected calendar day(s).
(8) Determinations with respect to the not reasonably controllable or preventable criterion.
(i) The not reasonably controllable or preventable criterion has two prongs that the State must demonstrate: prevention and control.
(ii) The Administrator shall determine that an event is not reasonably preventable if the State shows that reasonable measures to prevent the event were applied at the time of the event.
(iii) The Administrator shall determine that an event is not reasonably controllable if the State shows that reasonable measures to control the impact of the event on air quality were applied at the time of the event.
(iv) The Administrator shall assess the reasonableness of available controls for anthropogenic sources based on information available as of the date of the event.
(v) Except where a State, tribal or federal air agency is obligated to revise its state implementation plan, tribal implementation plan, or federal implementation plan, the Administrator shall consider enforceable control measures implemented in accordance with a state implementation plan, tribal implementation plan, or federal implementation plan, approved by the EPA within 5 years of the date of the event, that address the event-related pollutant and all sources necessary to fulfill the requirements of the Clean Air Act for the state implementation plan, tribal implementation plan, or federal implementation plan to be reasonable controls with respect to all anthropogenic sources that have or may have contributed to the monitored exceedance or violation.
(vi) Where a State, tribal or federal air agency is obligated to revise its state implementation plan, tribal implementation plan, or federal implementation plan, the deference to enforceable control measures identified in paragraph (b)(8)(v) of this section shall remain only until the due date of the required state implementation plan, tribal implementation plan, or federal implementation plan revisions. However, where an air agency is obligated to revise the enforceable control measures identified in paragraph (b)(8)(v) of this section in its implementation plan as a result of an action pursuant to Clean Air Act section 110(k)(5), the deference, if any, to those enforceable control measures shall be determined on a case-by-case basis.
(vii) The Administrator shall not require a State to provide case-specific justification to support the not reasonably controllable or preventable criterion for emissions-generating activity that occurs outside of the State's jurisdictional boundaries within which the concentration at issue was monitored. In the case of a tribe treated as a state under 40 CFR 49.2 with respect to exceptional events requirements, the tribe's jurisdictional boundaries for purposes of requiring or directly implementing emission controls apply. In the case of a federal land manager or other federal agency submitting a demonstration under the requirements of this section, the jurisdictional boundaries that apply are those of the State or the tribe depending on which has jurisdiction over the area where the event has occurred.
(viii) In addition to the provisions that apply to specific event types identified in paragraphs (b)(3)(ii) and (b)(5)(i) through (iii) of this section in addressing the requirements set forth in paragraph (c)(3)(iv)(D) of this section regarding the not reasonably controllable or preventable criterion, the State must include the following components:
(A) Identification of the natural and anthropogenic sources of emissions causing and contributing to the monitored exceedance or violation, including the contribution from local sources.
(B) Identification of the relevant state implementation plan, tribal implementation plan, or federal implementation plan or other enforceable control measures in place for the sources identified in paragraph (b)(8)(vii)(A) of this section and the implementation status of these controls.
(C) Evidence of effective implementation and enforcement of the measures identified in paragraph (b)(8)(vii)(B) of this section.
(D) The provisions in this paragraph shall not apply if the provisions in paragraph (b)(4), (b)(5)(vi), or (b)(6) of this section apply.
(9) Mitigation plans.
(i) Except as provided for in paragraph (b)(9)(ii) of this section, where a State is subject to the requirements of 40 CFR 51.930(b), the Administrator shall not place a concurrence flag in the appropriate field for the data record in the AQS database, as specified in paragraph (c)(2)(ii) of this section, if the data are of the type and pollutant that are the focus of the mitigation plan until the State fulfills its obligations under the requirements of 40 CFR 51.930(b). The Administrator may nonconcur or defer action on such a demonstration.
(ii) The prohibition on placing a concurrence flag in the appropriate field for the data record in the AQS database by the Administrator stated in paragraph (b)(9(i) of this section does not apply to data that are included in an exceptional events demonstration that is:
(A) submitted in accordance with paragraph (c)(3) of this section that is also of the type and pollutant that is the focus of the mitigation plan, and
(B) submitted within the 2-year period allowed for mitigation plan development as specified in 40 CFR 51.930(b)(3).
(c) Schedules and procedures -
(1) Public notification.
(i) In accordance with the mitigation requirement at 40 CFR 51.930(a)(1), all States and, where applicable, their political subdivisions must notify the public promptly whenever an event occurs or is reasonably anticipated to occur which may result in the exceedance of an applicable air quality standard.
(ii) [Reserved]
(2) Initial notification of potential exceptional event.
(i) A State shall notify the Administrator of its intent to request exclusion of one or more measured exceedances of an applicable national ambient air quality standard as being due to an exceptional event by creating an initial event description and flagging the associated data that have been submitted to the AQS database and by engaging in the Initial Notification of Potential Exceptional Event process as follows:
(A) The State and the appropriate EPA Regional office shall engage in regular communications to identify those data that have been potentially influenced by an exceptional event, to determine whether the identified data may affect a regulatory determination and to discuss whether the State should develop and submit an exceptional events demonstration according to the requirements in this section;
(B) For data that may affect an anticipated regulatory determination or where circumstances otherwise compel the Administrator to prioritize the resulting demonstration, the Administrator shall respond to a State's Initial Notification of Potential Exceptional Event with a due date for demonstration submittal that considers the nature of the event and the anticipated timing of the associated regulatory decision;
(C) The Administrator may waive the Initial Notification of Potential Exceptional Event process on a case-by-case basis.
(ii) The data shall not be excluded from determinations with respect to exceedances or violations of the national ambient air quality standards unless and until, following the State's submittal of its demonstration pursuant to paragraph (c)(3) of this section and the Administrator's review, the Administrator notifies the State of its concurrence by placing a concurrence flag in the appropriate field for the data record in the AQS database.
(iii) [Reserved]
(iv) [Reserved]
(v) [Reserved]
(vi) Table 2 to § 50.14 identifies the submission process for data that will or may influence the initial designation of areas for any new or revised national ambient air quality standard.
Table 2 to § 50.14 - Schedule for Initial Notification and Demonstration Submission for Data Influenced by Exceptional Events for Use in Initial Area Designations
| Exceptional events/Regulatory action | Condition | Exceptional events deadline scheduled |
|---|---|---|
| (A) Initial Notification deadline for data years 1, 2 and 3.a | If state and tribal initial designation recommendations for a new/revised national ambient air quality standard are due August through January, | then the Initial Notification deadline will be the July 1 prior to the recommendation deadline. |
| (B) Initial Notification deadline for data years 1, 2 and 3.a | If state and tribal recommendations for a new/revised national ambient air quality standard are due February through July, | then the Initial Notification deadline will be the January 1 prior to the recommendation deadline. |
| (C) Exceptional events demonstration submittal deadline for data years 1, 2 and 3a | None | no later than the later of November 29, 2016 or the date that state and tribal recommendations are due to the Administrator. |
| (D) Initial Notification and exceptional events demonstration submittal deadline for data year 4b and, where applicable, data year 5.c | None | by the last day of the month that is 1 year and 7 months after promulgation of a new/revised national ambient air quality standard, unless either paragraph (E) or paragraph (F) applies. |
| (E) Initial Notification and exceptional events demonstration submittal deadline for data year 4b and, where applicable, data year 5.c | If the Administrator follows a 3-year designation schedule | the deadline is 2 years and 7 months after promulgation of a new/revised national ambient air quality standard. |
| (F) Initial Notification and exceptional events demonstration submittal deadline for data year 4b and, where applicable, data year 5.c | If the Administrator notifies the state/tribe that it intends to complete the initial area designations process according to a schedule between 2 and 3 years, | the deadline is 5 months prior to the date specified for final designations decisions in such Administrator notification. |
(3) Submission of demonstrations.
(i) Except as provided under paragraph (c)(2)(vi) of this section, a State that has flagged data as being due to an exceptional event and is requesting exclusion of the affected measurement data shall, after notice and opportunity for public comment, submit a demonstration to justify data exclusion to the Administrator according to the schedule established under paragraph (c)(2)(i)(B).
(ii) [Reserved]
(iii) [Reserved]
(iv) The demonstration to justify data exclusion must include:
(A) A narrative conceptual model that describes the event(s) causing the exceedance or violation and a discussion of how emissions from the event(s) led to the exceedance or violation at the affected monitor(s);
(B) A demonstration that the event affected air quality in such a way that there exists a clear causal relationship between the specific event and the monitored exceedance or violation;
(C) Analyses comparing the claimed event-influenced concentration(s) to concentrations at the same monitoring site at other times to support the requirement at paragraph (c)(3)(iv)(B) of this section. The Administrator shall not require a State to prove a specific percentile point in the distribution of data;
(D) A demonstration that the event was both not reasonably controllable and not reasonably preventable; and
(E) A demonstration that the event was a human activity that is unlikely to recur at a particular location or was a natural event.
(v) With the submission of the demonstration containing the elements in paragraph (c)(3)(iv) of this section, the State must:
(A) Document that the State followed the public comment process and that the comment period was open for a minimum of 30 days, which could be concurrent with the beginning of the Administrator's initial review period of the associated demonstration provided the State can meet all requirements in this paragraph;
(B) Submit the public comments it received along with its demonstration to the Administrator; and
(C) Address in the submission to the Administrator those comments disputing or contradicting factual evidence provided in the demonstration.
(vi) Where the State has submitted a demonstration according to the requirements of this section after September 30, 2016 and the Administrator has reviewed such demonstration and requested additional evidence to support one of the elements in paragraph (c)(3)(iv) of this section, the State shall have 12 months from the date of the Administrator's request to submit such evidence. At the conclusion of this time, if the State has not submitted the requested additional evidence, the Administrator will notify the State in writing that it considers the demonstration to be inactive and will not pursue additional review of the demonstration. After a 12-month period of inactivity by the State, if a State desires to pursue the inactive demonstration, it must reinitiate its request to exclude associated data by following the process beginning with paragraph (c)(2)(i) of this section.
[81 FR 68277, Oct. 3, 2016]