1 The Exceptional Events Rule (EER) Overview Tom Link EPA – OAQPS Geographic Strategies Group Westar Meeting, San Francisco, February 25, 2009

2 EER Guiding Principles  The five guiding principles in CAA section 319(b)(3)(B) are: (i) that protection of public health is the highest priority; (ii) that timely information should be provided to the public in any case in which the air quality is unhealthy; (iii) that all ambient air quality data should be included in a timely manner, an appropriate Federal air quality database that is accessible to the public; (iv) that each State must take necessary measures to safeguard public health regardless of the source of the air pollution; and (v) that air quality data should be carefully screened to ensure that events not likely to recur are represented accurately in all monitoring data and analyses.

3 EER: CAA Rule Requirements (i) the occurrence of an exceptional event must be demonstrated by reliable, accurate data that is promptly produced and provided by Federal, State, or local government agencies; (ii) a clear causal relationship must exist between the measured exceedances of a national ambient air quality standard and the exceptional event to demonstrate that the exceptional event caused a specific air pollution concentration at a particular air quality monitoring location; (iii) there is a public process for determining whether an event is exceptional; and (iv) there are criteria and procedures for the Governor of a State to petition the Administrator to exclude air quality monitoring data that is directly due to exceptional events from use in determinations by the Administrator with respect to exceedances or violations of the national ambient air quality standards

4 EER Basics  The rule sets criteria and process for EPA to agree to exclude event-influenced data when determining NAAQS compliance, design values, etc.  Section 319 of the Clean Air Act, as amended by the SAFE-TEA-LU Act of 2005 required EPA to promulgate a rule to govern the review and handling of exceptional events data.  Final rule published March 22,  Scope: Rule is a general rule CFR language defining NAAQS for ozone, PM2.5, and PM10 explicitly provides for exclusion of event-influenced data. Preamble states EPA intention to effectively apply same scheme for other NAAQS also, via 107(d)(3) discretion. EPA will formally extend the rule to other pollutants as NAAQS are revised, in time for new mandatory designations. For criteria pollutants that do not currently have provisions for exceptional events, EPA during its review of those NAAQS will include provisions to address exceptional events as appropriate at that time. [In the interim, EPA intends to use its 107(d)(3) discretion to not redesignate areas as nonattainment if they are impacted by exceptional events. ]  Replaces previous EPA policy/practices.

5 Definition of Exceptional Event  Event affected air quality.  Event was not reasonably controllable or preventable.  Event was either Natural or Caused by human activity that is unlikely to recur at a particular location.  EPA Administrator has determined through the process established in the rule that it was an exceptional event.  Event was not: Air mass stagnation. Inversion. High temperature. Lack of precipitation. Source noncompliance.

6 Criteria/Required Evidence  Clear causal relationship between event and concentration.  Concentration value to be excluded must be an exceedance or violation  Concentration must be in excess of normal historical fluctuations including background.  Exceedance would not have occurred “but for” the event.  Reliable, accurate data must be promptly provided  The rule has special provisions regarding fireworks and prescribed fires. Preamble discusses other situations of interest.

7 Process/Dates - States  In general, the state must Notify public of the occurrence of the event. Flag data in AQS and provide initial event description by July 1 of following year Give public notice and opportunity to comment. Submit full demonstration not later than the lesser of, 3 years following the end of the calendar quarter in which the event occurred or 1 year before EPA plans to use the data for a regulatory decision.

8 Process/Dates - EPA  Preamble says EPA will generally try to take action on requests within 60 days of receiving documentation, but may take longer in complex cases. b  EPA approval should be by letter or other notice. Regional Office concurrence with the event flag in AQS is a convenience for communication purposes, not the final action.

9 NRDC has challenged the rule in the D.C. Circuit Court of Appeals  -- Challenges EPA's definition of 'natural event' because EPA should not have defined it to allow any causal role for human activity (defined it as: an event in which human activity plays little or no direct causal role  --Challenges certain preambular explanations/interpretations of specific types of exceptional events The Court heard briefs from NRDC and EPA in October 2008 but has not yet issued a ruling Status of Procedural and Legal Challenges to the EER

10 Part Delegation  Action on exceptional event requests has been delegated to the Regional Administrator and the Assistant Administrator. Either can take the action. EPA Delegation of Authority 1200 TN 592:  Limitations: ….”a Regional Administrator must consult with the AA for Air and Radition or his/her designee, and OGC, where a decision to exclue or not exclude flagged data involves a deviation from guidance that governs the exclusion of data determined to be influenced by exceptional events.”

11 How Do We Ensure Regional Consistency?  How do we ensure national consistency? National EER Regional Workgroup Lotus Notes database posting EE determinations Data sharing among Regions and States  Will there be additional guidance?  EPA is waiting for the Court’s decision before deciding on whether additional guidance should be provided

12 To What Years of Data Does the EER Apply for the 2008 Ozone Standard? NAAQS Pollutant/ Standard/(Level)/ Promulgation Date Air Quality Data Collected for Calendar Year Event Flagging & Initial Description Deadline Detailed Documentation Submission Deadline Ozone/8-Hr Standard (0.075 ppm)Promulgated March 12, March 12, 2009 b 2008March 12, 2009 b Days after the end of the calendar quarter in which the event occurred or February 5, 2010, whichever date occurs first b b Indicates change from general schedule in 40 CFR Note: EPA notes that the table of revised deadlines only applies to data EPA will use to establish the final initial designations for new or revised NAAQS. The general schedule applies for all other purposes, most notably, for data used by EPA for redesignations to attainment.