[Federal Register Volume 78, Number 184 (Monday, September 23, 2013)]
[Rules and Regulations]
[Pages 58189-58202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-22873]
[[Page 58189]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[EPA-R09-OAR-2012-0936; FRL-9901-13-Region 9]
Designation of Areas for Air Quality Planning Purposes;
California; Morongo Band of Mission Indians
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to correct an error in a previous
rulemaking that revised the boundaries between nonattainment areas in
Southern California designated under the Clean Air Act for the national
ambient air quality standard for one-hour ozone. EPA is also taking
final action to revise the boundaries of certain Southern California
air quality planning areas to designate the Indian country of the
Morongo Band of Mission Indians, California as a separate air quality
planning area for the one-hour and 1997 eight-hour ozone standards.
DATES: This rule is effective on October 23, 2013.
ADDRESSES: EPA has established docket number EPA-R09-OAR-2012-0936 for
this action. The index to the docket is available electronically at
www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne
Street, San Francisco, California. While all documents in the docket
are listed in the index, some information may be publicly available
only at the hard copy location (e.g., copyrighted material), and some
may not be publicly available in either location (e.g., Confidential
Business Information). To inspect the hard copy materials, please
schedule an appointment during normal business hours with the contact
listed in the FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Ken Israels, Grants and Program
Integration Office (AIR-8), U.S. Environmental Protection Agency,
Region IX, (415) 947-4102, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,''
``us,'' ``our,'' and ``Agency'' refer to EPA.
Table of Contents
I. Summary of Proposed Action
II. Comments and Responses
III. Final Action
IV. Statutory and Executive Order Reviews
I. Summary of Proposed Action
On January 2, 2013 (78 FR 51), EPA proposed to correct an error in
a previous rulemaking that revised the boundaries between nonattainment
areas in Southern California designated under the Clean Air Act (CAA or
``Act'') for the national ambient air quality standard (NAAQS or
``standard'') for one-hour ozone.\1\ EPA also proposed to revise the
boundaries of certain Southern California air quality planning areas to
designate the Indian country \2\ of the Morongo Band of Mission
Indians, California (``Morongo Reservation'') as a separate air quality
planning area for the one-hour and 1997 eight-hour ozone standards.
References herein to our ``proposed rule'' refer to our January 2, 2013
proposed rule.
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\1\ Ground-level ozone is a gas that is formed by the reaction
of volatile organic compounds (VOC) and oxides of nitrogen
(NOX) in the atmosphere in the presence of sunlight.
These precursor emissions are emitted by many types of pollution
sources, including power plants and industrial emissions sources,
on-road and off-road motor vehicles and engines, and smaller
sources, collectively referred to as area sources.
\2\ ``Indian country'' as defined at 18 U.S.C. 1151 refers to:
``(a) all land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and, including rights-of-way running through
the reservation, (b) all dependent Indian communities within the
borders of the United States whether within the original or
subsequently acquired territory thereof, and whether within or
without the limits of a state, and (c) all Indian allotments, the
Indian titles to which have not been extinguished, including rights-
of-way running through the same.''
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Specifically, we proposed to correct an error in our October 7,
2003 (68 FR 57820) final action approving a request by the State of
California (``California'' or ``State'') to shift the boundary between
the South Coast Air Basin and the Southeast Desert Air Basin (which
includes Coachella Valley) eastward, and thereby relocate the Banning
Pass area to the South Coast Air Basin from the Southeast Desert Air
Basin. As explained in our proposed rule, the ``error'' pertained only
to the Morongo Reservation, which is located within the Banning Pass,
and which is the only Indian country affected by the relevant portion
of our 2003 final action.
With respect to the one-hour ozone standard, EPA's 2003 action had
the effect of moving the Morongo Reservation from the Coachella Valley
portion of the ``Southeast Desert Modified AQMA Area'' (``Southeast
Desert'') to the ``Los Angeles-South Coast Air Basin Area'' (``South
Coast'') and changing the designations and classifications accordingly.
Specifically, EPA's 2003 action had the effect of changing the ozone
nonattainment area classification for the Banning Pass area, including
the Morongo Reservation, from ``Severe-17'' to ``Extreme''.\3\
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\3\ While the one-hour ozone standard itself has been revoked,
the NSR requirements that had applied to a nonattainment area for
the 1997 eight-hour ozone standard based on that area's designation
and classification for the one-hour ozone standard, at the time of
designation for the 1997 eight-hour ozone standard, continue to
apply to the area consistent with the requirements of EPA's phase I
implementation rule governing the transition from the one-hour ozone
standard to the 1997 eight-hour ozone standard and a related court
decision.
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In connection with the 2003 final action, we erred by failing to
recognize that, while EPA had authority to change the boundary of the
South Coast with respect to Indian country under CAA sections
107(d)(3)(A)-(C), 301(a) and 301(d), it is apparent from the proposed
and final rules in 2003 that EPA did not recognize that it was acting
under that authority or that EPA appropriately considered the effect of
the action on Indian country lands. EPA recognized only that the Agency
was acting on a State request under section 107(d)(3)(D) and reviewed
the request accordingly. However, tribes are sovereign entities, and
not political subdivisions of states. Typically, states are not
approved to administer programs under the CAA in Indian country, and
California has not been approved by EPA to administer any CAA programs
in Indian country. With respect to the Morongo Reservation, EPA or the
Morongo Tribe is the appropriate entity to initiate boundary changes,
and in this instance, the Morongo Tribe initiated the change through a
rulemaking request to EPA.
If EPA had considered such a boundary change with respect to the
Morongo Reservation under the appropriate statutory authority (i.e.,
CAA sections 107(d)(3)(A)-(C), 301(a) and 301(d)), the Agency might
well have declined to change the boundary with respect to the Morongo
Reservation based on ``planning and control considerations'' given that
emissions sources within the Morongo Reservation are subject to EPA
jurisdiction whereas the emissions sources outside of the Reservation
are subject to the jurisdiction of the South Coast Air Quality
Management District (SCAQMD). In addition to the difference in
jurisdiction, we might have declined to change the boundary given the
associated decrease in the major source threshold and absence of a
federal Indian country new source review (NSR) program for new or
modified stationary sources at the time. Therefore, under CAA section
[[Page 58190]]
110(k)(6),\4\ we proposed to correct the error by rescinding our 2003
final action as it pertains to the Morongo Reservation and only as it
pertains to the revoked one-hour ozone standard.
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\4\ CAA section 110(k)(6) provides that: ``Whenever the
Administrator determines that the Administrator's action approving,
disapproving, or promulgating any plan or plan revision (or part
thereof), area designation, redesignation, classification, or
reclassification was in error, the Administrator may in the same
manner as the approval, disapproval, or promulgation revise such
action as appropriate without requiring any further submission from
the State. Such determination and the basis thereof shall be
provided to the State and public.'' We interpret this provision to
authorize the Agency to make corrections to a promulgated regulation
when it is shown to our satisfaction that (1) we clearly erred in
failing to consider or inappropriately considered information made
available to EPA at the time of the promulgation, or the information
made available at the time of promulgation is subsequently
demonstrated to have been clearly inadequate, and (2) other
information persuasively supports a change in the regulation. See 57
FR 56762, at 56763 (November 30, 1992).
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Second, in our proposed rule, under CAA sections 107(d)(3)(A)-(C),
301(a), and 301(d), we proposed to revise the boundaries of the
Southeast Desert to designate the Morongo Reservation as a separate
nonattainment area for the one-hour ozone standard and to classify the
Morongo Reservation as ``Severe-17,'' i.e., consistent with its prior
classification when it was included in the Southeast Desert.\5\ Third,
also under CAA sections 107(d)(3)(A)-(C), 301(a) and 301(d), we
proposed to revise the boundaries of the South Coast to designate the
Morongo Reservation as a separate nonattainment area for the 1997
eight-hour ozone standard and to classify the Morongo Reservation as
``Severe-17,'' i.e., consistent with its original classification when
it was included in the South Coast.
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\5\ Sections 107(d)(3)(A)-(C) provide that EPA may initiate the
redesignation process ``on the basis of air quality data, planning
and control considerations, or any other air quality-related
considerations the Administrator deems appropriate,'' and
``promulgate the redesignation, if any, of the area or portion
thereof.'' CAA section 107(d)(3) does not refer to Indian country,
but consistent with EPA's discretionary authority in CAA sections
301(a) and 301(d)(4) to directly administer CAA programs, and
protect air quality in Indian country through federal
implementation, EPA is authorized to directly administer sections
107(d)(3)(A)-(C) and redesignate Indian country areas.
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In proposing the second and third actions described above, we
applied the principles set forth in EPA's policy (referred to herein as
the ``Tribal Designation Policy'') for establishing separate air
quality designations for areas of Indian country.\6\ Under the Tribal
Designation Policy, where EPA receives a request for a boundary change
from a tribe seeking to have its Indian country designated as a
separate area, the policy indicates that EPA will make decisions
regarding these requests on a case-by-case basis after consultation
with the tribe.
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\6\ See memorandum from Stephen D. Page, Director, EPA Office of
Air Quality Planning and Standards, to EPA Regional Air Directors,
Regions I-X, dated December 20, 2011, titled ``Policy for
Establishing Separate Air Quality Designations for Areas of Indian
Country.''
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As a matter of policy, EPA believes that it is important for tribes
to submit certain information, including, among other items, a formal
request from an authorized tribal official; documentation of Indian
country boundaries to which the air quality designation request
applies; and an analysis of a number of factors (referred to as a
``multi-factor analysis,'') including air quality data, emissions-
related data (including source emissions data, traffic and commuting
patterns, population density and degree of urbanization), meteorology,
geography/topography, and jurisdictional boundaries.\7\
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\7\ See Tribal Designation Policy, pages 3 and 4. The Tribal
Designation Policy also states that, in addition to information
related to the identified factors, tribes may submit any other
information that they believe is important for EPA to consider.
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In May 2009, the Chairman of the Morongo Tribe submitted the
Tribe's request for a separate ozone nonattainment area that included a
multi-factor analysis addressing air quality data, emissions data,
meteorology, geography/topography, and jurisdictional boundaries.\8\ As
such, although submitted prior to release of the Tribal Designation
Policy, the Morongo Tribe's request for a boundary change to create a
separate ozone nonattainment area, in conjunction with EPA's additional
analysis found in our technical support document (TSD) for the proposed
rule, represents the type of formal, official request and supporting
information called for in the policy.
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\8\ See letter from Robert Martin, Chairman, Morongo Band of
Mission Indians, to Deborah Jordan, Director, Air Division, EPA
Region IX, dated May 29, 2009.
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For the proposed rule, EPA noted that the Agency had recently
reviewed the Morongo Tribe's multi-factor analysis in connection with
designating the Morongo Reservation as a separate nonattainment area
for the 2008 ozone standard, and concluded that EPA's analysis and
recent decision to designate the Morongo Reservation as a separate
nonattainment area for the 2008 ozone standard was directly relevant to
our consideration of whether to revise the boundaries of existing air
quality planning areas to designate the Morongo Reservation as a
separate nonattainment area for the one-hour and 1997 eight-hour ozone
standards, and adopted the analysis and rationale previously relied
upon by EPA in establishing the Morongo nonattainment area for the 2008
ozone standard. In doing so, we recognized that the three standards
address the same pollutant, and thus share multi-factor analyses and
considerations.\9\
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\9\ EPA also noted that in using many of the same factors found
in the 2008 ozone designations process, we are using factors that
represent the most current information regarding meteorology, air
quality, etc. in the area and therefore we believe serve the
purposes of being representative for the previously established
ozone standards.
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Based on our review of air quality data, meteorology and
topography, we observed that the Morongo Reservation experiences
transitional conditions characteristic of a mountain pass area through
which pollutants are channeled from a highly urbanized metropolitan
nonattainment area to the west to the relatively less developed
nonattainment area to the east. Considering the three factors of air
quality data, meteorology, and topography, EPA concluded that the
Agency could reasonably include the Morongo Reservation in either the
South Coast nonattainment area to the west, or the Southeast Desert
nonattainment area to the east, as EPA has done in the past for the
one-hour ozone standard and the 1997 eight-hour ozone standard.
Alternatively, EPA could establish a separate nonattainment area for
the Morongo Reservation as it did for the 2008 eight-hour ozone
standard.\10\
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\10\ See 77 FR 30088, dated May 21, 2012.
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Taking into account the relative amount of emissions associated
with activities on the Morongo Reservation and corresponding minimal
contribution to regional ozone violations, we believed that under the
circumstances present here, it would be appropriate to assign
particular weight to the jurisdictional boundaries factor, consistent
with the principles for designations of Indian country set forth in the
Tribal Designation Policy. Moreover, we noted that the Tribe has
invested in the development of its own air program, including operation
of weather stations and an air monitoring station, and has expressed
interest in development of its own permitting program. Under the
jurisdictional boundaries factor, we found that redesignation of the
Morongo Reservation as a separate ozone nonattainment area for the one-
hour ozone and 1997 eight-hour ozone standards would be appropriate.
Therefore, consistent with the designation of the Morongo Reservation
for the 2008 ozone standard, we proposed to revise the boundaries of
the Southeast Desert one-hour ozone nonattainment area and the
boundaries
[[Page 58191]]
of the South Coast 1997 eight-hour ozone nonattainment area to
designate the Morongo Reservation as a separate nonattainment area for
the one-hour and 1997 eight-hour ozone standards.
Please see our proposed rule and TSD for additional background
information about the Morongo Reservation and the regulatory context,
as well as a more detailed explanation of our rationale for the
proposed actions.
II. Comments and Responses
Our proposed rule provided for a 30-day comment period. During this
period, we received comments from the South Coast Air Quality
Management District (SCAQMD or ``District''), the Coachella Valley
Association of Governments (CVAG), and from a private citizen. All
three comment letters oppose EPA's proposed actions. We have summarized
the comments and provide responses in the paragraphs that follow.
SCAQMD Comment #1: EPA's primary reason for wanting to reclassify
Morongo as ``severe-17'' appears to be based on the fact that in
``extreme'' ozone areas, the major source threshold for VOC and
NOX is 10 tons per year, whereas in ``severe-17'' areas it
is 25 tons per year, thereby increasing the number of new or modified
sources subject to the emissions offset requirement. EPA's sole concern
appears to be the availability of emission reduction credits (ERCs) for
use as offsets. We are not sure that EPA's rationale, which appears to
be based on economic considerations, is a proper basis for
reclassification under CAA section 107(d)(3). Also, EPA has
misinterpreted the law relative to availability of offsets for sources
to be located on Morongo lands. Because Morongo is included within the
South Coast District, the special provisions in state law and District
rules regarding the transfer and use of inter-district and inter-basin
offsets are inapplicable.
EPA Response to SCAQMD Comment #1: Our proposed rule proposed two
separate actions--(1) an error correction (of a 2003 final action) and
(2) boundary revisions (for one-hour and 1997 eight-hour ozone NAAQS).
EPA considered the issue of availability of ERCs for use as offsets for
new or modified sources on the Morongo Reservation in the context of
the proposed error correction action, not the boundary revisions
action, and the statutory basis for consideration of this issue was CAA
section 110(k)(6), not section 107(d)(3).
The District is correct that, in our proposed rule, we identified
restrictions in state law and District rules regarding the availability
of ERCs for use to comply with the emissions offset requirement for new
or modified major sources on Morongo lands as one of the adverse
regulatory consequences for the Tribe of our 2003 final action that
persuaded us to propose the error correction. However, the availability
of ERCs was not the only adverse regulatory effect of our 2003 action.
We recognized that the primary adverse regulatory effect was the
lowering of the applicable VOC and NOX major source
threshold from 25 tons per year to 10 tons per year that resulted from
the 2003 transfer of the Banning Pass (including the Morongo
Reservation) from the Southeast Desert ``severe'' ozone nonattainment
area to the South Coast ``extreme'' ozone nonattainment area. See 78 FR
51, at 54-55. The lower threshold meant that more new or modified
sources proposed on Morongo lands would be considered ``major'' and
thus subject to the emissions offset requirement in the first instance.
Based on our understanding of the state and District restrictions on
the use of emission reduction credits, we believed at the time of the
proposed rule that the adverse regulatory effect of lowering the
threshold was exacerbated by the uncertainty associated with the
availability of ERCs generated outside of the Morongo Reservation to
offset emissions of new or modified sources on the Morongo Reservation.
We appreciate the District's clarification of state law and
District rules regarding inter-district and inter-basin transfer of
ERCs. Based on the District's clarification, we now understand that
under state law and District rules governing inter-district or inter-
basin transfer of ERCs, the meaning of ``District'' is geographic in
nature and not jurisdictional, and thus, sources on Morongo lands are
considered within the ``District'' for the purposes of using ERCs to
meet the emissions offset requirement although such sources are not
subject to District jurisdiction and thus may purchase and use ERCs
generated anywhere in the South Coast without prior approval from the
State or District.
In light of SCAQMD's interpretation of state and District law, we
no longer find that such law presents an obstacle to permitting of new
or modified stationary sources on the Morongo Reservation. While ERCs
may be available for such sources in the same manner as they are for
sources in the South Coast outside of the Morongo Reservation, the more
fundamental, adverse consequence of lowering the major source threshold
from 25 tons per year to 10 tons per year remains a sufficient adverse
consequence in and of itself to persuade us to take final action to
correct our 2003 final action as it pertains to the one-hour ozone
standard and as it pertains to the Morongo Reservation.
SCAQMD Comment #2: EPA's current proposal is to separate the
Morongo Reservation, which is currently within the South Coast Air
Basin, as its own air quality planning area and to classify the area as
``severe-17'' for the one-hour and 1997 eight-hour ozone NAAQS. EPA
should retain the Morongo Reservation in the South Coast Air Basin in
accordance with EPA's rationale for approving California's request to
revise the basin so that the Banning Pass--including Morongo--was
included in the South Coast Air Basin. Now, as then, the Banning Pass--
including Morongo--belongs in the South Coast Air Basin from an air
quality perspective.
EPA Response to SCAQMD Comment #2: Our proposed rule includes two
types of actions: an error correction and boundary revisions. The first
action, under CAA section 110(k)(6), would correct the error by
rescinding our 2003 boundary change action with respect to the Morongo
Reservation and would thereby separate the Morongo Reservation from the
South Coast and return the reservation back to the Southeast Desert
ozone nonattainment area within which the reservation was located prior
to EPA's 2003 action, but would not establish a separate Morongo ozone
nonattainment area. The second type of action, under CAA section
107(d)(3) and CAA sections 107(d)(3)(A)-(C), 301(a) and 301(d), would
establish a separate Morongo ozone nonattainment area for the one-hour
and 1997 eight-hour ozone NAAQS. Because we are finalizing both actions
at the same time, the Morongo Reservation will not move back to the
Southeast Desert nonattainment area but will instead become its own
nonattainment area for the one-hour and 1997 eight-hour ozone
standards.
With respect to our error correction action, the District
accurately cites EPA's rationale for approving California's request to
revise the boundaries to transfer the Banning Pass from the Southeast
Desert to the South Coast in 2003: ``We believe that Banning is more
similar to the South Coast than the Coachella area, and that it would
support efficient planning and control to move the federal boundary of
the South Coast Air Basin eastward to encompass the Banning Pass
area.'' 68 FR 48848, at 48850 (August 15, 2003). In our proposed rule,
we explain that we do not find that we erred in 2003 in reviewing the
State's request for a boundary revision, but we failed to
[[Page 58192]]
recognize that, to the extent that our 2003 action affected Indian
country, our action involved more than a response to a State request
under CAA section 107(d)(3)(D).\11\ It also involved an EPA-initiated
boundary change action under sections 107(d)(3)(A)-(C), section 301(a),
and 301(d)(4) because the State is not approved to administer CAA
programs in Indian country. 78 FR 51, at 54. Our proposed rule also
explains how evaluation of the same criteria used to approve the
State's request would have differed for Indian country. Id. For
instance, ``planning and control considerations'' while seamless from
the standpoint of District jurisdiction over sources on state lands,
would have differed for the Morongo Reservation because, at that time,
EPA had not established a nonattainment NSR program for Morongo under
which to review the greater number of new or modified sources deemed
``major'' by virtue of the boundary change.
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\11\ As noted above, Tribes are sovereign entities, and not
political subdivisions of States. Typically, states are not approved
to administer programs under the CAA in Indian country, and
California has not been approved by EPA to administer any CAA
programs in Indian country. With respect to the Morongo Reservation,
EPA or the Tribe is the appropriate entity to initiate boundary
changes, and in this instance, the Tribe initiated the boundary
change through a request to EPA.
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In effect, through its 2003 boundary change request, the State of
California was voluntarily seeking to expand the geographic boundary of
the area (the South Coast) subject to the most stringent requirements
under the CAA. While EPA would have little reason to disapprove such a
state request, there is also little reason for EPA to force Indian
country located in that geographic area to be consistent with the
State's voluntary request.
With respect to our proposed action to establish a separate Morongo
ozone nonattainment area, we are not applying the same criteria that we
used to evaluate the State's boundary change request, but rather are
applying the criteria set forth in our Tribal Designations Policy. See
pages 55 and 56 of our proposed rule. As described in greater detail in
our proposed rule, we observe that the Morongo Reservation experiences
transitional conditions characteristic of a mountain pass area and that
we could reasonably have included the Morongo Reservation in either the
South Coast or the Southeast Desert or established a separate Morongo
nonattainment area. Given that emissions associated with the Morongo
Reservation are minimal, we believe that it is appropriate to assign
particular weight to the jurisdictional boundaries factor and thus are
taking final action today, consistent with our proposed action, to
revise the boundaries of the South Coast and Southeast Desert
nonattainment areas to designate the Morongo Reservation as a separate
Morongo nonattainment area for the one-hour and 1997 eight-hour ozone
standards. (The Morongo Reservation is already a separate nonattainment
area for the 2008 ozone standard.)
SCAQMD Comment #3: SCAQMD staff is concerned about the possible
effects of separating and reclassifying the Morongo Reservation. EPA's
action can only be intended to facilitate the construction and
operation of new or expanded major sources on Morongo lands. As the
Banning Pass is directly upwind of the Coachella Valley, any
significant new emissions on Morongo lands could adversely affect the
Coachella Valley and its ability to maintain attainment of the ozone
standard. EPA should analyze the air quality impacts of the proposed
action on the Coachella Valley.
Response to SCAQMD Comment #3: With respect to nonattainment New
Source Review (NSR), the effect of our actions today will be an
increase in the major source threshold for ozone precursors, i.e., VOC
and NOX, from 10 and 25 tons per year, for new or modified
stationary sources proposed for construction and operation on the
Morongo Reservation. As such, new or modified stationary sources to be
located at the Morongo Reservation with potentials to emit (PTE) from
10 to 25 tons per year of VOC or NOX will not be subject to
the major source requirements to meet the lowest achievable emission
rate (LAER) and to offset emissions increases. Conversely, with or
without our actions today, such sources with PTE 25 tons per year or
more of VOC or NOX will continue to be subject to major
source NSR, i.e., subject to both the LAER and offset requirements.
Likewise, the regulatory requirements for sources with PTE less than 10
tons per year of VOC or NOX will also remain the same.
Thus, SCAQMD is correct that the proposed actions will facilitate
construction and operation of new or modified stationary sources on the
Morongo Reservation with PTE from 10 to 25 tons per year of VOC or
NOX to the extent that such sources will not be subject to
the LAER and emissions offset requirements that otherwise would have
applied to such sources if EPA were not to finalize today's actions.
Such sources could be constructed and operated at the Morongo
Reservation with or without today's actions, but the costs associated
with construction and operation would be less if the source is not
required to meet the LAER and emissions offset requirements.
To gain perspective on the potential downwind effects of one or
more new or modified stationary sources with PTE from 10 to 25 tons per
year of VOC or NOX on the Morongo Reservation, it is useful
to compare the emissions generated within the South Coast and Coachella
Valley with those generated by sources associated with the Morongo
Reservation under existing conditions, as shown in the following table.
Comparison of Emissions Associated With South Coast, Coachella Valley, and Morongo Reservation Under Existing
Conditions
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Emissions (tons per day)
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South Coast \a\ Coachella Valley \b\ Morongo reservation
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Pollutant Stationary Total Stationary Total Stationary
sources sources sources Total
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VOC..................................... 257 593 2.0 17.7 0.058 0.54
NOX..................................... 92 758 0.7 45.2 0.066 3.05
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\a\ Emissions estimates are for year 2008 as presented in table 3-1A (page 3-15) of the SCAQMD's Final 2012 Air
Quality Management Plan, December 2012.
\b\ Emissions estimates are for year 2008 as presented for the Salton Sea Air Basin portion of Riverside County
in CARB's Almanac, Emission Projections Data, as published on CARB's Web site.
[[Page 58193]]
\c\ The source for emissions estimates from sources associated with the Morongo Reservation is table 1 (page 13)
of the attachment to a letter from Robert Martin, Chairman, Morongo Band of Mission Indians, to Deborah
Jordan, Director, Air Division, EPA Region IX, dated May 29, 2009. These data reflect 2006 emissions, the most
current year of emissions inventoried by the Morongo. We have no reason to expect that 2008 emissions
associated with the Morongo Reservation would be significantly different than those estimated for 2006, and
thus, we believe that the emissions estimates for the Morongo Reservation provide a reasonable basis for
comparison with the regional emissions estimates prepared for 2008. Based on the Morongo emissions inventory,
on-road mobile sources account for approximately 85% to 90% of total Morongo-related emissions of VOC and NOX.
Stationary sources associated with the reservation account for approximately 2% to 11% of the total with the
balance emitted by area sources.
As shown in the above table, total emissions associated with the
Morongo Reservation comprise 0.09% and 0.4% of the VOC and
NOX emissions, respectively, associated with all sources
within the South Coast. The effect of today's actions relate to the
stationary source fraction of Morongo's emissions, which amount to
0.058 and 0.066 tons per day of VOC and NOX, respectively
(or 21 and 24 tons per year of VOC and NOX, respectively),
and which comprise only 0.01% and 0.009% of the VOC and NOX
emissions, respectively, within the South Coast. Clearly, one or even
several new or modified stationary sources within the 10 to 25 tons per
year range would have minimal or no effect on Coachella Valley when
compared to the overall pollutant burden passing through the Banning
Pass from the South Coast to Coachella Valley. Any new or modified
stationary source on the Morongo Reservation with a PTE large enough to
impact Coachella Valley would almost certainly be subject to major
source NSR and thereby subject to the LAER and emission offset
requirements that would avoid such an impact.
SCAQMD Comment #4: We are concerned that EPA's actions would create
an uneven playing field between sources located within the Morongo
boundaries and similar nearby sources in the South Coast Air Basin,
including the remainder of the Banning Pass. Indeed, sources locating
on Morongo lands would also have an unfair advantage over sources in
the adjacent Coachella Valley, because under SCAQMD rules even minor
sources of most pollutants must obtain offsets, and these rules apply
within the Coachella Valley. Moreover, major sources in both areas are
subject to SCAQMD's BACT requirement, which is at least as stringent as
federal LAER. While minor sources are subject to potentially less
stringent BACT, and the minor source threshold in Coachella Valley is
25 tons per year, SCAQMD's BACT Guidelines for minor sources are
generally the most stringent in the nation and are distinguished from
the BACT for major sources only in that economic and technical
feasibility may be considered. In short, new and modified stationary
sources on either side of the Banning Pass, as well as in the remainder
of the Banning Pass, will be subject to more stringent standards than
sources seeking to locate on Morongo lands. We are concerned that EPA's
proposed action will create a ``pollution island'' within the Morongo
area. Our concern is based on real and substantial experiences in which
facilities located on Tribal lands have created problems in the
adjacent communities. For example, EPA and SCAQMD have taken
enforcement action against facilities located on Cabazon Tribal land
near the city of Mecca in southeastern Riverside County.
Response to SCAQMD Comment #4: EPA notes that, with or without
today's action, new or modified sources on the Morongo Reservation are
subject to the requirements of EPA's Indian country NSR rule codified
in CFR, Title 40, part 49 (76 FR 38748, July 1, 2011), which are in
some respects less stringent than the corresponding requirements under
SCAQMD's NSR rules that apply outside Indian country in both the South
Coast and Coachella Valley. Specifically, under EPA's Indian country
NSR rule, emissions offsets are not required for new or modified minor
sources. However, with respect to control technology requirements,
while the Indian country NSR rule does not require new or modified
minor sources to meet BACT or LAER level of control, the rule does
require EPA (or the Indian Tribe in cases where a Tribal agency is
assisting EPA with administration of the program through a delegation)
to conduct a case-by-case control technology review to determine the
appropriate level of control, if any, necessary to assure that the
NAAQS are achieved, as well as the corresponding emission limitations
for the affected emission units at the new or modified source. See 40
CFR 49.154(c). In carrying out this determination, among other
considerations, EPA takes into account ``[t]ypical control technology
or other emission reduction measures used by similar sources in
surrounding areas.'' 40 CFR 49.154(c)(1)(ii). Thus, the corresponding
control technology requirements (i.e., minor source ``BACT'') that
SCAQMD applies to minor sources subject to its authority would inform
EPA's determination regarding control technology requirements and
associated emission limitations for new or modified minor stationary
sources on the Morongo Reservation.
Nonetheless, we recognize that our actions today will broaden the
differences in NSR requirements in that new or modified sources on the
Morongo Reservation with PTE between 10 and 25 tons per year of VOC or
NOX will no longer be subject to LAER and emissions offset
requirement that otherwise would have applied. We do not, however,
foresee our actions as resulting in the ``pollution island'' effect
about which SCAQMD is concerned. First, our actions today simply
restore the major source threshold that had applied within the Morongo
Reservation before our 2003 approval of California's boundary change.
The only difference between the regulatory context during the pre-2003
period and the context that will exist upon the effective date of
today's action is that new or modified stationary sources in the
Banning Pass subject to SCAQMD jurisdiction with PTE between 10 and 25
are now subject to major source ``BACT,'' which differs from minor
source ``BACT'' under SCAQMD's NSR rules, as explained by SCAQMD above,
whereas such sources were subject to minor source ``BACT'' prior to our
approval of California's boundary change request in 2003. We have no
evidence that the Morongo Reservation was a ``pollution island'' during
the pre-2003 period when the higher threshold applied, and the subtle
differences between then and now described above with respect to minor
source BACT and major source BACT under SCAQMD rules argues against the
possibility that the Morongo Reservation will become a ``pollution
island'' as a result of our actions today. It is important to note
that, even with our actions today, the applicable NSR requirements
within the Morongo Reservation (at a 25 tons per year major source
threshold) would continue to be among the most stringent in the nation
in keeping with today's classification of the Morongo Reservation as a
separate ``severe'' nonattainment area for the one-hour and 1997 ozone
standards.
SCAQMD Comment #5: EPA may not have adequate enforcement resources
to ensure ongoing compliance on Tribal lands, even if the rules are
equally stringent. For example, examination of
[[Page 58194]]
the available information indicates that the Colmac Energy facility,
which is identified as a major source under RCRA, was last inspected
nearly 10 years ago. Tribes themselves also may not have adequate
resources to ensure compliance. For example, in the mid-2000's, the
Torrez-Martinez reservation was identified as home to at least 20
illegal dumps. Health hazards were created as a result of some of the
dump material catching fire. EPA, the federal courts, the SCAQMD, the
Tribe, and other organizations were all involved in attempting to
resolve these issues.
Response to SCAQMD Comment #5: EPA's compliance and enforcement
program extends to sources subject to EPA permitting jurisdiction, and
to oversight of sources subject to the permitting jurisdiction of
states, air districts, and tribes (where tribes have authority to issue
such permits). The hypothetical prospect of new or modified stationary
sources at the Morongo Reservation, whether permitted by EPA or by the
Morongo Tribe (if and when the Tribe is authorized to issue such
permits), will have essentially no effect on the scope of EPA's
nationwide compliance and enforcement program and thus essentially no
effect on the resources needed to adequately meet the demands of that
program. Moreover, facility inspections, while important, represent
just one method for acquiring information in connection with compliance
and enforcement.\12\ Information requests under CAA section 114, for
example, represent another method. Lastly, EPA does not believe that
compliance issues that have arisen in the past with one tribe in any
way portend compliance issues that may arise in the future with another
tribe any more than one state's past actions portend future actions
taken by other states.
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\12\ To the extent that SCAQMD cites infrequent inspections at
the Colmac Energy facility as an example of inadequate EPA
enforcement resources, EPA notes that since 1989, under a monitoring
and enforcement agreement to which SCAQMD, EPA, and the Cabazon Band
of Mission Indians are signatories, SCAQMD has been allowed entry
onto the Cabazon Reservation to monitor and inspect the Colmac
Energy facility, and thus the frequency of EPA inspections cited by
SCAQMD bears little relation to the extent of compliance oversight
for the Colmac facility.
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SCAQMD Comment #6: We are concerned about the potential
precedential effect of this decision.
Response to SCAQMD Comment #6: In this action, we are determining
that our 2003 approval of California's request to shift the boundary
between the South Coast and Southeast Desert eastward and thereby
include the Banning Pass in the South Coast was in error as it pertains
to Indian country in the Banning Pass, and because the Morongo Tribe is
the only Tribe with Indian country that was affected by the eastward
shift of the boundary, the direct precedential effect of today's
actions is quite limited. More generally, though, our 2003 action
approved a State's request, in effect, to expand the area subject to
more stringent CAA requirements and conversely to shrink the area
subject to less stringent CAA requirements. We should have recognized
at the time, but did not, that EPA, not the State, was changing the
boundary with respect to Indian country located within the expansion
area and thereby imposing the more stringent CAA requirements on Indian
country as well. States rarely voluntarily request boundary changes
that increase the stringency of requirements for their sources in the
affected area, and thus, we have no reason to expect that similar
circumstances culminating in our 2003 action and setting the stage for
today's actions exist elsewhere with respect to California or other
states and other tribes. Lastly, we note that we have previously
established a number of separate tribal air quality planning areas,
see, e.g., the separate listings for several tribes located within
Arizona and California in 40 CFR 81.303 and 40 CFR 81.305,
respectively, (i.e., particularly for the 1997 and 2008 eight-hour
ozone standards), and thus, today's action does not establish a new
precedent but rather is consistent with previous actions.
CVAG Comment #1: The creation of a separate air basin for the Tribe
will result in a less stringent definition of a major source threshold
for New Source Review and may result in a lesser level of air pollution
controls as currently established through its designation in the South
Coast Air Basin. This could potentially result in the creation of a
``magnet'' for, and give an unfair advantage to, facilities locating at
the Morongo Reservation relative to facilities in the adjacent areas
under State jurisdiction.
EPA Response to CVAG Comment #1: CVAG is correct that the effect of
today's actions will raise the applicable major source threshold for
VOC and NOX from 10 tons per year to 25 tons per year for
new or modified stationary sources to be located on the Morongo
Reservation. This means that a new or modified stationary source
proposed on the Morongo Reservation after the effective date of today's
final actions with a PTE between 10 and 25 tons per year of VOC or
NOX will not be subject to the same control technology
(i.e., lowest achievable control technology) and emission offset
requirements that would have applied if we did not finalize our
actions. As such, the applicable requirements for new or modified
stationary sources on the Morongo Reservation will return to those that
applied before EPA's 2003 approval of California's boundary change
request. The applicable minimum requirements for new or modified
sources on the Morongo Reservation will also mirror those that apply in
Coachella Valley with respect to LAER and offsets, which adjoins the
new Morongo air quality planning area to the east, although we
recognize that California has chosen to go beyond statutory and
regulatory minimum requirements with respect to other NSR requirements
in both the South Coast and Coachella Valley. We have no evidence to
suggest that the Morongo Reservation was a ``magnet'' for new emissions
sources prior to our 2003 action to approve California boundary change
request, when the less stringent major source threshold applied, nor do
we have any reason to believe that the Reservation will become such a
``magnet'' as a result of EPA's actions today that simply return the
Morongo Reservation to the statutory and regulatory context that
applied prior to EPA's 2003 action.
CVAG Comment #2: Back in January 2011, CVAG sent a letter to EPA
expressing concern regarding the Morongo Tribe's request for a separate
ozone nonattainment area. EPA staff agreed to keep CVAG and SCAQMD
apprised of EPA's actions on the Tribe's request but did not follow-
through. Instead, CVAG was informed of EPA's January 2, 2013 proposed
rule through another party. In May 2012, EPA designated the Morongo
Reservation as a separate nonattainment area for the 2008 ozone
standard. EPA is using key findings from that decision as the basis for
their current proposed action. This designation action was again done
without notification to or consultation with CVAG or the SCAQMD,
although the proposed rule at 78 FR 55 stated that this decision will
be made ``after all necessary consultation with the Tribe and, as
appropriate, with the involvement of other affected entities.'' In
addition, in footnote 15 of the proposed rule, it states ``EPA has
consulted with the Tribe several times about this matter.'' This
dangerously ``paves the way'' for the proposed action relative to the
one hour and 1997 eight hour ozone standards.
EPA Response to CVAG Comment #2: CVAG is correct that EPA has
adopted the analysis and rationale relied upon by EPA in establishing
the Morongo
[[Page 58195]]
nonattainment area for the 2008 ozone standard in support of EPA's
proposal to revise the boundaries of the Southeast Desert (which
includes Coachella Valley) and the South Coast to designate the Morongo
Reservation as a separate nonattainment area for the one-hour and 1997
eight-hour ozone standards. See pages 55 and 56 of the proposed rule.
CVAG objects to EPA's failure to notify or consult with CVAG about
either the designations for the 2008 ozone standard or the actions
proposed by EPA on January 2, 2013. As to the designations for the 2008
ozone standard, the process is set forth in CAA section 107 and
involves (1) notification by EPA to states of the requirement to submit
recommendations of areas to be listed as nonattainment, attainment, or
unclassifiable; (2) submittal to EPA of state recommendations; (3)
review by EPA of the recommendations; and (4) notification by EPA to
states of EPA's intention to modify any state recommendation and
provision of an opportunity to such state to demonstrate why such
modification is inappropriate. EPA also provided a similar process for
tribes to submit, and for EPA to review and modify, recommendations for
their areas of Indian country. There is no requirement that EPA notify
states concerning tribal recommendations related to Indian country or
that EPA notify tribes of state recommendations related to lands under
state jurisdiction.
As to the proposed action to revise the boundaries of the Southeast
Desert and South Coast to designate the Morongo Reservation as a
separate nonattainment area for the one-hour and 1997 eight-hour ozone
standard, EPA acknowledges that it agreed to keep CVAG apprised of our
action and failed to follow-through prior to proposing this action on
January 2, 2013. While EPA regrets the oversight, we note that such
notification, other than through publication of the proposed and final
rule in the Federal Register, is not required for the type of action
that we proposed.
In its January 7, 2011 letter to EPA, CVAG raised two specific
substantive concerns in connection with Morongo's May 29, 2009 boundary
change request: (1) inclusion of the Morongo Reservation in Coachella
Valley, and resultant use of Morongo ozone monitoring data, could
jeopardize Coachella Valley's ability to meet the 1997 eight-hour ozone
standard by the applicable 2019 attainment date; and (2) inclusion of
the Morongo Reservation in Coachella Valley would impact Coachella
Valley's ability to meet PM10 objectives and to continue to
attain PM2.5 standards. EPA's decision to designate the
Morongo Tribe as a separate nonattainment area rather than move the
Reservation back into Southeast Desert (which includes Coachella
Valley) alleviates both specific substantive concerns raised by CVAG in
its January 7, 2011 letter to EPA. Please see our Response to SCAQMD
Comment 3, above, for additional analysis concerning potential
impacts on Coachella Valley of today's final actions.
Lastly, with respect to CVAG's cautionary note concerning EPA's
consultation with the Tribe in connection with this action, we simply
note that our proposed action, in part, derives from a request by the
Morongo Tribe to create a separate nonattainment ozone area for the
Tribe, and thus, it is perfectly natural and appropriate that EPA
consult with the Tribe about such a matter prior to proposing action.
EPA would do no less for the State if responding to a state request.
EPA notes that consultation with the Tribe is also consistent with the
government-to-government relationship between federally-recognized
tribes and the federal government.
CVAG Comment #3: The Coachella Valley is exposed to frequent gusty
winds with the strongest and most persistent winds typically occurring
immediately to the east of Banning Pass, which is noted as a wind power
generation resource area. Given the geographic location of the
reservation, to the Banning Pass and the Coachella Valley, the
designation will most negatively impact the Coachella Valley's air
quality. Located in the Southeast Desert AQMA area, the Coachella
Valley will still be required to meet the NAAQS whether we generate
pollutants or they are transported to our area.
EPA Response to CVAG Comment #3: As explained in detail in EPA
Response to SCAQMD Comment 3, EPA does not foresee any impact
to air quality in Coachella Valley as a result of EPA's actions to
rescind our 2003 final action, as it pertains to the Morongo
Reservation, and to revise the boundaries of the Southeast Desert (in
which Coachella Valley is located) and South Coast to designate the
Morongo Reservation as a separate nonattainment area for the one-hour
and 1997 eight-hour ozone standards. Please see EPA Response to SCAQMD
Comment 3, above.
CVAG Comment #4: The Coachella Valley has spent decades and
millions of dollars striving to achieve attainment for the
PM10 NAAQS and we have been patiently awaiting redesignation
of the valley for the federal PM10 standard. A separate air
quality planning area may adversely impact our efforts.
EPA Response to CVAG Comment #4: EPA's actions affect designations
and classifications for the one-hour and 1997 eight-hour ozone
standards. Our actions do not affect designations or classifications
associated with any other NAAQS. Moreover, elevated PM10
levels in Coachella Valley, unlike the South Coast where
PM10 exceedances are due primarily to PM10
precursor pollutants (derived from direct emissions of VOC,
NOX and other precursors), are ``strongly tied to local
fugitive dust problems.'' \13\ Thus, we have no reason to anticipate
new or more frequent exceedances of the PM10 standard in the
Coachella Valley due to the hypothetical increases in precursor VOC and
NOX emissions from construction and operation of new or
modified stationary sources on Morongo lands with PTEs between 10 and
25 tons per year.
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\13\ See page 8-10 of the 2003 South Coast Air Quality
Management Plan, August 2003. EPA approved the 2003 Coachella Valley
PM10 SIP on November 14, 2005 (70 FR 69081.)
---------------------------------------------------------------------------
CVAG Comment #5: In addition to the EPA's proposed action, CVAG
also does not want EPA to consider any reversal of its previous
decision which moved the Morongo Reservation from the Southeast Desert
AQMA to the South Coast Air Basin. Such a reversal would again
adversely impact our efforts to attain our federal air quality
standards. Since the Morongo Reservation experiences more severe ozone
air quality than the Coachella Valley, it needs to stay in the South
Coast Air Basin. Designations should not be made based on adverse
regulatory consequences on the affected constituent. Rather,
designations should be based on ambient air quality.
EPA Response to CVAG Comment #5: In our proposed rule, we proposed
to rescind the 2003 final action, as it pertains to the Morongo
Reservation for the one-hour ozone standard, and to revise the
boundaries of the Southeast Desert (Coachella Valley) and South Coast
to designate the Morongo Reservation as a separate nonattainment area
for the one-hour and 1997 eight-hour ozone standards. Our actions would
not affect the designations or classifications of state lands, nor
would they relocate the Morongo Reservation back to the Southeast
Desert where it had been located prior to our 2003 final action. Thus,
the ambient ozone conditions experienced on the Morongo Reservation
would not be relevant in determining whether the Coachella Valley
attained, or failed to attain, the ozone standards because only data
from
[[Page 58196]]
monitors located within Coachella Valley would be used for that
purpose. In terms of the Coachella Valley's potential emissions impacts
on Morongo lands, the predominantly westerly wind patterns place
Coachella Valley downwind of Morongo lands and thus Coachella Valley
sources do not significantly impact Morongo ozone air quality. For
additional details, please see page 6 of the technical support
document. With respect to the basis for our proposed error correction
and proposed revision to the boundaries, please see EPA Response to
SCAQMD Comment 1, above.
CVAG Comment #6: EPA does not have sufficient resources to ensure
ongoing compliance on Indian lands or adequate field enforcement staff
to monitor any new air quality planning area.
EPA Response to CVAG Comment #6: EPA's compliance and enforcement
program extends to sources subject to EPA permitting jurisdiction, and
to oversight of sources subject to the permitting jurisdiction of
states, air districts, and tribes (where tribes have authority to issue
such permits). The hypothetical prospect of new or modified stationary
sources at the Morongo Reservation, whether permitted by EPA or by the
Morongo Tribe (if and when approved for such permits), will have
essentially no effect on the scope of EPA's nationwide compliance and
enforcement program and thus essentially no effect on the resources
needed to adequately meet the demands of that program. Moreover, CVAG
provides no evidence that EPA resources are inadequate at the present
time to address compliance or enforcement issues associated with
emissions sources on the Morongo Reservation nor does CVAG explain how
our proposed actions will result in an increase in compliance or
enforcement costs to EPA.
Private Citizen Comment #1: The private citizen expresses support
for SCAQMD's and CVAG's comments on the proposed rule, and adds that
the proposed air quality planning area would be small, would be
dominated by a single entity that controls its own development process,
and has major air quality impacts in all directions affecting large
populations. Further, the private citizen speculates that, in contrast
to the current proposal, an air quality planning area dominated by a
single corporation, rather than a single Tribe, would never be
proposed.
EPA Response to Private Citizen Comment #1: Please see responses
above to comments from SCAQMD and CVAG. With respect to the size of the
proposed area and impacts to surrounding areas, the proposed rule takes
into account the minimal amount of emissions associated with activities
on the Morongo Reservation and corresponding minimal contribution to
regional ozone violations and we believe that in these circumstances it
is appropriate to assign particular weight to the jurisdictional
boundaries factor, and it is consistent with the principles for
designations of Indian country set forth in the Tribal Designation
Policy. See page 56 of the January 2, 2013 proposed rule. Lastly, we
find the analogy to a corporation to be inapposite due to the fact that
Tribes, unlike corporations, are sovereign entities and therefore have
inherent authority to control their own development process, much like
states do.
III. Final Action
Under CAA section 110(k)(6), EPA is taking final action to correct
an error in a 2003 final action that revised the boundaries between
nonattainment areas in Southern California designated under the CAA for
the one-hour ozone NAAQS. EPA has determined that the Agency erred in
the 2003 final action to change the boundary of the South Coast Air
Basin, which enlarged the basin to include all of the Banning Pass
area. In taking that action, EPA failed to consider the presence of
Indian country (i.e., the Morongo Reservation) located therein. EPA
thus failed to consider the status of the Indian country under the
appropriate statutory and regulatory provisions when it evaluated and
acted upon the State's boundary change request. EPA believes that its
error resulted in regulatory consequences for the Morongo Tribe that
justify making a correction. Thus, EPA is rescinding the 2003 final
action, as it pertains to the Morongo Reservation for the one-hour
ozone standard. This action does not affect the designations and
classifications of state lands.
Second, under CAA sections 107(d)(3)(A)-(C), 301(a) and 301(d), EPA
is taking final action to revise the boundaries of the Southeast Desert
to designate the Morongo Reservation as a separate nonattainment area
for the one-hour ozone standard and to classify the Morongo Reservation
as ``Severe-17,'' i.e., consistent with its prior classification when
it was included in the Southeast Desert.
Third, also under CAA sections 107(d)(3)(A)-(C), 301(a) and 301(d),
EPA is taking final action to revise the boundaries of the South Coast
to designate the Morongo Reservation as a separate nonattainment area
for the 1997 eight-hour ozone standard and to classify the Morongo
Reservation as ``Severe-17,'' i.e., consistent with its original
classification when it was included in the South Coast.\14\
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\14\ In our proposed rule (footnote 8 at 78 FR 53), we
indicated that if we finalize our proposed action to revise the
boundaries of the South Coast to designate the Morongo Reservation
as a separate nonattainment area for the 1997 eight-hour ozone
standard, EPA would withdraw our proposed action to reclassify the
Morongo Reservation to ``extreme'' for the 1997 eight-hour ozone
standard (74 FR 43654, August 27, 2009). (In 2010, we deferred final
reclassification with respect to the Morongo Reservation (and the
Pechanga Reservation) when we took final action to reclassify the
South Coast for the 1997 eight-hour ozone standard (75 FR 24409, May
5, 2010).) Given today's final action and consistent with our
statement from the proposed rule, EPA is withdrawing our 2009
proposed reclassification action to the extent it relates to the
Morongo Reservation in the Proposed Rules section of this Federal
Register.
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EPA is redesignating the Morongo Reservation as a separate air
quality planning area for the one-hour ozone and 1997 eight-hour ozone
standards based on our conclusion that factors such as air quality
data, meteorology, and topography do not definitively support inclusion
of the Reservation in either the South Coast or the Southeast Desert
air quality planning areas, that Morongo Reservation emissions sources
contribute minimally to regional ozone concentrations, and that the
jurisdictional boundaries factor should be given particular weight
under these circumstances.
As a result of these final actions, the boundaries of the Morongo
nonattainment areas for the one-hour and 1997 eight-hour ozone
standards will be the same as those for the Morongo nonattainment area
for the 2008 ozone standard. Lastly, as of the effective date of this
action, new or modified stationary sources proposed for construction on
the Morongo Reservation will be subject to the NSR major source
thresholds for ``severe-17'' ozone nonattainment areas, rather than the
more stringent thresholds for ``extreme'' ozone nonattainment areas.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 [58 FR 51735 (October 4, 1993)], the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may: (1) Have an annual
effect on the economy of $100 million or more or adversely affect in a
[[Page 58197]]
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or state,
local, or tribal governments or communities; (2) create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive Order. Under Executive Order
12866 (58 FR 51735, October 4, 1993), this action is not a
``significant regulatory action'' and therefore is not subject to
review by the Office of Management and Budget. For this reason, this
action is also not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001). This action merely
corrects an error in a previous rulemaking and redesignates certain air
quality planning area boundaries, and thereby reinstates certain CAA
designations and corresponding requirements to which the affected area
had previously been subject.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden means the total time, effort, or financial resources expended by
persons to generate, maintain, retain, or disclose or provide
information to or for a Federal agency. This includes the time needed
to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). An agency may
not conduct or sponsor, and a person is not required to respond to a
collection of information unless it displays a currently valid OMB
control number. The OMB control numbers for EPA's regulations in 40 CFR
are listed in 40 CFR part 9.
C. Regulatory Flexibility Act (RFA)
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that
this rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field. After considering the economic
impacts of today's rule on small entities, I certify that this action
will not have a significant economic impact on a substantial number of
small entities. This rule will not impose any direct requirements on
small entities. EPA is correcting an error in a previous rulemaking and
redesignating certain air quality planning area boundaries, and thereby
reinstating certain CAA designations and corresponding requirements to
which the affected area had previously been subject. This action is
intended to, among other purposes, facilitate and support the Morongo
Tribe's efforts to develop a tribal air permit program by re-instating,
within the Morongo Reservation, the less-stringent New Source Review
major source thresholds that had applied under the area's previous
``Severe-17'' classification for the one-hour ozone standard and by
aligning the boundaries for the Morongo nonattainment area for all
three ozone NAAQS (i.e., the one-hour, the 1997 eight-hour and the 2008
ozone standards).
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to state, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements. Today's rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for state, local, or
tribal governments or the private sector. The rule imposes no
enforceable duty on any state, local or tribal governments or the
private sector. In any event, EPA has determined that this rule does
not contain a Federal mandate that may result in expenditures of $100
million or more for state, local, and tribal governments, in the
aggregate, or the private sector in any one year. Thus, today's rule is
not subject to the requirements of sections 202 and 205 of the UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship
[[Page 58198]]
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.''
This action does not have Federalism implications because it does not
have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).
This action would merely correct an error in a previous rulemaking and
redesignate certain air quality planning area boundaries, and thereby
reinstate certain CAA designations and corresponding requirements to
which the affected area had previously been subject, and does not alter
the relationship or the distribution of power and responsibilities
established in the Clean Air Act.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' are defined in the Executive Order to include
regulations that have ``substantial direct effects on one or more
Indian tribes, on the relationship between the federal government and
the Indian tribes, or on the distribution of power and responsibilities
between the federal government and Indian tribes.'' Under section 5(b)
of Executive Order 13175, EPA may not issue a regulation that has
tribal implications, that imposes substantial direct compliance costs,
and that is not required by statute, unless the federal government
provides the funds necessary to pay the direct compliance costs
incurred by tribal governments, or EPA consults with tribal officials
early in the process of developing the proposed regulation. Under
section 5(c) of Executive Order 13175, EPA may not issue a regulation
that has tribal implications and that preempts tribal law, unless the
Agency consults with tribal officials early in the process of
developing the proposed regulation.
EPA has concluded that this action would have tribal implications.
In 2009, the Morongo Tribe requested that EPA create a separate area
for the Morongo Reservation in part due to the adverse regulatory
impacts resulting from the Agency's 2003 boundary change action. EPA
consulted with representatives of the Morongo Tribe prior to, and
following, the Tribe's 2009 boundary change request, concerning the
issues covered herein. In today's action, EPA is responding to the
Tribe's 2009 boundary change request and is taking final action that
would eliminate the adverse regulatory impacts arising from EPA's 2003
boundary change action. As described herein, we agree with the Tribe
that the boundary should be corrected to reflect their concerns. This
action will neither impose substantial direct compliance costs on
tribal governments, nor preempt tribal law. Rather, the proposed action
would relieve the Tribe of the additional requirements that flowed from
the boundary change and corresponding change in CAA designations and
classifications. Thus, the requirements of sections 5(b) and 5(c) of
the Executive Order do not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. This rule is
not subject to Executive Order 13045 ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), because it is not economically significant as defined in
Executive Order 12866, and because the Agency does not have reason to
believe the environmental health or safety risks addressed by this rule
present a disproportionate risk to children.
H. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards. This rule does
not involve establishment of technical standards, and thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply to this
action.
I. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this action will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
directly affect the level of protection provided to human health or the
environment. In this action, EPA is taking final action to correct an
error in a previous rulemaking and redesignate certain air quality
planning area boundaries, and thereby reinstate certain CAA
designations and corresponding requirements to which the affected area
had previously been subject.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and
[[Page 58199]]
the Comptroller General of the United States prior to publication of
the rule in the Federal Register. A major rule cannot take effect until
60 days after it is published in the Federal Register. This action is
not a ``major rule'' as defined by 5 U.S.C. 804(2).
K. Petitions for Review of this Action
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by November 22, 2013. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, Intergovernmental
relations, National parks, Ozone, Wilderness areas.
Dated: September 4, 2013.
Jared Blumenfeld,
Regional Administrator,
Region IX.
40 CFR part 81 is amended as follows:
PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES
0
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart C--[AMENDED]
0
2. Section 81.305 is amended as follows:
0
a. In the table for ``California-Ozone (1-Hour Standard)'' by revising
the entry for ``Los Angeles-South Coast Air Basin Area'', by adding a
new entry for ``Morongo Band of Mission Indians'' before the ``Monterey
Bay Area'' entry, and by adding footnotes 5 and 6;
0
b. In the table for ``California--1997 8-Hour Ozone NAAQS (Primary and
Secondary)'' by revising the entries for ``Los Angeles-South Coast Air
Basin, CA'', by adding a new entry for ``Morongo Band of Mission
Indians'' before the ``Los Angeles and San Bernardino Counties (Western
Mojave Desert), CA'' entry, and by adding footnotes (d) and (e).
The revisions and additions read as follows:
Sec. 81.305 California.
* * * * *
California--Ozone (1-Hour Standard) \4\
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area --------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Los Angeles-South Coast Air 11/15/90 Nonattainment.......... 11/15/90 Extreme.
Basin Area \5\.
Los Angeles County (part).. 11/15/90 Nonattainment.......... 11/15/90 Extreme.
That portion of Los
Angeles County which
lies south and west of
a line described as
follows:
1. Beginning at the Los
Angeles-San Bernardino
County boundary and
running west along the
Township line common
to Township 3 North
and Township 2 North,
San Bernardino Base
and Meridian;
2. then north along the
range line common to
Range 8 West and Range
9 West;
3. then west along the
Township line common
to Township 4 North
and Township 3 North;
4. then north along the
range line common to
Range 12 West and
Range 13 West to the
southeast corner of
Section 12, Township 5
North and Range 13
West;
5. then west along the
south boundaries of
Sections 12, 11, 10,
9, 8, and 7, Township
5 North and Range 13
West to the boundary
of the Angeles
National Forest which
is collinear with the
range line common to
Range 13 West and
Range 14 West;
6. then north and west
along the Angeles
National Forest
boundary to the point
of intersection with
the Township line
common to Township 7
North and Township 6
North (point is at the
northwest corner of
Section 4 in Township
6 North and Range 14
West);
7. then west along the
Township line common
to Township 7 North
and Township 6 North;
8. then north along the
range line common to
Range 15 West and
Range 16 West to the
southeast corner of
Section 13, Township 7
North and Range 16
West;
9. then along the south
boundaries of Sections
13, 14, 15, 16, 17,
and 18, Township 7
North and Range 16
West;
10. then north along
the range line common
to Range 16 West and
Range 17 West to the
north boundary of the
Angeles National
Forest (collinear with
the Township line
common to Township 8
North and Township 7
North);
[[Page 58200]]
11. then west and north
along the Angeles
National Forest
boundary to the point
of intersection with
the south boundary of
the Rancho La Liebre
Land Grant;
12. then west and north
along this land grant
boundary to the Los
Angeles-Kern County
boundary.
Orange County.............. 11/15/90 Nonattainment.......... 11/15/90 Extreme.
Riverside County (part).... 11/15/90 Nonattainment.......... 11/15/90 Extreme.
That portion of
Riverside County which
lies to the west of a
line described as
follows:
1. Beginning at the
Riverside-San Diego
County boundary and
running north along
the range line common
to Range 4 East and
Range 3 East, San
Bernardino Base and
Meridian;
2. then east along the
Township line common
to Township 8 South
and Township 7 South;
3. then north along the
range line common to
Range 5 East and Range
4 East;
4. then west along the
Township line common
to Township 6 South
and Township 7 South
to the southwest
corner of Section 34,
Township 6 South,
Range 4 East;
5. then north along the
west boundaries of
Sections 34, 27, 22,
15, 10, and 3,
Township 6 South,
Range 4 East;
6. then west along the
Township line common
to Township 5 South
and Township 6 South;
7. then north along the
range line common to
Range 4 East and Range
3 East;
8. then west along the
south boundaries of
Sections 13, 14, 15,
16, 17, and 18,
Township 5 South,
Range 3 East;
9. then north along the
range line common to
Range 2 East and Range
3 East to the
Riverside-San
Bernardino County
line.
San Bernardino County 11/15/90 Nonattainment.......... 11/15/90 Extreme.
(part).
That portion of San
Bernardino County
which lies south and
west of a line
described as follows:
1. Beginning at the San
Bernardino-Riverside
County boundary and
running north along
the range line common
to Range 3 East and
Range 2 East, San
Bernardino Base and
Meridian;
2. then west along the
Township line common
to Township 3 North
and Township 2 North
to the San Bernardino-
Los Angeles County
boundary.
Morongo Band of Mission Indians 11/15/90 Nonattainment.......... 11/15/90 Severe-17.
\6\.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ This date is October 18, 2000 unless otherwise noted.
* * * * * * *
\4\ The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in California. The Monterey Bay,
San Diego, and Santa Barbara-Santa Maria-Lompoc areas are maintenance areas for the 1-hour NAAQS for purposes
of 40 CFR part 51, subpart X.
\5\ Excludes Morongo Band of Mission Indians' Indian country in Riverside County.
\6\ Includes Indian country of the tribe listed in this table. Information pertaining to areas of Indian country
in this table is intended for CAA planning purposes only and is not an EPA determination of Indian country
status or any Indian country boundary. EPA lacks the authority to establish Indian country land status, and is
making no determination of Indian country boundaries, in this table.
* * * * *
California--1997 8-Hour Ozone NAAQS (Primary and Secondary)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation \a\ Classification
Designated -------------------------------------------------------------------------------------------------------
area Date \1\ Type Date \1\ Type
------------------------------------------------------------------------------------------------------------------
* * * * * * *
Los ......................................... Nonattainme (\2\)............................ Subpart 2/
Angeles-- nt Extreme.
South
Coast Air
Basin,
CA: \d\
Los ......................................... Nonattainme (\2\)............................ Subpart 2/
Angel nt Extreme.
es
Count
y
(part
).
[[Page 58201]]
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r
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t
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Orange ......................................... Nonattainme (\2\)............................ Subpart 2/
Count nt Extreme.
y.
Rivers ......................................... Nonattainme (\2\)............................ Subpart 2/
ide nt Extreme.
Count
y
(part
).
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3
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1
4
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5
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6
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1
7
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n
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o
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t
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o
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e
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o
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o
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.
Pe ......................................... Nonattainme (\2\)............................ Subpart 2/
c nt Severe-17.
h
a
n
g
a
R
e
s
e
r
v
a
t
i
o
n
\
c
\.
San ......................................... Nonattainme (\2\)............................ Subpart 2/
Berna nt Extreme.
rdino
Count
y
(part
).
Th
a
t
p
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:
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e
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3
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a
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d
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a
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g
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2
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a
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t
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S
a
n
B
e
r
n
a
r
d
i
n
o
B
a
s
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a
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d
M
e
r
i
d
i
a
n
;
t
h
e
n
w
e
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t
a
l
o
n
g
t
h
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o
w
n
s
h
i
p
l
i
n
e
c
o
m
m
o
n
t
o
T
o
w
n
s
h
i
p
3
N
o
r
t
h
a
n
d
T
o
w
n
s
h
i
p
2
N
o
r
t
h
t
o
t
h
e
S
a
n
B
e
r
n
a
r
d
i
n
o-
L
o
s
A
n
g
e
l
e
s
C
o
u
n
t
y
b
o
u
n
d
a
r
y
.
Morongo ......................................... Nonattainme ................................. Subpart 2/
Band of nt Severe-17.
Mission
Indians
\e\
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
* * * * * * *
\c\ The use of reservation boundaries for this designation is for purposes of CAA planning only and is not intended to be a federal determination of the
exact boundaries of the reservations. Nor does the specific listing of the Tribes in this table confer, deny, or withdraw Federal recognition of any
of the Tribes listed or not listed.
\d\ Excludes Morongo Band of Mission Indians' Indian country in Riverside County.
\e\ Includes Indian country of the tribe listed in this table. Information pertaining to areas of Indian country in this table is intended for CAA
planning purposes only and is not an EPA determination of Indian country status or any Indian country boundary. EPA lacks the authority to establish
Indian country land status, and is making no determination of Indian country boundaries, in this table.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ This date is June 4, 2010.
[[Page 58202]]
* * * * *
[FR Doc. 2013-22873 Filed 9-20-13; 8:45 am]
BILLING CODE 6560-50-P