[Federal Register Volume 80, Number 3 (Tuesday, January 6, 2015)]
[Proposed Rules]
[Pages 436-449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-30830]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 49 and 81
[EPA-R09-OAR-2014-0869; FRL-9921-35-Region-9]
Approval of Tribal Implementation Plan and Designation of Air
Quality Planning Area; Pechanga Band of Luise[ntilde]o Mission Indians
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
revise the boundaries of the Southern California air quality planning
areas to designate the reservation of the Pechanga Band of
Luise[ntilde]o Mission Indians of the Pechanga Reservation, California
as a separate air quality planning area for the 1997 8-hour ozone
National Ambient Air Quality Standard. The EPA is also proposing to
approve the Tribe's tribal implementation plan for maintaining the 1997
ozone standard within the Pechanga Reservation through 2025 because it
meets the Clean Air Act's and the EPA's requirements for maintenance
plans. Lastly, based in part on the proposed approval of the
maintenance plan, EPA is proposing to grant a request from the Tribe to
redesignate the Pechanga Reservation ozone nonattainment area to
attainment for the 1997 8-hour ozone standard because the area meets
the statutory requirements for redesignation under the Clean Air Act.
DATES: Written comments must be received on or before February 5, 2015.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2014-0869, by one of the following methods:
[[Page 437]]
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: [email protected].
3. Fax: 415-947-3579.
4. Mail or deliver: Ken Israels (Mailcode AIR-8), U.S.
Environmental Protection Agency, Region IX, 75 Hawthorne Street, San
Francisco, CA 94105-3901.
Instructions: All comments will be included in the public docket
without change and may be made available online at http://www.regulations.gov, including any personal information provided,
unless the comment includes Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.
Information that you consider CBI or otherwise protected should be
clearly identified as such and should not be submitted through the
http://www.regulations.gov or email. http://www.regulations.gov is an
anonymous access system, and EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send email directly to EPA, your email address will be automatically
captured and included as part of the public comment. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment.
Docket: The index to the docket for this action is available
electronically at http://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., CBI). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed
directly below.
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 the EPA.
Table of Contents
I. Background
A. Pechanga Band of Luise[ntilde]o Mission Indians of the
Pechanga Reservation
B. National Ambient Air Quality Standards
C. Air Quality Implementation Plans, Area Designations and
Classifications
D. Pechanga Tribe's 2009 Petition for Boundary Change and 2014
Submittal of Maintenance Plan and Redesignation Request
II. Boundary Change Request
A. Legal Authority
B. Proposed Boundary Change Making the Pechanga Reservation a
Separate Nonattainment Area for the 1997 8-Hour Ozone Standard
III. Requirements for Redesignation
A. Procedural Requirements
B. Substantive Requirements
IV. Evaluation of the Pechanga Tribe's Redesignation Request
A. Determination That the Area Has Attained the Applicable NAAQS
B. The Area Must Have a Fully Approved Implementation Plan
Meeting Requirements Applicable for Purposes of Redesignation Under
Section 110 and Part D
1. Basic Implementation Plan Requirements Under CAA Section 110
2. Part D Requirements
C. The Area Must Show the Improvement in Air Quality is Due to
Permanent and Enforceable Emission Reductions
D. The Area Must Have a Fully Approved Maintenance Plan Under
CAA Section 175A
1. Attainment Inventory
2. Maintenance Demonstration
3. Monitoring Network
4. Verification of Continued Attainment
5. Contingency Provisions
V. Summary of Proposed Action and Request for Public Comment
VI. Statutory and Executive Order Reviews
I. Background
A. Pechanga Band of Luise[ntilde]o Mission Indians of the Pechanga
Reservation
The Pechanga Band of Luise[ntilde]o Mission Indians of the Pechanga
Reservation (``Pechanga Tribe or ``Tribe'') is a federally recognized
tribe whose reservation (Pechanga Reservation'' or ``reservation'')
straddles the boundary between western Riverside County and northern
San Diego County where Temecula Valley meets the complex topography
that forms the boundary between these two counties. See figure 1-1 of
the Tribe's ``Ozone Redesignation Request and Maintenance Plan for
Pechanga Band of Luise[ntilde]o Mission Indians of the Pechanga
Reservation Nonattainment Area (May 2014)'' for an illustration of the
boundaries of the Pechanga Reservation.
The Pechanga Reservation consists of 6,700 acres located in the
northwestern portion of the Cleveland National Forest, ranging between
1,100 and 2,600 feet in elevation and is home to approximately 800
full-time residents.\1\ Most of the Pechanga Reservation is located
north of the Riverside County-San Diego County boundary in Riverside
County, just south of the City of Temecula, but a small portion of the
reservation is located south of the boundary in San Diego County. The
Pechanga Reservation has one major stationary source of emissions, the
Pechanga Casino and Resort, within the reservation boundaries.\2\ Other
sources of emissions include local traffic to and from the casino and
resort, parking structures, a golf course, a gas station, and a
recreational vehicle (RV) park.
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\1\ See EPA's 2008 8-hour ozone standard designations Technical
Support Document (TSD) found at http://www.epa.gov/groundlevelozone/designations/2008standards/documents/R9_CA_TSD_FINAL.pdf
\2\ In this context, given the designation and classification of
the area for ozone, ``major source'' refers to a stationary source
with a potential to emit greater than 10 tons per year of either
ozone precursor (i.e., volatile organic compounds or oxides of
nitrogen).
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In 2013, the EPA determined that the Pechanga Tribe is eligible for
treatment in the same manner as a state (also referred to as ``TAS'')
for purposes of CAA sections 105, 107(d), 126, and 505(a)(2).\3\ More
recently, the EPA determined that the Tribe is eligible for TAS for
purposes of CAA sections 110 and 175A and the submitted maintenance
plan.\4\ As such, the Pechanga Tribe is authorized to request EPA to
redesignate an area under section 107(d) and is authorized to submit a
section 175A maintenance plan for review and approval or disapproval
under section 110(k). EPA reviews such a maintenance plan in accordance
with the same provisions for review set forth in CAA section 110 for
section 175A maintenance plans submitted by a state. See CAA section
110(o).
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\3\ Letter from Jared Blumenfeld, Regional Administrator, EPA
Region IX, to Mark Macarro, Tribal Chairman, Pechanga Tribe, dated
July 23, 2013.
\4\ Letter from Jared Blumenfeld, Regional Administrator, EPA
Region IX, to Mark Macarro, Tribal Chairman, Pechanga Tribe, dated
December 4, 2014.
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B. National Ambient Air Quality Standards
The Clean Air Act (CAA or ``Act'') requires the EPA to establish
National Ambient Air Quality Standards (NAAQS or ``standards'') for
pollutants that ``may reasonably be anticipated to endanger public
health and welfare'' and to develop a primary and secondary standard
for each NAAQS. The primary standard is designed to protect human
health with an adequate margin of safety and the secondary standard is
designed to protect public welfare and the environment. The EPA has set
NAAQS for six common air pollutants, referred to as ``criteria''
pollutants: Ozone,
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carbon monoxide, nitrogen dioxide, sulfur dioxide, particulate matter,
and lead.
In 1979, the EPA promulgated the first ozone \5\ standard of 0.12
parts per million (ppm), averaged over a 1-hour period (``1-hour ozone
standard''), to replace an earlier photochemical oxidant standard. In
1997, the EPA revised the ozone standard to 0.08 ppm, 8-hour average
(``1997 ozone standard''), and then, in 2008, lowered the 8-hour ozone
standard to 0.075 ppm (``2008 ozone standard''). This proposed action
primarily relates to the designations and classifications of the
Pechanga Reservation for the 1997 ozone standard, but, as explained
below, would have implications for the 1-hour ozone standard as well.
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\5\ 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.
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C. Air Quality Implementation Plans, Area Designations and
Classifications
Under section 110 of the CAA, states must adopt and submit state
implementation plans (SIPs) to implement, maintain, and enforce the
NAAQS. SIPs do not as a general matter apply within Indian
reservations, but eligible tribes may (but are not required to) choose
to adopt and submit tribal implementation plans (TIPs) that serve the
same types of functions in areas under tribal jurisdiction as SIPs
serve within areas subject to state jurisdiction. Where necessary or
appropriate to protect air quality, EPA must establish without
unreasonable delay Federal implementation plans (FIPs) where a tribe
does not do so. See 40 CFR 49.11.
Under the 1977 amendments to the CAA, EPA designated all areas of
the country as attainment, nonattainment, or unclassifiable for each of
the NAAQS. See 43 FR 8962 (March 3, 1978). These designations were
generally based on monitored air quality values compared to the
applicable standard. Under the 1990 amendments to the CAA, ozone
nonattainment areas were further classified as ``Marginal,''
``Moderate,'' ``Serious,'' ``Severe'' or ``Extreme'' depending upon the
severity of the ozone problem.\6\
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\6\ Area designations and classifications are codified in 40 CFR
part 81; area designations and classifications for California are
codified at 40 CFR 81.305.
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States with nonattainment areas are subject to the requirements to
adopt and submit SIP revisions that, among other things, impose
stringent requirements on new or modified major stationary sources
(referred to as major source Nonattainment New Source Review
(``NNSR'')) and provide for attainment of the applicable ozone standard
by the applicable attainment date. Areas with higher ozone
classifications are given more time to attain the applicable ozone
standard than areas with lower ozone classifications, but they are
subject to a greater number, and more stringent, requirements,
including those related to major source NNSR.
Historically, the Pechanga Reservation was included in the air
quality planning area referred to as the Los Angeles-South Coast Air
Basin Area (``South Coast'').\7\ Under the 1990 CAA amendments, the
South Coast was classified as an ``Extreme'' ozone nonattainment area
for the 1-hour ozone standard. See 56 FR 56694 (November 6, 1991).
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\7\ The South Coast includes Orange County, the southwestern
two-thirds of Los Angeles County, southwestern San Bernardino
County, and western Riverside County. See 40 CFR 81.305.
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In 2004, the EPA promulgated area designations and classifications
for the 1997 ozone standard. The EPA designated the South Coast as a
``Severe-17'' nonattainment area.\8\ See 69 FR 23858 (April 30, 2004).
In 2005, EPA revoked the 1-hour ozone standard, but under EPA's
implementation rules governing the transition from the 1-hour ozone
standard to the 1997 ozone standard (see 40 CFR 51.905), certain
requirements based on an ozone nonattainment area's classification for
the 1-hour ozone standard, continue to apply within areas that are
designated as nonattainment for the 1997 ozone standard, such as the
South Coast. The requirements that apply to an area designated as
nonattainment for the 1997 ozone standard by virtue of the area's
classification under the 1-hour ozone standard are referred to as
``anti-backsliding'' measures. The ``anti-backsliding'' measures are no
longer applicable when the area is redesignated to attainment for the
1997 ozone NAAQS.
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\8\ With respect to the 1997 8-hour ozone standard, areas given
the ``Severe'' ozone classification were split, based on the 8-hour
ozone design value at the time of designation, between those for
which the applicable attainment date is no later than 15 years from
designation (``Severe-15'') and those for which the applicable
attainment date is no later than 17 years from designation
(``Severe-17''). See 40 CFR 51.903, table 1.
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In 2009, we proposed to grant the State of California's request to
reclassify the portion of the South Coast subject to state jurisdiction
from ``Severe-17'' to ``Extreme'' for the 1997 ozone standard, and to
reclassify Indian country \9\ within the South Coast consistent with
the state's request. See 74 FR 43654 (August 27, 2009). We finalized
the reclassification action in 2010 as proposed, with the exception of
the reservations of two specific tribes, for which we deferred final
action. See 75 FR 24409 (May 5, 2010).\10\ The Pechanga Reservation was
one of the two areas within the South Coast for which we deferred
taking final reclassification action. If we finalize this action as
proposed, then we will withdraw our proposed reclassification of the
Pechanga Reservation to ``Extreme'' for the 1997 ozone standard as
moot.
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\9\ ``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.''
\10\ We deferred final action to complete our review of boundary
change requests we had received from the two tribes. With respect to
the Pechanga Tribe, this proposed boundary change constitutes the
EPA's response to its request.
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In 2008, a federal land transfer pursuant to an Act of Congress
modified the boundaries of the Pechanga Reservation to increase the
previous reservation area by approximately 1,100 acres, including 119
acres in San Diego County. The San Diego County portion of the Pechanga
Reservation is located within the ``San Diego County (part)'' ozone
area for the 1997 ozone standard. In 2013, the EPA granted the State of
California's request to redesignate the San Diego County 1997 8-hour
ozone area, which, as noted above, includes the portion of the Pechanga
Reservation in San Diego County, to attainment for that standard. See
78 FR 33230 (June 4, 2013). That portion of the Pechanga Reservation is
thus already designated as attainment for the 1997 8-hour ozone
standard.
Lastly, in 2012, the EPA designated the Pechanga Reservation (both
the Riverside and San Diego County portions) as a separate
nonattainment area for the 2008 ozone standard and classified the area
as ``Moderate'' for that standard. See 77 FR 30088 (May 21, 2012).
[[Page 439]]
D. Pechanga Tribe's 2009 Petition for Boundary Change and 2014
Submittal of Maintenance Plan and Redesignation Request
On June 23, 2009, the Pechanga Tribe submitted a petition to the
EPA to create a separate ozone nonattainment area for the Pechanga
Indian Reservation, or, alternatively, to move the northern boundary of
the San Diego County air quality planning area for the 1997 ozone
standard to include the entire extent of the reservation, thus removing
it from the South Coast.\11\ As noted above, we have already designated
the Pechanga Reservation as a separate nonattainment area for the 2008
ozone NAAQS. In section II of this document, we evaluate the Tribe's
2009 request with respect to the 1997 ozone standard, and are proposing
an action that, if finalized, will constitute our complete response to
the Tribe's 2009 petition.
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\11\ See letter from Mark Macarro, Tribal Chairman, Pechanga
Tribe, to Deborah Jordan, Director, Air Division, EPA Region IX,
dated June 23, 2009.
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On May 9, 2014, citing the Pechanga Tribe's June 23, 2009 petition
to establish a separate Pechanga ozone nonattainment area, the Pechanga
Tribe submitted a request to the EPA to redesignate the Pechanga ozone
nonattainment area to attainment for the 1997 8-hour ozone NAAQS. With
the redesignation request, the Pechanga Tribe included a document
titled ``Ozone Redesignation Request and Maintenance Plan for Pechanga
Band of Luiseno Mission Indians of the Pechanga Reservation
Nonattainment Area'' (``Pechanga Ozone Maintenance Plan''). Since then,
the Pechanga Tribe has applied for, and been granted, TAS status for
CAA sections 110 and 175A for the purpose of submitting and
implementing a maintenance plan for the 1997 ozone standard, and on
November 4, 2014, the Pechanga Tribe re-submitted the Pechanga Ozone
Maintenance Plan for approval to EPA as a TIP. As described in detail
in section IV of this document, we are proposing to grant the Pechanga
Tribe's redesignation request and to approve the Pechanga Ozone
Maintenance Plan.
II. Boundary Change Request
A. Legal Authority
Section 107(d)(3)(D) provides that a state may submit to the EPA a
revised designation of any area or portion thereof within the State.
Such revised designations are referred to as ``redesignations.'' A
boundary change is one type of redesignation, and a change in status
(e.g., from ``nonattainment'' to ``attainment'') is another type of
redesignation. In this document, we refer to our proposed change in
boundaries as a ``boundary change'' instead of a ``redesignation'' to
reduce confusion with the other type of redesignation (i.e., change in
status) that is also proposed herein.
The EPA has granted the Pechanga Tribe TAS status for CAA section
107(d) and thus we have reviewed the Tribe's June 23, 2009 boundary
change request as a request under section 107(d)(3)(D).\12\ We review
such requests under CAA section 107(d)(3)(D) using the same criteria we
would use if the EPA were initiating the boundary change under CAA
section 107(d)(3)(A), i.e., ``on the basis of air quality data,
planning and control considerations, or any other air quality-related
considerations the Administrator deems appropriate.'' In contrast,
redesignations involving changes in status, specifically from
``nonattainment'' to ``attainment'' are governed by the criteria in
section 107(d)(3)(E), which are discussed in more detail in section III
of this document.
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\12\ We recognize that the Pechanga Tribe did not have TAS
status at the time of the June 23, 2009 submittal, but we believe
that our action on the June 23, 2009 submittal at this time should
reflect the subsequent grant of the Tribe's application for TAS
status for section 107(d) in 2013.
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For the reasons set forth below, we are proposing to revise the
boundaries of the South Coast and San Diego air quality planning areas
to establish a separate air quality planning area for the Pechanga
Reservation for the 1997 8-hour ozone standard.
B. Proposed Boundary Change Making the Pechanga Reservation a Separate
Nonattainment Area for the 1997 8-Hour Ozone Standard
As noted above, EPA reviews requests, such as the Pechanga Tribe's
June 23, 2009 request, for a boundary change ``on the basis of air
quality data, planning and control considerations, or any other air
quality-related considerations the Administrator deems appropriate.''
In the context of requests from tribes for boundary changes, we have
developed more specific guidance consistent with the general statutory
considerations in CAA section 107(d)(3)(A). The specific guidance is
titled, ``Policy for Establishing Separate Air Quality Designations for
Areas in Indian Country'' (``Tribal Designation Policy'').\13\ The
Tribal Designation Policy identifies the specific air quality data,
planning and control considerations, and other air quality-related
considerations that the EPA deems appropriate in the context of
reviewing requests from a tribe for a change in the boundaries of the
air quality planning area in which the tribe is located.
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\13\ 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.'' A copy of the Tribal Designation Policy can be found at
http://www.epa.gov/ozonedesignations/guidance.htm.
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Where the 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 the EPA will make decisions regarding these
requests on a case-by-case basis after consultation with the tribe. As
a matter of policy, the EPA believes that it is important for tribes to
submit the following information when requesting a boundary change: A
formal request from an authorized tribal official; documentation of
Indian country boundaries to which the air quality designation request
applies; concurrence with EPA's intent to include the identified tribal
lands in the 40 CFR part 81 table should the EPA separately designate
the area; and a multi-factor analysis to support the request. See
Tribal Designation Policy, pages 3 and 4.
The Tribal Designation Policy states that the EPA intends to make
decisions regarding a tribe's request for a separate air quality
designation after all necessary consultation with the tribe and, as
appropriate, with the involvement of other affected entities, and after
evaluating whether there is sufficient information to support such a
designation. Boundary change requests for a separate air quality
designation should include 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.\14\
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\14\ 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 the EPA to
consider.
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The Pechanga Tribe's boundary change request, submitted by the
Tribe's Chairman on June 23, 2009, included a multi-factor analysis
addressing air quality data, emissions data, meteorology, geography/
topography, and jurisdictional boundaries. As such, although submitted
prior to release of the Tribal Designation Policy, the Pechanga Tribe's
request for a boundary change to create a separate ozone
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nonattainment area represents the type of formal, official request and
supporting information called for in the policy. Moreover, the Tribe's
June 23, 2009 submittal was supplemented by the Tribe with more recent
information in the Pechanga Ozone Maintenance Plan.
Air Quality Data: For this factor, as discussed below, we
considered 8-hour ozone design values for air quality monitors in and
near the Pechanga Reservation, based on the 2011-2013 period (i.e., the
2013 design value). A monitor's design value is the metric or statistic
that indicates whether that monitor attains a specific air quality
standard. The 1997 ozone NAAQS is met at a monitor when the annual
fourth-highest daily maximum 8-hour average concentration, averaged
over 3 years, is 0.08 ppm or less. See 40 CFR 50.10. A design value is
only valid if minimum data completeness criteria are met. See 40 CFR
part 50, appendix I. Monitors that are eligible for providing design
value data include monitors that are sited in accordance with 40 CFR
part 58, appendix D (section 4.1), are federal reference method (FRM)
or federal equivalent method (FEM) monitors, and meet the requirements
of 40 CFR part 58, appendix A.
The Pechanga Tribe began operation of an FEM ozone monitor on the
reservation in June 2008, but the data does not meet the completeness
criteria for the 2011-2013 period. However, there is another FEM ozone
monitoring site in the vicinity of the reservation. The monitoring
site, referred to as the ``Temecula'' site, is operated by the South
Coast Air Quality Management District (SCAQMD) at a location
approximately 10 miles north of the reservation, and as explained
further in section IV.A of this document, the data from the Temecula
site is considered representative of ozone conditions at the Pechanga
Reservation and is complete for 2011-2013.
The 2013 design value based on data from the Temecula site is 0.077
ppm, which, given the representativeness of the Temecula data, means
that current air quality at the Pechanga Reservation meets the 1997
ozone standard of 0.08 ppm.\15\ In contrast, ozone concentrations are
higher farther north in Riverside County and lower farther south in San
Diego County. For instance, the next closest ozone monitoring site in
Riverside County is the Lake Elsinore site, which is about 20 miles
northwest of the reservation and which has a design value for 2011-2013
of 0.086 ppm, and which violates the 1997 ozone standard. The next
closest ozone monitoring site in San Diego County is the Escondido
site, which is about 20 miles south of the reservation and which has a
design value for the same period of 0.069 ppm. Thus, in this portion of
southern Riverside County and northern San Diego County, ozone
concentrations generally decrease from north to south, but vary less
moving east and west from the reservation.\16\
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\15\ In fact, the Pechanga data are consistently less than or
equal to the Temecula and Lake Elsinore data for the 2011-2013
timeframe.
\16\ See pages II-2-28 through II-2-37 in Appendix II (``Current
Air Quality'') of the South Coast Air Quality Management District's
2012 Air Quality Management Plan (February 2013) for figures
illustrating the spatial distribution of elevated ozone
concentrations in the South Coast.
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Emissions-Related Data: For this factor, we reviewed documentation
provided in Pechanga's June 23, 2009 boundary change request and more
recent information submitted with the Pechanga Ozone Maintenance Plan,
as well as the Tribe's application for a ``part 71'' (i.e., title V)
permit for the Pechanga Resort and Casino, and related annual emissions
reports.\17\ Based on information contained in the cited references, we
estimate that current actual emissions from sources operating on the
Pechanga Reservation are approximately 5.8 tons per year (tpy) of VOC
and 10.7 tpy of NOX. Sources that contribute to this total
include stationary sources operating at the casino, such as a gas
turbine, boilers, emergency generators, and a fire water pump; and
emergency generators operating at the government center, the fire
station, the gasoline station/mini-mart, and at various wells. Also
contributing to the total are area sources such as consumer product use
and gasoline loading, storage, and dispensing at the gasoline station/
mini-mart. Lastly, the inventory includes emissions from on-road and
nonroad motor vehicle use on the reservation.
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\17\ The Pechanga Resort and Casino is considered a ``major''
source for the purposes of title V of the Act based on the
facility's potential to emit NOX emissions at levels
greater than the applicable major source NSR threshold.
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In contrast, current ozone precursor emissions within the South
Coast nonattainment area are approximately 230,000 tpy of VOC and
190,000 tpy of NOX.\18\ To the south, current ozone
precursor emissions within the San Diego maintenance area are
approximately 46,000 tpy of VOC and 42,000 tpy of NOX.\19\
In terms of percentages, Pechanga-related emissions are approximately
0.003 percent and 0.006 percent of South Coast emissions of VOC and
NOX, respectively, and are approximately 0.01 percent and
0.03 percent of San Diego County emissions of VOC and NOX,
respectively.
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\18\ Year 2012 emissions for the South Coast Air Basin are from
CARB's Almanac Emissions Projection Data (Published in 2013).
\19\ Year 2012 emissions for San Diego County are from CARB's
Almanac Emissions Projection Data (Published in 2013).
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With respect to traffic and commuting patterns, operations at the
Pechanga Resort and Casino generate vehicle trips in the region from
patrons and employees, but no transportation corridors pass through the
reservation. Interstate 15 and State Route 79 pass a couple of miles
west and north, respectively, of the developed portions of the
reservation. As far as population density and degree of urbanization,
we note that, with the exception of the immediate vicinity of the
resort and casino, the Pechanga Reservation is largely undeveloped and
sparsely populated in comparison with highly developed land to the
north in Temecula Valley. In fact, the degree of urbanization at the
Pechanga Reservation is similar to the sparsely-populated region to the
south in northern San Diego County.
Meteorology: EPA evaluated available meteorological data to help
determine how meteorological conditions, such as weather, transport
patterns and stagnation conditions, would affect the fate and transport
of precursor emissions contributing to ozone formation. Pechanga is
located about 25 miles inland and experiences similar complex
meteorology and transport patterns as inland parts of western Riverside
County and western San Diego County. Transport of ozone and its
precursors is prevalent from the South Coast to San Diego County under
several different meteorological regimes one of which transports
emissions from metropolitan Los Angeles to San Diego County along the
Interstate 15 corridor.\20\ Given the location of the Pechanga
Reservation near the Interstate 15 corridor and along the boundary
between the Riverside County portion of the South Coast and San Diego
County, the transport of ozone and its precursors from metropolitan Los
Angeles also influences air quality at the reservation and is the
primary cause of historic ozone violations at the reservation.
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\20\ Bigler-Engler, V, 1995: Analysis of an Ozone Episode during
the San Diego Air Quality Study: The Significance of Transport
Aloft. Journal of Applied Meteorology, 34, 1863-1875). Luria, M,
2005: Local and Transported pollution of San Diego, California.
Atmospheric Environment, 39, 6765-6776. Boucouvala, D, 2003:
Analysis of transport patterns during an SCOS97-NARSTO episode.
Atmospheric Environment, 37 Supplement No. 2, S73-S94.
Meteorological and Photochemical Modeling for the San Diego County
2007, 8 Hour Ozone State Implementation Plan.
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[[Page 441]]
Geography/Topography: The Pechanga Reservation consists of 6,700
acres located in northwestern portion of the Cleveland National Forest,
ranging between 1,100 and 2,600 feet in elevation. The reservation lies
primarily in Riverside County along the boundary separating Riverside
and San Diego counties, but a small portion of the reservation extends
across the county-line into San Diego County. The terrain along the
Riverside-San Diego county boundary is complex, but there are no
significant topographic barriers to air flow, suggesting that the
Pechanga Reservation may experience similar air quality to the
surrounding air quality planning areas.
Jurisdictional Boundaries: For ozone planning purposes, the
Pechanga Reservation is currently split for the 1-hour ozone and 1997
ozone standards between the South Coast and the San Diego County air
quality planning areas, but is a separate air quality planning area for
the 2008 ozone NAAQS. With respect to air pollution control, the South
Coast, with the exception of the Pechanga Reservation and certain other
areas of Indian country, lies within the jurisdiction of the SCAQMD,
and San Diego County, also with the exception of the Pechanga
Reservation and certain other areas of Indian country, lies within the
jurisdiction of the San Diego County Air Pollution Control District
(SDCAPCD). The EPA has jurisdiction under the CAA over air pollution
sources at the Pechanga Reservation although the Tribe may develop and
implement its own air program, and displace EPA's program, or portion
thereof, if it chooses to, upon EPA approval.
Evaluation of Factors: Air quality data, meteorology and topography
indicate that the Pechanga Reservation experiences similar complex
meteorology and transport patterns as inland parts of western Riverside
and San Diego counties. Transport of ozone and its precursors to the
Pechanga Reservation is prevalent from the South Coast. Considering the
three factors of air quality data, meteorology, and topography, EPA
could reasonably include the Pechanga Reservation in either the South
Coast air quality planning area to the north, or the San Diego County
air quality planning area to the south. Alternatively, the EPA could
establish a separate nonattainment area for the Pechanga Reservation as
it did for the 2008 ozone standard.\21\
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\21\ See 77 FR 30088, dated May 21, 2012.
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However, taking into account the minimal emissions associated with
activities on the Pechanga Reservation and corresponding minimal
contribution from Pechanga-related emissions sources to regional ozone
violations, we believe that in these circumstances it is appropriate
and consistent with the principles for designations of Indian country
set forth in the Tribal Designation Policy to assign particular weight
to the jurisdictional boundaries factor. Moreover, the Tribe has
invested in the development of its own air program, including operation
of an ozone monitoring station, and has expressed interest in
development of its own permitting program. Establishment of the
Pechanga Reservation as a separate planning area for the 1997 ozone
standard would facilitate the Tribe's development of its own air
program by aligning the area designations for the two current ozone
standards for which EPA has promulgated area designations.
Therefore, we propose to revise the boundaries of the South Coast
and San Diego 1997 ozone air quality planning areas by removing the
respective portions of the reservation included in those areas and
designating the Pechanga Reservation as a separate nonattainment area
for the 1997 ozone standard. This newly-established air quality
planning area would retain its ozone nonattainment classification as
``Severe-17'' for the 1997 ozone standard unless the EPA finalizes the
action, proposed in section IV of this document, to redesignate this
area to ``attainment'' for the 1997 ozone standard. Our technical
support document (TSD) provides additional information concerning our
rationale for this proposed revisions to Southern California ozone air
quality planning area boundaries.
III. Requirements for Redesignation
In this section, we identify the procedural and substantive
requirements for redesignation for the Pechanga-specific ozone
nonattainment area we are proposing to establish in section II, and in
section IV, we provide our evaluation of this proposed Pechanga-
specific ozone nonattainment area for redesignation to attainment for
the 1997 ozone standard.
A. Procedural Requirements
One of the prerequisites for redesignation is approval of a
maintenance plan meeting the requirements under CAA section 175A. See
CAA section 107(d)(3)(E)(iv). Such a maintenance plan constitutes a SIP
when submitted by a state or a TIP when submitted by a tribe, and the
CAA and EPA's regulations include procedural requirements for such
submittals. Specifically, section 110(a) of the Act requires tribes to
provide reasonable notice and public hearing prior to adoption of TIPs
or TIP revisions. EPA regulations at 40 CFR 51.102 contain additional
specifications for public review of TIPs or TIP revisions including
notice to the public by prominent advertisement in the affected area;
an opportunity for a public hearing; and a minimum 30-day comment
period and provisions for making the plan available for public
inspection.
On September 10, 2014, the Pechanga Tribe published a notice of the
beginning of a public review period for the public draft Pechanga Ozone
Maintenance Plan in The Press-Enterprise, a newspaper of general
circulation in Riverside County. The notice also indicated where the
public draft maintenance plan would be available for review and that a
public hearing would be held on October 15, 2014, if requested. No
request for a public hearing was made, and no comments were submitted.
On October 21, 2014, the Tribe adopted the Pechanga Ozone Maintenance
Plan, and on November 4, 2014, the Pechanga tribal council officially
submitted the Pechanga Ozone Maintenance Plan to EPA as the Tribe's
TIP.
As such, we find that the submittal of the Pechanga Ozone
Maintenance Plan as a TIP satisfies the procedural requirements of
section 110(a) of the Act and 40 CFR 51.102.
B. Substantive Requirements
The CAA establishes the requirements for redesignation of a
nonattainment area to attainment. Specifically, section 107(d)(3)(E)
allows for redesignation provided that the following criteria are met:
(1) The EPA determines that the area has attained the applicable NAAQS;
(2) the EPA has fully approved the applicable implementation plan for
the area under section 110(k); (3) the EPA determines that the
improvement in air quality is due to permanent and enforceable
reductions in emissions resulting from implementation of the applicable
implementation plan, applicable federal air pollution control
regulations, and other permanent and enforceable reductions; (4) the
EPA has fully approved a maintenance plan for the area as meeting the
requirements of CAA section 175A; and (5) the state or eligible tribe
containing such area has met all requirements applicable to the area
under section 110 and part D of the CAA.
The EPA provided guidance on redesignations in a document titled,
[[Page 442]]
``State Implementation Plans; General Preamble for the Implementation
of Title I of the Clean Air Act Amendments of 1990,'' published in the
Federal Register on April 16, 1992 (57 FR 13498), and supplemented on
April 28, 1992 (57 FR 18070) (referred to herein as the ``General
Preamble''). Another relevant EPA guidance document includes
``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, EPA Office of Air Quality Planning and Standards,
September 4, 1992 (referred to herein as the ``Calcagni memo'').
For the reasons set forth below, we propose to approve the Pechanga
Tribe's request for redesignation of the Pechanga Reservation, proposed
herein as a separate air quality planning area, to attainment for the
1997 ozone standard based on our conclusion that all of the criteria
under CAA section 107(d)(3)(E) have been satisfied.
IV. Evaluation of the Pechanga Tribe's Redesignation Request
A. Determination That the Area Has Attained the Applicable NAAQS
CAA section 107(d)(3)(E)(i) requires that we determine that the
area has attained the NAAQS. The EPA generally makes the determination
of whether an area's air quality meets the ozone standard based upon
the most recent three years of complete, certified, and quality-assured
data gathered at established State and Local Air Monitoring Stations
(SLAMS) in the nonattainment area and entered into the EPA Air Quality
System (AQS) database. Data from air monitors operated by state/local
agencies in compliance with EPA monitoring requirements must be
submitted to AQS. Monitoring agencies annually certify that these data
are accurate to the best of their knowledge. Accordingly, the EPA
relies primarily on data in AQS when determining the attainment status
of areas. See 40 CFR 50.10; 40 CFR part 50, appendix I; 40 CFR part 53;
40 CFR part 58, appendices A, C, D and E. All data are reviewed to
determine the area's air quality status in accordance with 40 CFR part
50, appendix I.
Under EPA regulations at 40 CFR part 50, the 1997 ozone standard is
met at an ambient air quality monitoring site when the 3-year average
of the annual fourth-highest daily maximum 8-hour average ozone
concentration is less than or equal to 0.08 ppm. See 40 CFR 50.10; 40
CFR part 50, appendix I. This 3-year average is referred to as the
design value. When the design value is less than or equal to 0.084 ppm
(based on the rounding convention in 40 CFR part 50, appendix I) at
each monitoring site within the area, then the area is attaining the
NAAQS. The data completeness requirement is met when the three-year
average percent of days with valid ambient monitoring data is at least
90 percent of the days during the designated ozone monitoring season,
and no single year has less than 75 percent data completeness as
determined in appendix I of 40 CFR part 50.
The Pechanga Tribe operates an ozone monitor at the reservation. In
2013, EPA conducted a technical systems audit and, as with any audit,
EPA made a number of findings and recommendations to ensure compliance
with EPA's monitoring regulations in 40 CFR part 58.\22\ The Pechanga
Tribe submits the ozone data that it collects to AQS; however, we are
basing this proposed determination of attainment not on the data
collected at the Pechanga monitor, but rather on the data from a
monitoring site located adjacent to Skinner Reservoir, which is
approximately 10 miles north of the Pechanga Reservation and which is
operated by the SCAQMD (the ``Temecula'' monitoring site). We are doing
so because the data from the Pechanga monitor over the past three
calendar years does not meet our completeness criteria, and because the
ozone data collected at SCAQMD's Temecula site is complete and is
representative of ozone conditions at the reservation.\23\
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\22\ See letter from Deborah Jordan, Director, EPA Region IX Air
Division, to Mark Macarro, Chairman, Pechanga Band of Luise[ntilde]o
Mission Indians, January 22, 2014, and attachments.
\23\ For 2011-2013, the Temecula monitor achieved only 89
percent completeness, which is less than the required three-year
completeness requirement of 90 percent. However, the EPA Region IX
staff conducted a missing data analysis for the Temecula station in
accordance with the requirements of 40 CFR part 50 Appendix I,
Section 2.3(b) and concluded that it is appropriate to count the
missing days towards meeting the minimum data completeness
requirements because of concentrations measured at nearby monitors.
Once the missing days are included, the EPA finds the ozone data
from the Temecula station to be complete and valid for NAAQS
comparison purposes. See the EPA staff memorandum to file titled
``Temecula Missing Data Analysis for 2011-2013,'' October 6, 2014.
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With respect to its monitoring network, the SCAQMD submits
monitoring network plan reports to EPA on an annual basis. These
reports discuss the status of the air monitoring network, as required
under 40 CFR part 58. The EPA reviews these annual network plans for
compliance with the applicable reporting requirements in 40 CFR 58.10.
With respect to ozone, we have found that SCAQMD's annual network plans
meet the applicable requirements under 40 CFR part 58.\24\ Furthermore,
we concluded in our Technical System Audit Report (Technical System
Audit Report South Coast Air Quality Management District, 2013) that
SCAQMD's ambient air monitoring network currently meets or exceeds the
requirements for the minimum number of monitoring sites designated as
SLAMS for all of the criteria pollutants. Also, the SCAQMD annually
certifies that the data it submits to AQS are complete and quality-
assured.\25\
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\24\ See, e.g., letter from Meredith Kurpius, Manager, Air
Quality Analysis Office, EPA Region IX, to Dr. Matt Miyasato, Deputy
Executive Officer, SCAQMD, dated September 30, 2014.
\25\ See, e.g., letter from Matt Miyasato, Ph.D., Deputy
Executive Officer, SCAQMD, to Jared Blumenfeld, Regional
Administration, EPA Region IX, dated June 27, 2014.
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Both the Pechanga site and SCAQMD's Temecula site monitor ozone
concentrations on a continuous basis using Federal Equivalent Method
(FEM) monitors. The spatial scale of the Pechanga site is
``neighborhood'', while the Temecula site is ``urban'' scale. The site
types are ``general/background'' (Pechanga) and ``population exposure''
(Temecula).\26\
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\26\ See AQS Monitor Description Report, May 16, 2014.
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As noted above, we reviewed the data from the Pechanga monitoring
site and found it to be incomplete for the 2011-2013 period; however,
the data that is available for that period provides us with the basis
for a comparison with Temecula site data to determine
representativeness of the latter for establishing current ozone
conditions at the reservation. Table 1 summarizes the site-specific
annual fourth-highest daily maximum 8-hour ozone concentrations and 3-
year ozone design values for the Pechanga site and SCAQMD's Temecula
site for the period of 2011-2013.
[[Page 443]]
Table 1--Fourth Highest 8-Hour Ozone Concentrations at Temecula and Pechanga Monitors, 2011-2013, ppm
----------------------------------------------------------------------------------------------------------------
2011-2013
Monitor Site code 2011 2012 2013 design value
----------------------------------------------------------------------------------------------------------------
Temecula........................ 06-065-0016 0.082 0.077 0.074 0.077
Pechanga........................ 06-065-0009 \a\ 0.071 0.075 0.074 NC
----------------------------------------------------------------------------------------------------------------
\a\ Annual value does not meet completeness criteria.
NC = Not calculated because of incomplete data.
Source: AQS Data Summary Report, dated May 16, 2014.
As shown in table 1, a comparison of the 2012 and 2013 data from
the Temecula site and the Pechanga site demonstrates that the former
site is representative of conditions at the latter.\27\ The summary of
data in table 1 also shows that the design value for the 2011-2013
period was less than 0.084 ppm at the Temecula site. Therefore, we are
proposing to determine, based on complete, certified, and quality-
assured data for 2011-2013 from the Temecula monitoring site, that the
proposed Pechanga Reservation ozone nonattainment area has attained the
1997 ozone standard. Our review of preliminary 2014 data from both the
Temecula and Pechanga sites indicates that the data remains consistent
with continued attainment.\28\
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\27\ In fact, the Pechanga data are consistently less than or
equal to the Temecula and Lake Elsinore data for the 2011-2013
timeframe. See our technical support document for additional
information related to the representativeness of the Temecula
monitoring data as it relates to Pechanga air quality.
\28\ See AQS Quicklook Report, dated November 6, 2014. At the
Temecula station, available data for 2014 only includes the first
quarter of the year (January through March). Based on that first
quarter, the fourth-highest 8-hour ozone concentration so far in
2014 is 0.065 ppm. At the Pechanga station, two quarters of
preliminary data for 2014 are available (i.e., January through
June), and the fourth-highest 8-hour concentration at that station
so far in 2014 is 0.079 ppm.
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B. The Area Must Have a Fully Approved Implementation Plan Meeting
Requirements Applicable for Purposes of Redesignation Under Section 110
and Part D
Section 107(d)(3)(E)(ii) and (v) require the EPA to determine that
the area has a fully approved applicable implementation plan under
section 110(k) that meets all applicable requirements under section 110
and part D for the purposes of redesignation.In this context, the term
``applicable implementation plan'' refers to a TIP or a regulation
promulgated by EPA under the Tribal Authority Rule (TAR) in 40 CFR part
49.\29\
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\29\ See CAA section 302(q).
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1. Basic Implementation Plan Requirements Under CAA Section 110
Section 110(a)(1) requires implementation plans to provide for the
implementation, maintenance, and enforcement of the NAAQS. Section
110(a)(2) of title I of the CAA delineates the general requirements for
such an implementation plan, including enforceable emissions
limitations and other control measures, means, or techniques;
provisions for the establishment and operation of appropriate devices
necessary to collect data on ambient air quality; and programs to
enforce the limitations.
Section 110(a)(2)(D) requires that implementation plans contain
certain measures to prevent sources in a state from significantly
contributing to air quality problems in another state. To implement
this provisions, the EPA has required certain states to establish
programs to address the interstate transport of air pollutants. The
section 110(a)(2)(D) requirements for a state are not linked with a
particular nonattainment area's designation and classification in that
state. The EPA believes that the requirements linked with a particular
nonattainment area's designation and classification are the relevant
measures to evaluate in reviewing a redesignation request. The
transport implementation plan submittal requirements, where applicable,
continue to apply to a state regardless of the designation of any one
particular area in the state. Thus, the EPA does not believe that the
CAA's interstate transport requirements should be construed to be
applicable requirements for purposes of redesignation.
In addition, the EPA believes other section 110 elements that are
neither connected with nonattainment plan submissions nor linked with
an area's attainment status are not applicable requirements for
purposes of redesignation. The area will still be subject to these
requirements after the area is redesignated. The section 110 and part D
requirements which are linked with a particular area's designation and
classification are the relevant measures to evaluate in reviewing a
redesignation request. This approach is consistent with the existing
policy on applicability (i.e., for redesignations) of conformity and
oxygenated rules requirements, as well as with section 184 ozone
transport requirements. See Reading, Pennsylvania, proposed and final
rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7,
1997); Cleveland-Akron-Loraine, Ohio, final rulemaking (61 FR 20458,
May 7, 1996); and Tampa, Florida, final rulemaking at (60 FR 62748,
December 7, 1995). See also the discussion of this issue in the
Cincinnati, Ohio, redesignation (65 FR 37890, June 19, 2000), and in
the Pittsburgh, Pennsylvania, redesignation (66 FR 50399, October 19,
2001).
Furthermore, while the Act requires states to prepare
implementation plans that meet all of the requirements of section 110
of the Act, including those requirements that the EPA would consider
applicable for the purposes of redesignation, under EPA's TAR, specific
plan submittal and implementation deadlines for NAAQS-related
requirements, including such deadlines in section 110(a)(1) do not
apply. 40 CFR 49.4(a). Thus, an Indian tribe may choose not to adopt a
TIP or may adopt TIP provisions that address only some elements of
section 110, provided those elements are ``reasonably severable,'' from
other elements not included in the TIP.\30\ The EPA may regulate
emission sources that the Indian tribe chooses not to include in a TIP
if the EPA determines such regulation is necessary or appropriate to
adequately protect air quality.\31\
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\30\ 40 CFR 49.7(c).
\31\ 40 CFR 49.11(a).
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In this instance, the Pechanga Tribe has not chosen to adopt a TIP
that addresses any of the section 110 implementation plan elements and
is not required to do so. The EPA has, however, previously determined
that it is ``necessary or appropriate'' to establish regulations
governing review and permitting of new or modified
[[Page 444]]
stationary sources in Indian country (i.e., ``New Source Review'' or
NSR). These regulations apply in most Indian reservations, including
the Pechanga Reservation, unless the EPA approves a tribal NSR
implementation plan in which case the tribal NSR implementation plan
replaces the EPA's NSR rules that would otherwise apply. The EPA's NSR
rules apply within the Pechanga Reservation and satisfy the section 110
element found in CAA section 110(a)(2)(C) regarding regulation of new
or modified stationary sources. The EPA has not determined that any
other section 110 plan element is ``necessary or appropriate'' for the
Pechanga Reservation, therefore, we find that the only requirement
under CAA section 110 applicable to the Pechanga air quality planning
area is CAA section 110(a)(2)(C). Given that the EPA's NSR rules
addressing CAA section 110(a)(2)(C) are promulgated in final form, we
propose to find that the proposed Pechanga Reservation air quality
planning area meets the general implementation plan requirements under
section 110 of the CAA, to the extent those requirements are applicable
for the purposes of redesignation.
2. Part D Requirements
The CAA contains two sets of provisions, subparts 1 and 2, that
address planning and emission control requirements for ozone
nonattainment areas. Both of these subparts are found in title I, part
D of the CAA; sections 171-179 and sections 181-185, respectively.
Subpart 1 contains general, less specific requirements for all
nonattainment areas of any pollutant, including ozone, governed by a
NAAQS. Subpart 2 contains additional, specific requirements for ozone
nonattainment areas classified under subpart 2.
The applicable subpart 1 requirements are contained in sections
172(c)(1)-(9) and 176 of the CAA. A thorough discussion of the
requirements contained in section 172 can be found in the General
Preamble for Implementation of Title I (57 FR 13498, April 16, 1992).
With respect to the requirements under subpart 2, we note that, as
discussed in more detail above, the Pechanga Reservation is subject to
the requirements under subpart 2 of part D of the CAA for areas
classified as ``Severe-17'' for the 1997 ozone standard. See 75 FR
24409 (May 5, 2010). Additionally, under EPA's anti-backsliding rules
governing the transition from the now-revoked 1-hour ozone standard to
the 1997 8-hour ozone standard, the applicable requirements under the
area's classification under the 1-hour ozone standard continue to
apply. In the case of the Pechanga Reservation, the ``applicable
requirements'' for the 1-hour ozone standard are those that apply
within ``Extreme'' ozone nonattainment areas because the Pechanga
Reservation (i.e., the Riverside County portion of the reservation) was
included in the South Coast ``Extreme'' 1-hour ozone nonattainment
area.
Under its longstanding interpretation of the CAA, the EPA has
interpreted section 107(d)(3)(E) to mean, as a threshold matter, that
the only part D provisions, which are ``applicable'' and which must be
approved in order for EPA to redesignate an area, are those which came
due prior to the submittal of a complete redesignation request. See the
Calcagni memo; EPA memorandum titled ``State Implementation Plan (SIP)
Requirements for Areas Submitting Requests for Redesignation to
Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air
Quality Standards (NAAQS) on or after November 15, 1992,'' from Michael
Shapiro, Acting Assistant Administrator for Air and Radiation, dated
September 17, 1993; 60 FR 12459, 12465-66 (March 7, 1995)
(redesignation of Detroit-Ann Arbor, Michigan); 68 FR 25418, 25424-
25427 (May 12, 2003) (redesignation of St. Louis, Missouri); and Sierra
Club v. EPA, 375 F.3d 537, 541 (7th Cir. 2004) (upholding EPA's
redesignation rulemaking applying this interpretation).
Section 107(d)(3)(E)(v) states that, for an area to be
redesignated, a state must meet all requirements ``applicable'' to the
area under section 110 and part D. Section 107(d)(3)(E)(ii) similarly
provides that the EPA must have fully approved the ``applicable'' SIP
for the area seeking redesignation. These two sections read together
support the EPA's interpretation of ``applicable'' as only those
requirements that came due prior to submission of a complete
redesignation request. First, holding states to an ongoing obligation
to adopt new CAA requirements that arose after the state submitted its
redesignation request, in order to be redesignated, would make it
problematic or impossible for the EPA to act on redesignation request
in accordance with the 18-month deadline Congress set for EPA action in
section 107(d)(3)(D). If ``applicable requirements'' were interpreted
to be a continuing flow of requirements with no reasonable limitation,
states, after submitting a redesignation request, would be forced
continuously to make additional SIP submissions that in turn would
require the EPA to undertake further notice-and-comment rulemaking
actions to act on those submissions. This would create a regime of
unceasing rulemaking that would delay action on the redesignation
request beyond the 18-month timeframe provided by the Act for this
purpose.
Second, a fundamental premise for redesignating a nonattainment
area to attainment is that the area has attained the relevant NAAQS due
to emission reductions from existing controls. Thus, an area for which
a redesignation request has been submitted would have already attained
the NAAQS as a result of satisfying statutory requirements that came
due prior to the submission of the request. Absent a showing that
unadopted and unimplemented requirements are necessary for future
maintenance, it is reasonable to view the requirements applicable for
purposes of evaluating the redesignation request as including only
those SIP requirements that have already come due. These are the
requirements that led to attainment of the NAAQS. To require, for
redesignation approval, that a state also satisfy additional SIP
requirements unrelated to redesignation that come due after the state
submits its complete redesignation request, and while the EPA is
reviewing it, would compel the state to do more than is necessary to
attain the NAAQS, without a showing that the additional requirements
are necessary for maintenance.
With regard to Indian tribes, the EPA notes that under the CAA and
the TAR, tribes may, but are not required to, submit implementation
plans to EPA for approval. The EPA has expressly exempted tribes from
all plan submittal and implementation deadlines for NAAQS-related
requirements. 40 CFR 49.4(a) (specific plan submittal and
implementation deadlines listed as CAA provisions for which it is not
appropriate to treat tribes in the same manner as states). The EPA,
however, has authority under the TAR to implement such plan provisions
as are necessary or appropriate to protect air quality where tribes do
not do so. 40 CFR 49.11. Thus, tribes are not required to submit plans
addressing part D requirements, and under the EPA's longstanding
interpretation of section 107(d)(3)(E), there are no part D
requirements that are applicable for the purposes of redesignation
unless the EPA has deemed any such part D element to be ``necessary or
appropriate'' under the TAR. In this case, the only part D element that
EPA has deemed to be ``necessary or appropriate'' is the NSR program
for major sources and major modifications in nonattainment areas
generally,
[[Page 445]]
including the Pechanga Reservation, and EPA has promulgated the
corresponding ``major source'' nonattainment NSR regulations at 40 CFR
49.166 through 49.173. No other part D requirements are applicable for
the purposes of evaluating the Pechanga Tribe's redesignation request
because no such requirement was due prior to submission of the Tribe's
redesignation request. Therefore, we find that the Pechanga area is
subject to a major source nonattainment program promulgated by the EPA
in 40 CFR part 49 to meet part D requirements on the Pechanga
Reservation, and that no other part D requirements are applicable for
the purposes of evaluating the Pechanga Tribe's redesignation request
because no such requirement has become due for the reservation. As
such, we believe that the area has satisfied the redesignation criteria
of CAA section 107(d)(3)(E)(v).
C. The Area Must Show the Improvement in Air Quality Is Due to
Permanent and Enforceable Emissions Reductions
Section 107(d)(3)(E)(iii) precludes redesignation of a
nonattainment area to attainment unless the EPA determines that the
improvement in air quality is due to permanent and enforceable
reductions in emissions resulting from implementation of the applicable
implementation plan and applicable federal air pollution control
regulations and other permanent and enforceable regulations. Attainment
resulting from temporary reductions in emissions rates (e.g., reduced
production or shutdown due to temporary adverse economic conditions) or
unusually favorable meteorology would not qualify as an air quality
improvement due to permanent and enforceable emission reductions.
In 2004, the EPA included the Pechanga Reservation in the South
Coast ``Severe-17'' nonattainment area for the 1997 8-hour ozone
standard. See 69 FR 23858 (April 30, 2004), at 23882-23884, and
footnote ``a'' to the California ozone table at page 23890. Our 2004
designations for the 1997 8-hour ozone standard were generally based on
data from years 2001-2003. At that time, neither SCAQMD's Temecula
monitoring site nor the Pechanga monitoring site was operational, and
the closest SCAQMD monitor to the Pechanga Reservation was located at
SCAQMD's Lake Elsinore ozone monitoring site. The Lake Elsinore site is
approximately 20 miles northwest of the Pechanga Reservation, and in
2002, the design value there was 0.104 ppm. Ozone concentrations at the
Pechanga Reservation are less than those monitored at Lake Elsinore,
and thus, the design value at the Pechanga Reservation, if it had been
monitored, would likely have been less than 0.104 ppm back in 2002. As
discussed in section IV.A of this document, ambient ozone
concentrations at the Pechanga Reservation have now achieved the 1997
ozone standard based on a design value for the 2011-2013 period of
0.077 ppm.
The improvement in ozone conditions at the Pechanga Reservation
does not reflect emissions changes at Pechanga Reservation itself given
the nature and magnitude of the few emitting sources at the
reservation. Instead, the improvement reflects reductions in emissions
of ozone precursors from sources, including stationary, mobile and area
sources, in the South Coast. Reductions in South Coast emissions
sources result in less ozone and ozone precursors being transported to
the Pechanga Reservation from the north.
The SCAQMD's Final 2007 Air Quality Management Plan (June 2007)
(``2007 South Coast AQMP'') includes emissions estimates for the South
Coast for a base year (2002) and a number of future years, including
2011 and 2014. We have used the estimates in the 2007 South Coast AQMP
to develop 2012 emissions estimates for the South Coast, and based on a
comparison between our estimates for 2012 and SCAQMD's estimates for
2002, we find that emissions of VOC and NOX in the South
Coast have decreased by approximately 34 percent over that time period.
The significant reductions in VOC and NOX emissions that
occurred from 2002 to 2012 in the South Coast largely reflect the
impact of mobile source regulations and programs. More specifically,
approximately 80 percent of the reduction in VOCs, and approximately 95
percent of the reduction in NOX, is due to reductions from
emissions from on-road and nonroad vehicles. In California, both the
California Air Resources Board (CARB) and the EPA regulate on-road and
nonroad vehicles. As a general matter, the CARB establishes emissions
standards and other related requirements for new on-road motor vehicles
sold in California, and the EPA establishes such requirements for cars
sold outside California.
To enforce CARB motor vehicle standards, the CARB must first apply
to the EPA for a waiver under CAA section 209(b). Once issued, the
waiver provides the CARB with the authority to enforce the standards
within California. The EPA has issued many such waivers [e.g., 68 FR
19811 (April 22, 2003)(EPA waiver for CARB's LEV II regulations)] over
the years to the CARB for its on-road motor vehicle standards. During
most of the 2002-2012 period, CARB's low-emission vehicle (LEV) II
standards applied to new on-road vehicles sold in California, and the
phased replacement of older more polluting vehicles with newer vehicles
meeting LEV II standards explains much of the reduction in emissions in
the South Coast from on-road vehicles during this period. We consider
CARB's on-road motor vehicle regulations such as the LEV II standards
for which the EPA has issued waivers under CAA section 209(b) as
providing ``other permanent and enforceable reductions'' for the
purposes of the redesignation criterion in CAA section
107(d)(3)(E)(iii). Also, vehicles sold outside of California also
affect air quality within the state, and with respect to those
vehicles, the EPA's increasingly stringent motor vehicle standards
achieved emission reductions of ozone precursors over the 2002-2012
period.
CAA section 209(e) establishes a process, similar to the waiver
process described above for new motor vehicles under section 209(b),
under which the CARB must seek authorization from the EPA to enforce
emissions standards and other related requirements for nonroad
vehicles. Over the years, the EPA has issued many such authorizations
providing the CARB with the authority to enforce its nonroad vehicle
standards in California. See, e.g., 71 FR 29623 (May 23, 2006) (EPA
authorization of CARB's large off-road spark ignition engine
standards); 71 FR 75536 (December 15, 2006) (EPA authorization of
CARB's small off-road engine regulations). Over the 2002-2012 period,
CARB's nonroad vehicle standards achieved significant emissions
reductions from the nonroad vehicle source category throughout
California. Like CARB's on-road motor vehicle standards, we also
consider CARB's nonroad vehicle standards for which the EPA has issued
authorizations as providing ``other permanent and enforceable
reductions'' for the purposes of the redesignation criterion in CAA
section 107(d)(3)(E)(iii). Also, the EPA established emission standards
and related requirements for certain classes of equipment for which
states, including California, are preempted, such as locomotives and
certain types of agricultural and construction equipment. See CAA
section 209(e)(1). Such EPA standards also achieved emissions
reductions in the South Coast during the 2002-2012 period and
incrementally contributed to the
[[Page 446]]
improvement of ozone conditions at the Pechanga Reservation.
In addition to vehicle standards, California has also established
more stringent gasoline and diesel fuel requirements, more stringent
vapor recovery requirements, and more stringent vehicle inspection and
maintenance requirements that have reduced emissions of ozone
precursors in the South Coast. As a general matter, such requirements
are not subject to the waiver or authorization process in CAA section
209. Instead, the CARB submits the regulations establishing such
requirements to the EPA as a revision to the California SIP. Once
approved by the EPA, such regulations become federally enforceable. The
EPA most recently approved California clean fuels (gasoline and diesel)
at 75 FR 26653 (May 12, 2010); enhanced vapor recovery at 78 FR 21542
(April 11, 2013) (SCAQMD Rule 461 requiring CARB-certified equipment)
and 64 FR 39037 (July 21, 1999) (SCAQMD Rule 462 requiring CARB-
certified equipment); and I/M at 75 FR 38023 (July 1, 2010). Though
such state regulations do not apply on the Pechanga Reservation, these
requirements have provided significant emissions reductions in areas
upwind of the Pechanga Reservation during the 2002-2012 period and are
considered as ``other permanent and enforceable reductions'' for the
purposes of the redesignation criterion in CAA section
107(d)(3)(E)(iii).
Given the regulatory initiatives implemented during the 2002-2012
period and summarized above, we find that the improvement in air
quality since 2002 may reasonably be attributed to the initiatives and
is not a result of an economic downturn or unusual or extreme weather
patterns. We do recognize that a significant economic slowdown occurred
nationally starting in 2008, but we note that the downward trend in VOC
and NOX emissions had already been established before that
time.\32\
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\32\ Between 2002 and 2005, VOC and NOX emissions in
the South Coast decreased approximately 27 percent and 21 percent
respectively, based on baseline emissions estimates in appendix II
to the South Coast 2007 AQMP.
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We also considered temperature data for the 1994-2013 period.\33\
The data indicate that the 2011-2013 attainment period was slightly
warmer than the long-term average. In addition, there were ten previous
three-year periods since 1993 that were at least as cool or cooler than
the 2011-2013 period, but that also had 8-hour ozone design values
above the 1997 ozone standard. Thus, the temperature records support
the conclusion that attainment did not result from unusually favorable
meteorology during 2011-2013.
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\33\ See table 4-2 of the Pechanga Ozone Maintenance Plan.
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Based on the above analysis, we find that the improvement in air
quality at the Pechanga Reservation is the result of permanent and
enforceable emissions reductions from applicable federal air pollutant
control regulations, particularly those associated with on-road and
nonroad vehicles, and other permanent and enforceable reductions from
upwind sources resulting from CARB and SCAQMD regulations, particularly
CARB regulations establishing increasingly stringent standards for new
on-road and nonroad vehicles, tighter specifications for gasoline and
diesel fuel, enhanced vapor recovery, and vehicle I/M programs. As
such, we propose to find that the criterion for redesignation set forth
at CAA section 107(d)(3)(E)(iii) is satisfied.
D. The Area Must Have a Fully Approved Maintenance Plan Under CAA
Section 175A
Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
We interpret this section of the Act to require, in general, the
following core elements: Attainment inventory, maintenance
demonstration, monitoring network, verification of continued
attainment, and contingency plan. See Calcagni memo, pages 8 through
13. Under CAA section 175A, a maintenance plan must demonstrate
continued attainment of the applicable NAAQS for at least ten years
after the EPA approves a redesignation to attainment.
To address the possibility of future NAAQS violations, the
maintenance plan must contain such contingency provisions, that the EPA
deems necessary, to promptly correct any violation of the NAAQS that
occurs after redesignation of the area to attainment. Based on our
review and evaluation of the plan, as detailed below, we are proposing
to approve the Pechanga Ozone Maintenance Plan because we believe that
it meets the requirements of CAA section 175A.
1. Attainment Inventory
A maintenance plan for the 1997 8-hour ozone standard must include
an inventory of emissions of ozone precursors (VOC and NOX)
in the area to identify a level of emissions that are sufficient to
attain the 1997 ozone standard. This inventory must be consistent with
the EPA's most recent guidance on emissions inventories for
nonattainment areas available at the time and should represent
emissions during the time period associated with the monitoring data
showing attainment. The inventory must also be comprehensive, including
emissions from stationary, area, nonroad mobile, and on-road mobile
sources, and must be based on actual ``ozone season data'' (i.e.,
summertime) emissions.
The Pechanga Tribe selected year 2012 as the year for the
attainment inventory in the Pechanga Ozone Maintenance Plan. The
attainment inventory will generally be the actual inventory during the
time period the area attained the standard. Thus, the Pechanga Tribe's
selection of 2012 for the attainment inventory is acceptable.
The Pechanga Ozone Maintenance Plan estimates current (2012) summer
day emissions of 0.013 tons per day (tpd) of VOC and 0.029 tpd of
NOX. These estimates are consistent with the EPA's own
estimates discussed in section II.B of this document of 5.8 tons per
year of VOC (i.e., 0.016 tpd annual average) and 10.7 tpy of
NOX (i.e., 0.029 tpd annual average) given the differences
between seasonal values and annual values. More important, however,
from the standpoint of establishing an emissions level consistent with
attainment of the 1997 8-hour ozone standard at the Pechanga
Reservation, is the summer-day average emissions in 2012 within the
South Coast given the importance of transport to ozone conditions at
the reservation. The Pechanga Ozone Maintenance Plan includes estimates
for 2012 South Coast summer-day average emissions of approximately 500
tpd of VOC and 490 tpd of NOX. The Tribe's source for this
information is the latest emissions data available from CARB's Web
site.
The EPA also estimated 2012 South Coast emissions, but relied on a
different data source: The 2012 South Coast Final Air Quality
Management Plan (2012 South Coast AQMP). We relied on the 2012 South
Coast AQMP because we recently approved the ozone portion of that plan,
79 FR 52526 (September 3, 2014), and in so doing, found the emissions
inventories to be comprehensive, to reflect appropriate emissions
calculation methods and the latest planning assumptions. See 79 FR
29712, at 29717 (May 23, 2014) (proposed approval of ozone portion of
2012 South Coast AQMP). Based on interpolation of emissions estimates
for 2008 and 2014 contained in the 2012 South Coast AQMP, we calculate
2012 South Coast summer-day average emissions to be approximately 540
tpd of VOC and 560 tpy of NOX, which are
[[Page 447]]
reasonably consistent with the corresponding estimates included in the
Pechanga Ozone Maintenance Plan.
2. Maintenance Demonstration
CAA section 175A(a) requires that the maintenance plan ``provide
for the maintenance of the national primary ambient air quality
standard for such air pollutant in the area concerned for at least 10
years after the redesignation.'' Generally, a state may demonstrate
maintenance of the 1997 ozone standard by either showing that future
emissions will not exceed the level of the attainment year inventory or
by modeling to show that the future mix of sources and emissions rates
will not cause a violation of the NAAQS. For areas that are required
under the Act to submit modeled attainment demonstrations, the
maintenance demonstration should use the same type of modeling. See
Calcagni memo, page 9. The Pechanga Reservation 8-hour area was not
required to submit a modeled attainment demonstration, and thus, the
Pechanga Ozone Maintenance Plan may demonstrate maintenance based on a
comparison of existing and future emissions of ozone precursors.\34\
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\34\ A maintenance demonstration need not be based on ozone
modeling. See Wall v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 66
FR 53094, at pages 53099-53100 (October 19, 2001), and 68 FR 25413,
pages 25430-25432 (May 12, 2003).
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In addition to the 2012 attainment inventory described above, the
Pechanga Ozone Maintenance Plan also includes emissions inventories for
2015, 2020, and 2025. With respect to reservation-specific sources, the
Pechanga Ozone Maintenance Plan projects that emissions will remain
relatively constant from emissions sources at the reservation over the
maintenance period (i.e., through 2025). Relying on CARB emissions
data, the Pechanga Ozone Maintenance Plan predicts that South Coast
emissions will decrease over the period 2012-2025. The EPA has also
calculated South Coast emissions for future years 2015, 2020, and 2025
but relied upon the emissions inventories in the 2012 South Coast AQMP
(and interpolation methods) to do so.\35\ These various emissions
estimates are summarized in table 2 below.
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\35\ The South Coast 2012 AQMP future-year estimates were
derived using the emissions from the 2008 base year; expected
controls after implementation of SCAQMD rules adopted by June 2012,
and CARB rules adopted as of August 2011; and activity growth in
various source categories between the base and future years. See
page 3-20 of the 2012 South Coast AQMP.
Table 2--Ozone Precursor Emissions Estimates for Pechanga Reservation and South Coast, 2012, 2015, 2020 and 2025
[Summer-day average, tons per day]
----------------------------------------------------------------------------------------------------------------
Ozone precursor 2012 2015 2020 2025
----------------------------------------------------------------------------------------------------------------
Pechanga Reservation (Based on data as shown in
Maintenance Plan):
VOC......................................... 0.013 0.013 0.012 0.011
NOX......................................... 0.029 0.029 0.028 0.028
South Coast (Based on CARB data as shown in
Maintenance Plan rounded to the nearest 10
tons):
VOC......................................... 500 460 420 410
NOX......................................... 490 430 340 280
South Coast (Based on 2012 South Coast AQMP data
rounded to the nearest 10 tons):
VOC......................................... 540 480 450 440
NOX......................................... 560 470 370 310
----------------------------------------------------------------------------------------------------------------
As shown in table 2, Pechanga Reservation and South Coast emissions
of ozone precursors are expected to decrease from attainment year
(2012) levels through the maintenance period (i.e., through 2025) and
thereby adequately demonstrate maintenance of the 1997 8-hour ozone
standard at the Pechanga Reservation through at least a 10-year period
beyond redesignation.
3. Monitoring Network
Continued ambient monitoring of an area is generally required over
the maintenance period. As discussed elsewhere in this document, ozone
is currently monitored by the SCAQMD and the Pechanga Tribe at two
sites within or near the Pechanga Reservation. While this determination
of attainment is based on data from SCAQMD's Temecula monitoring site,
the ozone monitor operated by the Tribe is the one that we expect to be
used to verify maintenance of the 1997 8-hour ozone standard through
the maintenance period. In the Pechanga Ozone Maintenance Plan, the
Tribe commits to continue operating the ambient ozone monitoring
network, quality assuring the resulting monitoring data, and entering
all data into the AQS in accordance with federal requirements and
guidelines to verify continued attainment of the 1997 8-hour ozone
NAAQS. See page 36 of the Pechanga Ozone Maintenance Plan. We find the
Tribe's commitment for continued ambient ozone monitoring as set forth
in its maintenance plan to be acceptable.
4. Verification of Continued Attainment
The EPA and the Pechanga Tribe have the legal authority to
implement and enforce the requirements of the Pechanga Ozone
Maintenance Plan.\36\ This includes the authority to adopt, implement
and enforce any emission control contingency measures determined to be
necessary to correct violations of the 1997 8-hour ozone standard. To
verify continued attainment, as noted above, the Tribe commits to the
continued operation of an ozone monitoring network in accordance with
federal requirements and guidelines to verify continued attainment of
the 1997 ozone standard. The Pechanga Tribe also commits to annually
reviewing ozone monitoring data from the three most recent, consecutive
years to verify continued attainment of the 1997 ozone standard through
the maintenance period. See page 36 of the Pechanga Ozone Maintenance
Plan.
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\36\ As noted previously, the EPA recently determined that the
Tribe is eligible for treatment in the same manner as a state
(``TAS'') for purposes of CAA sections 110 and 175A and the
submitted maintenance plan. In so doing, the EPA determined that the
Tribe can reasonably be expected to be capable of carrying out the
functions of the maintenance plan. 40 CFR 49.6(d).
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Generally, we expect states or tribes with maintenance areas to
verify
[[Page 448]]
continued attainment by other means as well, such as preparing updated
emissions inventories for the area to allow for a comparison with the
inventories prepared for the maintenance plan. However, in this
instance, maintenance of the standard does not depend upon emissions
generated by sources within the area proposed for redesignation, but
rather upon the emissions generated upwind. Therefore, we find
acceptable the Tribe's monitoring-only-based approach to verification
of continued attainment.
5. Contingency Provisions
Section 175A(d) of the Act requires that maintenance plans include
contingency provisions, as the EPA deems necessary, to promptly correct
any violations of the NAAQS that occur after redesignation of the area
to attainment. Such provisions must include a requirement that the
state will implement all measures with respect to the control of the
air pollutant concerned which were contained in the SIP for the area
before redesignation of the area as an attainment area.
Under section 175A(d), contingency measures identified in the
contingency plan do not have to be fully adopted at the time of
redesignation. However, the contingency plan is considered to be an
enforceable part of the SIP or TIP and should ensure that the
contingency measures are adopted expeditiously once they are triggered
by a specified event. The maintenance plan should clearly identify the
measures to be adopted, a schedule and procedure for adoption and
implementation, and a specific timeline for action by the state or
tribe. As a necessary part of the plan, the state or tribe should also
identify specific indicators or triggers, which will be used to
determine when the contingency measures need to be implemented.
As required by section 175A of the CAA, the Pechanga Tribe has
adopted a contingency plan to address possible future ozone air quality
problems. See section 5.7 of the Pechanga Ozone Maintenance Plan. The
Tribe's contingency plan includes both a specific contingency measure
that has already been adopted and is being implemented early \37\ and a
mechanism to trigger the adoption of additional measures as needed.
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\37\ The Tribe followed the August 13, 1993 EPA guidance
memorandum titled ``Early Implementation of Contingency Measures for
Ozone and Carbon Monoxide (CO) Nonattainment Areas.''
---------------------------------------------------------------------------
Given that emissions generated on the reservation have little or no
effect on ozone conditions at the reservation itself, the Pechanga
Ozone Maintenance Plan reasonably looks to emissions-reduction
strategies to be implemented upwind of the reservation, and one such
program, CARB's Advanced Clean Cars Program (ACCP), is the specific
contingency measure cited in the maintenance plan. Because CARB
regulations, including the ACCP, do not apply on the reservation, the
ACCP does not qualify as a contingency measure for the Pechanga Ozone
Maintenance Plan. However, as described below, we find that the ACCP
will provide additional emissions reductions in the South Coast and
thereby provide sufficient protection of ozone conditions at the
reservation to justify the lack of specific contingency measures to be
implemented by the Tribe in the wake of a monitored ozone violation at
the reservation.
The ACCP, adopted by CARB in 2012, will progressively tighten
emissions control requirements for new motor vehicles sold in
California from model years 2015 through 2025.\38\ While the emission
benefits from the ACCP are not expected to be fully realized until the
2035-2040 timeframe, the CARB estimates that statewide emissions of VOC
and NOX will be reduced by 3 percent and 12 percent,
respectively, by 2025 due to the ACCP. As such, the ACCP will provide
additional emissions reductions in the South Coast through the
maintenance period and thereby decrease the chance that a monitored
violation will occur at the Pechanga Reservation. Moreover, the
additional emissions reductions from the ACCP are surplus to those
included in the baseline emissions estimates upon which the maintenance
demonstration relies.
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\38\ On January 9, 2013, EPA approved CARB's request for a
waiver of preemption under section 209(b) for its ACCP regulations.
See 78 FR 2112.
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The Pechanga Tribe also commits to annually review ozone monitoring
data from the three most recent, consecutive years to verify continued
attainment of the 1997 ozone standard through the maintenance period.
In the event of a monitored violation of the 1997 8-hour ozone
standard, the Tribe commits to work with the EPA to identify, adopt,
and implement any additional necessary and appropriate measure(s)
needed to promptly correct the violation.
Based upon our review of the plan, as summarized above, we conclude
that the contingency provisions of the Pechanga Ozone Maintenance Plan
comply with section 175A(d) of the Act.
V. Summary of Proposed Action and Request for Public Comment
Under CAA sections 107(d)(3), the EPA is proposing to revise the
boundaries of the South Coast and San Diego County air quality planning
areas for the 1997 ozone standard to designate the Pechanga Reservation
as a separate nonattainment area for the 1997 ozone standard. We are
proposing to do so 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 San Diego
County air quality planning areas, that emissions sources at the
Pechanga Reservation contribute minimally to regional ozone
concentrations, and that the jurisdictional boundaries factor should be
given particular weight under these circumstances. If finalized as
proposed, the Pechanga air quality planning area for the 1997 ozone
standards would have the same boundaries as the Pechanga nonattainment
area for the 2008 ozone standard. Unless the EPA finalizes its
redesignation of the area to attainment for the 1997 ozone standard,
also proposed herein, the area would retain its current classification
of ``Severe-17'' for the 1997 ozone standard.
Under CAA sections 110(k), 110(o), and 301(d), the EPA is also
proposing to approve the Pechanga Ozone Maintenance Plan, submitted by
the Tribe on November 4, 2014, as the Tribe's TIP for maintaining the
1997 ozone standard within the Pechanga Reservation for ten years
beyond redesignation, because it meets the requirements for maintenance
plans under CAA section 175A.
Lastly, under CAA section 107(d)(3), and based in part on the
proposed approval of the Pechanga Ozone Maintenance Plan, the EPA is
proposing to grant a request from the Tribe to redesignate the newly-
established Pechanga Reservation ozone air quality planning area to
attainment for the 1997 ozone standard because the request meets the
statutory requirements for redesignation under the Clean Air Act.
If finalized as proposed, the requirements that had applied to the
Pechanga Reservation by virtue of its inclusion in the South Coast
``Extreme'' ozone nonattainment area for the 1-hour ozone standard
would no longer apply, nor would the requirements that had applied to
the reservation by virtue of its designation as ``Severe-17'' for the
1997 ozone standard. The requirements that would no longer apply
include, among others, the NNSR major source threshold of 10 tpy for
ozone precursor
[[Page 449]]
emissions in ``Extreme'' ozone nonattainment areas. New or modified
stationary sources proposed at the Pechanga Reservation would remain
subject to major source nonattainment NNSR, however, by virtue of the
reservation's classification as a ``Moderate'' ozone nonattainment area
for the 2008 ozone standard. The NNSR major source threshold in
``Moderate'' ozone nonattainment areas is 100 tpy.
In addition, if finalized as proposed, the EPA would withdraw our
proposal to reclassify the Pechanga Reservation as ``Extreme'' for the
1997 8-hour ozone NAAQS at 74 FR 43654 (August 27, 2009). In so doing,
we would resolve the action that we deferred in 2010 [75 FR 24409 (May
5, 2010)] when we reclassified the rest of the South Coast, as then
defined and with the exception of two reservations, as ``Extreme'' for
that standard.
In concluding that it is appropriate to propose approval of the
tribe's requests for boundary changes and designation to attainment for
the 1997 ozone NAAQS, the EPA relies heavily on the obvious fact that
this is a request from a federally recognized tribal government. The
tribe has been determined previously to qualify for TAS, and the lands
under consideration here are subject to EPA's Tribal Designations
Policy. EPA finds that the tribe has met all applicable requirements of
that policy.
EPA also relies on the facts that there are valid monitoring data
showing that current air quality at the Pechanga Reservation meets the
1997 ozone standard and that the emissions from tribal lands here are
extremely small and do not contribute in any meaningful way to any
nearby ozone nonattainment area. Finally, the EPA notes that this
action to establish a separate air quality planning area, if finalized,
would simplify implementation of the ozone standards by eliminating the
presence of two different planning areas for the same criteria
pollutant, ozone. This separate treatment of the Pechanga Reservation
is consistent with EPA's prior actions to reclassify the South Coast
ozone nonattainment area in 2010, and to establish a separate ozone
nonattainment area for the 2008 ozone standard in 2012. In summary, the
proposed changes in the boundaries and the status of this area are
supported by several unique factors described in this notice that are
unlikely to be present in other nonattainment areas.
The EPA is soliciting public comments on the issues discussed in
this document and will accept comments for the next 30 days. These
comments will be considered before taking final action.
VI. Statutory and Executive Order Reviews
Under the CAA, redesignation of an Indian reservation air quality
planning area to attainment and the accompanying approval of a
maintenance plan under section 107(d)(3)(E) are actions that affect the
status of a geographical area and do not impose any additional
regulatory requirements on sources beyond those imposed by the TIP.
Redesignation to attainment does not in and of itself create any new
requirements, but rather results in the applicability of requirements
contained in the CAA for areas that have been redesignated to
attainment. Moreover, under circumstances where a tribe is determined
as eligible for TAS for the purposes of section 110 with respect to a
given TIP, the Administrator is required to approve a TIP submission
that complies with the provisions of the Act and applicable Federal
regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing TIP
submissions, the EPA's role is to approve tribal choices, provided that
they meet the criteria of the Clean Air Act. Accordingly, these actions
merely propose to approve a tribal plan and redesignation request as
meeting Federal requirements and do not impose additional requirements
beyond those imposed by tribal law. For these reasons, these proposed
actions:
Are not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Are certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Do not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Are not an economically significant regulatory action
based on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Are not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Are not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Do not provide the EPA with the discretionary authority to
address disproportionate human health or environmental effects with
practical, appropriate, and legally permissible methods under Executive
Order 12898 (59 FR 7629, February 16, 1994).
In addition, given the nature of these proposed actions, we presume
that the proposed actions would have ``tribal implications'' as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
with respect to the Pechanga Tribe. However, the proposed actions would
not impose substantial direct compliance costs or preempt tribal law.
Moreover, these proposed actions respond directly to specific requests
submitted by the affected tribe and follow from extensive coordination
and consultation between representatives of the Pechanga Tribe and the
EPA about these and other related matters.
List of Subjects
40 CFR Part 49
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
40 CFR Part 81
Environmental protection, Air pollution control, Intergovernmental
relations, National parks, Ozone, Wilderness areas.
Dated: December 23, 2014.
Alexis Strauss,
Acting Regional Administrator, EPA Region 9.
[FR Doc. 2014-30830 Filed 1-5-15; 8:45 am]
BILLING CODE 6560-50-P