[Federal Register Volume 75, Number 86 (Wednesday, May 5, 2010)]
[Rules and Regulations]
[Pages 24409-24421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9599]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[EPA-R09-OAR-2008-0467; FRL-9141-8]
Designation of Areas for Air Quality Planning Purposes;
California; San Joaquin Valley, South Coast Air Basin, Coachella
Valley, and Sacramento Metro 8-Hour Ozone Nonattainment Areas;
Reclassification
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Under the Clean Air Act (CAA or ``Act''), EPA is granting
requests by the State of California to reclassify the following four
areas designated as nonattainment for the 1997 8-hour ozone national
ambient air quality standard (NAAQS): The San Joaquin Valley area from
``serious'' to ``extreme,'' the South Coast Air Basin area from
``severe-17'' to ``extreme,'' and the Coachella Valley and Sacramento
Metro areas from ``serious'' to ``severe-15.'' In connection with the
reclassifications, EPA is setting a deadline of no later than 12 months
from the effective date of reclassification for submittal of revisions
to the Sacramento Metro area portion of the California State
Implementation Plan (SIP) to meet the additional new source review
(NSR) requirements for ``severe-15'' 8-hour ozone nonattainment areas.
EPA is deferring the setting of a submittal deadline for certain fee
rules under section 185 of the CAA. A number of Indian tribes have
Indian country located within the boundaries of the affected areas. The
State of California is not approved to administer any CAA programs in
Indian country, and the relevant Indian tribes have not applied for
eligibility to administer programs under the CAA for their areas. In
these circumstances, EPA implements relevant reclassification
provisions of the CAA in these Indian country areas and is
reclassifying these areas, except Indian country pertaining to the
Morongo Band of Mission Indians (``Morongo Tribe'') and the Pechanga
Band of Luise[ntilde]o Mission Indians (``Pechanga Tribe''), in keeping
with the classifications of nonattainment areas
[[Page 24410]]
within which they are located. EPA is deferring the reclassification of
Indian country pertaining to the Morongo and Pechanga Tribes pending
EPA's final decisions on their previously-submitted boundary change
requests. In connection with this final action, EPA notified the
affected tribal leaders and consulted with interested tribes.
DATES: Effective Date: This rule is effective on June 4, 2010.
ADDRESSES: EPA has established docket number EPA-R09-OAR-2008-0467 for
this action. The index to the docket 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.,
confidential business information). To inspect the hard copy materials,
please schedule an appointment during normal business hours with the
contact listed in the FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Rory Mays, Air Planning Office (AIR-
2), U.S. Environmental Protection Agency, Region IX, (415) 972-3227,
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,''
``us,'' and ``our'' refer to EPA.
Table of Contents
I. Proposed Action
II. Deferral of SIP Submittal Deadlines for CAA Section 185 Fee
Rules
III. Deferral of Reclassification for Morongo Band of Mission
Indians and Pechanga Band of Luise[ntilde]o Mission Indians
IV. Public Comments and EPA Responses
V. Final Action
VI. Statutory and Executive Order Reviews
I. Proposed Action
On August 27, 2009 (74 FR 43654), we proposed to grant the
following reclassification requests by the State of California: the San
Joaquin Valley area from ``serious'' to ``extreme,'' the South Coast
Air Basin area from ``severe-17'' to ``extreme,'' and the Coachella
Valley and Sacramento Metro areas from ``serious'' to ``severe-15.''
We proposed approval of these requests under section 181(b)(3) of
the CAA, which provides for ``voluntary reclassification'' and states:
``The Administrator shall grant the request of any State to reclassify
a nonattainment area in that State in accordance with Table 1 of
subsection (a) of this section to a higher classification. The
Administrator shall publish a notice in the Federal Register of any
such request and of action by the Administrator granting the request.''
The provision for voluntary reclassification has been brought forward
as part of the transition from the 1-hour ozone standard to the 8-hour
ozone standard. See 40 CFR 51.903(b) (``A State may request a higher
classification for any reason in accordance with section 181(b)(3) of
the CAA'') and 40 CFR 51.903(a) Table 1.
For each of the four areas, we compared a list of the specific
additional requirements that would be triggered for each area as a
consequence of our approval of the reclassification requests with the
revisions to the SIP that the State of California had already
submitted. For any requirement in any area lacking a submittal from the
State, we proposed a deadline for submission.
Based on this evaluation, we proposed to establish a deadline of no
later than 12 months from the effective date of reclassification for
submittal of revisions to the Coachella Valley portion of the SIP to
meet the CAA section 185 fee requirements (``section 185 fee rules'').
EPA also proposed the same deadline for submittal of revisions to the
Sacramento Metro area portion of the SIP to meet the following
additional SIP requirements for ``severe-15'' areas: NSR rules
consistent with this classification (Sacramento Metropolitan Air
Quality Management District (AQMD), Placer County Air Pollution Control
District (APCD), and Feather River AQMD only) and section 185 fee rules
(El Dorado County AQMD, Placer County APCD, Feather River AQMD, and
Yolo-Solano AQMD only). As discussed in section II of this final rule,
EPA has decided to defer setting a SIP submittal deadline for section
185 fee rules.
In our proposed rule, we considered the relevance of the State's
reclassification requests to reclassification of Indian country \1\
located within the four nonattainment areas. We proposed to directly
administer CAA section 181(b)(3) and reclassify Indian country
geographically located in the nonattainment areas that are the subject
of the State's reclassification requests in order to avoid
inappropriate and infeasible results, consistent with EPA's
discretionary authority in CAA sections 301(a) and 301(d)(4) to
directly administer CAA programs and to protect air quality in Indian
country through federal implementation.
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\1\ ``Indian country'' as defined at 18 U.S.C. 1151 refers to:
``(a) all land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and, including rights-of-way running through
the reservation, (b) all dependent Indian communities within the
borders of the United States whether within the original or
subsequently acquired territory thereof, and whether within or
without the limits of a state, and (c) all Indian allotments, the
Indian titles to which have not been extinguished, including rights-
of-way running through the same.''
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In so doing, we explained why uniformity of classification
throughout a nonattainment area is a guiding principle and premise when
an area is being reclassified. We noted that ground-level ozone
continues to be a pervasive pollution problem in areas throughout the
United States and that ozone and precursor pollutants that cause ozone
can be transported throughout a nonattainment area. Therefore,
boundaries for nonattainment areas are drawn to encompass both the
areas that violate the NAAQS as well as nearby contributing areas. For
certain areas designated as nonattainment for the 8-hour ozone NAAQS,
such as those to which this action applies, initial classifications
occur by operation of law and exactly match the boundaries of the
respective nonattainment areas. We believe that this approach best
ensures public health protection from the adverse effects of ozone
pollution and that, therefore, it is generally counterproductive from
an air quality and planning perspective to have a disparate
classification for a land area located within the boundaries of a
nonattainment area, such as the Indian country contained in the ozone
nonattainment areas at issue here. Moreover, we noted that violations
of the 8-hour ozone standard, which are measured and modeled throughout
each nonattainment area, as well as shared meteorological conditions,
would dictate the same result. Furthermore, emissions changes in lower-
classified ozone areas could hinder planning efforts to attain the
NAAQS within the overall area through the application of less stringent
requirements relative to those that apply in the areas with higher
ozone classifications.
With regard to the Indian country at issue in our proposed action,
EPA also took into account other factors. For example, we proposed that
the likelihood of attainment by the applicable deadline under the
current classification is an appropriate consideration for
reclassifying Indian country within the larger nonattainment areas. If
EPA believes it is likely that a given ozone nonattainment area will
not attain the ozone NAAQS by the applicable attainment date, then it
may be an additional reason why it is appropriate to maintain a uniform
classification within the nonattainment area and thus to reclassify the
Indian
[[Page 24411]]
country consistent with the State's request to reclassify the non-
Indian country portion of the area. On the other hand, if EPA believes
that meeting the original attainment date for the whole nonattainment
area appears still to be a reasonable possibility, then it conceivably
might be appropriate for EPA to decline to reclassify Indian country,
notwithstanding the State's request to reclassify the State portion of
the area, and notwithstanding the generally weighty considerations that
support the retention of a single uniformly-classified nonattainment
area. Such considerations include the pervasive nature of the ozone
problem, and the transport of ozone and ozone precursors over a wide
geographic area. Depending on the circumstances, other factors might
also provide justifications for refraining from reclassifying Indian
country in conjunction with granting a State's request for voluntary
reclassification of State areas in the same nonattainment area.
With respect to the four subject areas, we evaluated the likelihood
of attainment by the area's existing attainment deadline, based on
information that is currently available. That evaluation was aided by
the fact that the State of California has already submitted attainment
demonstrations for these four areas that are intended to support later
attainment dates under their requested new, higher classifications. We
also noted that EPA was not determining which new attainment date is as
expeditious as practicable for each area, nor whether these attainment
demonstrations are approvable.
In light of the considerations we outlined in our proposal and
reiterated above that support retention of uniformly-classified ozone
nonattainment areas, and the evidence (in the form of plan submittals
for the four areas) that provides support for an attainment date beyond
the date applicable under the current classifications, we proposed to
reclassify the Indian country within each area \2\ as follows: Areas
within San Joaquin Valley and South Coast Air Basin to ``extreme'', and
areas within Coachella Valley and Sacramento Metro to ``severe-15.'' As
discussed in section III of this final rule, EPA has decided to defer
reclassification of Indian country pertaining to the Morongo Tribe and
the Pechanga Tribe pending EPA's final decisions on their boundary
change requests.
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\2\ In section III.B of the preamble to the proposed rule, we
identified the tribes with Indian country in each of the four
subject nonattainment areas. In so doing, we inadvertently failed to
identify two tribes that have Indian country in Coachella Valley:
The Santa Rosa Band of Cahuilla Indians and the Twenty-Nine Palms
Band of Mission Indians. EPA had invited both tribes to consult with
EPA regarding prospective EPA action to reclassify Indian country
within five nonattainment areas in California, including the four
areas subject to today's action as well as Western Mojave Desert.
(As noted in footnote 8 of the preamble to the proposed
rule, EPA plans to take action related to California's
reclassification request for Western Mojave Desert in a separate
rulemaking.) Since we inadvertently failed to identify these two
Tribes as having Indian country in Coachella Valley in section III.B
of the proposed rule, we contacted them to clarify that our proposal
to reclassify Indian country areas within Coachella Valley to
``severe-15'' relates to all Indian country located therein
notwithstanding the incomplete list of such areas in section III.B
of the proposal. Neither Tribe has responded to EPA's invitation to
consult nor expressed either their assent or objection to
reclassification of their lands in Coachella Valley in response to
our contacts on this matter.
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Please see our August 27, 2009 proposed rule (74 FR 43654) for
additional background and a more detailed explanation of our proposed
action.
II. Deferral of SIP Submittal Deadlines for CAA Section 185 Fee Rules
In our August 27, 2009 proposed rule, we proposed to set a deadline
of no later than 12 months from the effective date of the final
reclassifications for the State of California to submit revisions to
the SIP to address CAA section 185 fee requirements for certain 8-hour
ozone nonattainment areas: Coachella Valley and Sacramento Metro (El
Dorado County AQMD, Placer County APCD, Feather River AQMD, and Yolo-
Solano AQMD only).
Upon further consideration, we have decided to defer the setting of
a deadline for submittal of a SIP revision addressing the section 185
fee requirements for any area affected by this action. Under CAA
section 185, the obligation to collect fees could not be triggered
until after an area fails to attain the NAAQS by its applicable
attainment date. Assuming that the maximum period for attainment
represents the date for which attainment is as ``expeditious as
practicable'' in the areas subject to the new 8-hour classifications
under today's rulemaking, the obligation to collect fees under any fee
rule submitted to comply with section 185 could not possibly be due
until after June 15, 2019 (for Sacramento Metro and Coachella Valley)
or after June 15, 2024 (for San Joaquin Valley and the South Coast).
EPA recently issued guidance regarding 1-hour ozone anti-backsliding
fee programs \3\ but has not yet completed its consideration of the
relationship between 1-hour and 8-hour fee programs for these areas.
There is at present no immediate need to set a deadline for submission
of the 8-hour fees SIP program as we believe that there will be
sufficient time for EPA to establish a SIP revision deadline for this
requirement and for the State of California to develop and submit the
necessary fee rules.\4\ Indeed, in a previous EPA action granting a
request for voluntary reclassification of the Houston-Galveston-
Brazoria (Texas) 8-hour ozone nonattainment area to ``severe-15'', EPA
also deferred setting a deadline for the section 185 fee SIP
submission. See 73 FR 56983 (October 1, 2008), especially footnote 1.
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\3\ Memorandum from Stephen D. Page, Director, Office of Air
Quality Planning and Standards, ``Guidance on Developing Fee
Programs Required by Clean Air Act Section 185 for the 1-hour Ozone
NAAQS,'' January 5, 2010.
\4\ Notwithstanding our decision to defer setting a SIP revision
deadline for section 185 fee rules, we note that, upon
reclassification, the requirement to submit SIP revisions meeting
the requirements of CAA section 185 will apply to each of the four
subject areas of this action by virtue of being classified as
``severe-15'' or ``extreme'' for the 8-hour ozone NAAQS.
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III. Deferral of Reclassification for Morongo Band of Mission Indians
and Pechanga Band of Luise[ntilde]o Mission Indians
As described in section I (``Proposed Action'') above, in our
August 27, 2009 proposed rule, we proposed to directly administer CAA
section 181(b)(3) and reclassify Indian country within the four subject
areas in keeping with the State's reclassification requests for the
surrounding non-Indian country lands and consistent with EPA's
discretionary authority in CAA section 301(a) and 301(d)(4) to directly
administer CAA programs and protect air quality in Indian country
through federal implementation. For the South Coast Air Basin
nonattainment area, we named seven tribes whose Indian country would be
reclassified to ``extreme'' for 8-hour ozone.
Two of these tribes, the Morongo and Pechanga Tribes, submitted
comments on our proposed action in which they objected to being
reclassified to ``extreme.'' (See section IV (``Public Comments and EPA
Responses'') below.) In their comment letters, the Tribes reiterated
their requests from May 29, 2009 and June 23, 2009, respectively, for
boundary changes to establish separate nonattainment areas or, in the
alternative, to extend the boundaries of adjacent, lower-classified
nonattainment areas to include the Tribes' Indian country. We refer to
these requests herein as ``boundary change'' requests. The Tribes'
comment letters also provided substantive analyses to
[[Page 24412]]
support their objections to reclassification that largely mirror their
boundary change requests. In both cases, the Tribes specifically
request that no change be made to the classification of their
respective Indian country located within the South Coast Air Basin
pending EPA's final decisions regarding the Tribes' boundary change
requests.
Upon consideration of these comments, we have decided to defer the
reclassification of the Indian country pertaining to the Morongo and
Pechanga Tribes within the South Coast Air Basin (``the Morongo and
Pechanga Reservations'') to ``extreme'' for the 8-hour ozone standard,
pending our final decisions on the Tribes' boundary change requests to
avoid any inconsistency that might result from reclassification of the
Morongo and Pechanga Reservations and decisions addressing the Tribes'
boundary change requests. We believe that this deferral will avoid
confounding our further consideration of the Tribes' boundary change
requests.
If we grant a boundary change for either Tribe, we will specify the
consequence of such action in a separate rulemaking on the designation
and classification of that Tribe's Reservation. If we deny a boundary
change request for either Tribe, we will take final action on our
August 27, 2009 proposal to reclassify that Tribe's Reservation to
``extreme'', consistent with the rest of the nonattainment area, after
due consideration of the Tribe's submitted comments. Until those
separate actions are finalized, the Indian country of the Morongo and
Pechanga Tribes in the South Coast Air Basin area will retain a
classification of ``severe-17'' for the 1997 8-hour ozone NAAQS.
This deferral of our decisions on reclassification is limited in
scope to the Morongo and Pechanga Reservations, and in time only until
EPA finalizes our decisions on these Tribes' boundary change requests.
We are finalizing the reclassification of all other Indian country in
the four subject areas to higher classifications in keeping with the
State's reclassification requests, including the five other Tribes we
listed in our proposed rule as having Indian country within the South
Coast Air Basin. (See section V (``Final Action'') below.)
IV. Public Comments and EPA Responses
The publication of EPA's proposed rule on August 27, 2009 (74 FR
43654) started a public comment period that ended on September 28,
2009. During this period, we received a comment letter from the Morongo
Tribe, and an anonymous comment letter. We also accepted a comment
letter received from the Pechanga Tribe on October 6, 2009, after the
comment period had closed. In the paragraphs that follow, we summarize
the comments from the Morongo and Pechanga Tribes and the anonymous
commenter, and provide our responses.
Comment #1: The Morongo Tribe, in its comments, highlights its May
29, 2009 request to EPA (and accompanying rationale and documentation)
for the establishment of a separate nonattainment area for the Morongo
Reservation or, in the alternative, for a boundary change to extend the
western boundary of the Coachella Valley nonattainment area to include
the Morongo Reservation. With respect to the proposed reclassification
of Indian country in the South Coast Air Basin, which includes the
Morongo Reservation, to ``extreme'' for the 8-hour ozone NAAQS, the
Morongo Tribe objects to our proposal to reclassify the Morongo
Reservation in the same manner as the South Coast Air Basin. The Tribe
argues that the Morongo Reservation should be treated as its own
nonattainment area or, in the alternative, should be redesignated as
part of the Coachella Valley nonattainment area, and thus retain its
existing classification.
The Pechanga Tribe similarly objects to the reclassification of the
Pechanga Reservation to ``extreme,'' consistent with the
reclassification of the South Coast Air Basin nonattainment area. Like
the Morongo Tribe, the Pechanga Tribe points to its June 23, 2009
request to EPA (and accompanying rationale and documentation) for the
establishment of a separate nonattainment area for the Pechanga
Reservation or, in the alternative, for a boundary change to extend the
northern boundary of the San Diego Air Basin nonattainment area to
include the entirety of the Pechanga Reservation.
The Morongo and Pechanga Tribes believe that the factors used for
initial area designations and for subsequent reclassifications of those
areas should be the same. Specifically, the Tribes point to EPA's
December 2008 guidance for area designations for the 2008 Revised Ozone
NAAQS \5\ as the appropriate guidance to apply in evaluating whether to
include the Morongo and Pechanga Reservations in the reclassification
of the South Coast Air Basin to ``extreme.'' The Morongo Tribe asserts
that EPA's failure to use the December 2008 guidance in evaluating
whether to include the Morongo Reservation in the reclassification
action appears to be an arbitrary and capricious exercise of EPA's
authority. The Pechanga Tribe asserts that EPA's failure to use that
guidance in evaluating whether to include the Pechanga Reservation in
the reclassification action ignores tribal interests. The Tribes
contend that the December 2008 guidance provides the factors \6\ that
EPA should have used for the proposed action with respect to the
Morongo and Pechanga Reservations. They also include detailed
evaluations of the application of the factors from the December 2008
guidance to their areas, as suggested by the 2008 guidance for
determining nonattainment area boundaries in designations for the 2008
Ozone NAAQS.\7\
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\5\ See 73 FR 16436 (March 27, 2008) for the 2008 Revised Ozone
NAAQS.
\6\ See Attachment 2 of the memorandum from Robert J. Myers,
Principal Deputy Assistant Administrator, ``Area Designations for
the 2008 Revised Ozone National Ambient Air Quality Standards,''
December 4, 2008. Attachment 2 is entitled, ``Factors EPA Plans to
Consider in Determining Nonattainment Area Boundaries in
Designations for the 2008 Ozone NAAQS.''
\7\ EPA is in the process of reconsidering the 2008 8-hour ozone
NAAQS. As part of this process, EPA has proposed a revised ozone
NAAQS (75 FR 2938, January 19, 2010) and extended the deadline for
promulgating designations for the 2008 ozone NAAQS (75 FR 2936,
January 19, 2010). Depending on the outcome of this reconsideration,
we may issue new guidance for determining ozone nonattainment area
boundaries.
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Based on these evaluations, the Tribes conclude that consideration
of the factors from the December 2008 guidance supports a decision not
to reclassify the Morongo and Pechanga Reservations along with the
South Coast Air Basin, but rather to redesignate the Reservations as
separate nonattainment areas and to retain each Reservation's current
classification.
Response #1: We disagree that the EPA guidance on initial area
designations for the 2008 ozone NAAQS provides the factors we must use
in evaluating whether to reclassify Indian country located within a
nonattainment area for which a State has voluntarily requested
reclassification. That guidance is intended to provide a consistent set
of principles to apply in identifying the initial boundaries of
nonattainment areas during the designations process. In contrast, once
an area's initial boundary is established, the retention of a single
uniformly-classified area becomes a guiding principle and premise in
determining whether to reclassify Indian country located within the
area in light of a State's voluntary request for such a
reclassification of non-Indian country lands.
[[Page 24413]]
We do believe, however, that the December 2008 guidance is
appropriate for use in supporting requests for boundary changes, such
as the requests submitted by the Morongo Tribe on May 29, 2009 and by
the Pechanga Tribe on June 23, 2009.\8\ As described in section III of
this final rule, we have decided to defer reclassification of the
Morongo and Pechanga Reservations pending our final decisions on their
boundary change requests.
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\8\ EPA's December 2008 guidance states that the factors, while
generally comprehensive, are not intended to be exhaustive. States
and tribes may submit additional information they believe is
relevant for EPA to consider.
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We acknowledge the Tribe's hypothesis that ozone nonattainment
areas may be inherently defined by a single classification as well as a
boundary and that retaining the existing classification of the Morongo
and Pechanga Reservations would have the effect of creating new ozone
nonattainment areas. Under this hypothesis, the application of EPA's
December 2008 guidance would be appropriate in evaluating whether to
reclassify Indian country consistent with the State's requests for
reclassification of non-Indian country. However, use of the guidance in
this way is indistinguishable from reconsidering the boundaries of the
nonattainment areas themselves, and reconsideration of the boundaries
is an action that we explicitly stated we would not be undertaking in
the reclassification action. See footnote 13 on page 43660 of the
preamble to the proposed rule (74 FR 43654). We will, however, consider
the Tribes' nine-factor analyses in detail in our consideration of
their boundary change requests.
With respect to the factors that we considered in evaluating the
appropriateness of reclassification of Indian country in our proposed
rule, we provided a number of reasons supporting our use of the guiding
principle and premise of uniformity of classification when an area is
being reclassified (see pages 43659 and 43660). In addition, we also
identified certain circumstances when it might be appropriate to defer
reclassification of Indian country, notwithstanding the State's request
to reclassify the State portion of the area, such as where an area is
likely to attain the standard by the attainment date under the existing
classification. Thus, other considerations could outweigh the guiding
principle and premise of uniformity of classification. Upon
consideration of the circumstances in each area, however, we concluded
that no such considerations exist in this instance in any of the four
subject areas. Therefore, with the exception of the Morongo and
Pechanga Reservations for which are deferring final action, we are
taking final action today to reclassify the Indian country in the four
subject nonattainment areas to higher classifications consistent with
the State's reclassification requests for these areas.
Comment #2: The Morongo Tribe asserts that the State of California
has no jurisdiction to redesignate or reclassify the Morongo
Reservation; that, consequently, California's requests for
reclassification have no legal import to the Reservation and cannot
serve as the legal basis for the redesignation or reclassification of
tribal lands.
Response #2: We agree that the State is not authorized to implement
CAA programs in Indian country. The State's requests for
reclassification of the four ozone nonattainment areas was the impetus
for our proposed action, but did not form the legal basis for our
proposed action with respect to Indian country contained therein. Under
CAA section 181(b)(3), EPA must grant the requests of the State to
reclassify the non-tribal lands in the nonattainment areas. The
question then becomes what EPA's action should be with regard to the
Indian country contained within these areas. In the preamble to our
proposed rule, we described the legal authority we have relied upon to
reclassify Indian country in the four subject areas as follows:
Typically, states are not approved to administer programs under
the CAA in Indian country, and California has not been approved by
EPA to administer any CAA programs in Indian country. CAA actions in
Indian country would thus generally be taken either by EPA, or by an
eligible Indian tribe itself under an EPA-approved program. In this
instance, none of the affected tribes has applied under CAA section
301(d) for treatment-in-a-similar-manner-as-a-state for purposes of
reclassification requests under section 181(b)(3), and none operates
any relevant EPA-approved CAA regulatory program (e.g., a tribal
implementation plan). In addition, the CAA does not require Indian
tribes to develop and seek approval of air programs, and--pursuant
to our authority in CAA section 301(d)--EPA has interpreted relevant
CAA requirements for submission of air programs as not applying to
tribes. See 40 CFR section 49.4. In these circumstances, EPA is the
appropriate entity to administer relevant CAA programs in Indian
country. EPA is proposing to directly administer CAA section
181(b)(3) and reclassify Indian country geographically located in
the nonattainment areas that are the subject of the State's
reclassification request, consistent with EPA's discretionary
authority in CAA sections 301(a) and 301(d)(4) to directly
administer CAA programs and protect air quality in Indian country
through federal implementation. Section 301(a) authorizes the
Administrator `to prescribe such regulations as are necessary to
carry out his functions under the [the Act.]' Further, section
301(d) provides:
In any case in which the Administrator determines that the
treatment of Indian tribes as identical to States is inappropriate
or administratively infeasible, the Administrator may provide, by
regulation, other means by which the Administrator will directly
administer such provision so as to achieve the appropriate purpose.
While tribes may choose to apply for eligibility to adopt
implementation plans and seek reclassification of their areas in a
manner similar to states, tribes need not do so.''
See 74 FR 43654, at 43659 (August 27, 2009).
In today's action, we reaffirm the jurisdictional basis for EPA's
authority to decide whether or not to reclassify Indian country in
ozone nonattainment areas in keeping with a State's voluntary
reclassification request, as per CAA section 181(b)(3). As noted in
section III of this final rule, we have decided to defer
reclassification of the Morongo and Pechanga Reservations pending our
final decisions on their boundary change requests to avoid confounding
our further consideration of the Tribes' boundary change requests. For
all other Indian country located within the four subject nonattainment
areas, under the authorities cited above, we are taking final action
today to reclassify such Indian country consistent with the State's
reclassification requests.
Comment #3: The Morongo and Pechanga Tribes assert that including
the Morongo and Pechanga Reservations in the reclassification of the
South Coast Air Basin to ``extreme'' will negatively impact the Tribe's
efforts to develop a tribal air permit program and to facilitate
economic development on the Reservation. The Pechanga Tribe believes
that including the Pechanga Reservation in the reclassification of the
South Coast Air Basin to ``extreme'' for the 8-hour ozone standard
would reduce the applicable ``major source'' threshold from 25 tons per
year, to 10 tons per year, of VOC or NOX. The Morongo Tribe
states that the reclassification of the South Coast Air Basin to
``extreme'' would further cement the 10 tons per year threshold that
began to apply as of the 2003 boundary change that brought the Morongo
Reservation inside the South Coast Air Basin. This 10 tons per year
threshold would, in the Tribes' view, prevent the implementation of a
meaningful minor source permitting program, increase the number of
facilities potentially subject to ``major
[[Page 24414]]
source'' new source review with a concomitant increase in the use and
cost of tribal staff and facility resources, and increase the number of
future facilities subject to title V Federal operating permit
requirements.
Response #3: This comment refers specifically to major source
thresholds in the South Coast Air Basin, but calls into question the
effect of reclassification on major source thresholds for NSR and Title
V purposes in Indian country within each of the four subject
nonattainment areas. We disagree with the assertion that
reclassification of Indian country in the South Coast Air Basin would
change the applicable major source threshold for NSR or Title V.
Indeed, these thresholds will not change in any of the four subject
areas. As explained in detail on page 43661 of the preamble to the
proposed rule, the applicable major source thresholds for NSR and Title
V would not change due to reclassification because the thresholds for
the purposes of NSR and title V that had applied by virtue of the
areas' classifications under the 1-hour ozone standard continue to
apply as anti-backsliding measures under the 8-hour ozone standard, and
the new 8-hour ozone classification for each of the four subject areas,
as reclassified, would be the same as each area's corresponding 1-hour
ozone classification.
With respect to Indian country within the South Coast Air Basin,
including the Morongo and Pechanga Reservations, and within San Joaquin
Valley, this means that the applicable major source threshold for NSR
and Title V purposes is already 10 tons per year for VOC or
NOX, with or without reclassification to ``extreme'' for 8-
hour ozone, because the South Coast Air Basin and the San Joaquin
Valley are already ``extreme'' for the 1-hour ozone standard. For
Indian country within Coachella Valley and Sacramento Metro, this means
that the applicable major source threshold for NSR and Title V purposes
is already 25 tons per year for VOC or NOX. Thus, to the
extent that a change in NSR major source threshold might affect
economic development prospects of any Tribe in one of the four subject
nonattainment areas, today's action would have no such effect since it
does not change the NSR major source threshold for any Tribe.
As noted previously, we are deferring reclassification of the
Morongo and Pechanga Reservations, but for the reasons provided above,
neither reclassification to ``extreme'' nor deferral of
reclassification would affect the applicable major source threshold for
NSR and Title V purposes within the Morongo and Pechanga Reservations.
The applicable major source threshold is already 10 tons per year of
VOC or NOX based on the classification of the South Coast
Air Basin under the 1-hour ozone NAAQS.
Comment #4: The Pechanga Tribe states that, for existing and future
facilities subject to nonattainment NSR, there is no system in place
for facilities on tribal lands to obtain emission reduction credits. As
such, these facilities, including those that are Native American-owned,
would be at a disadvantage relative to facilities located outside of
Indian country.
Response #4: In our Indian country NSR proposal (71 FR 48696, 8/21/
2006) we noted that ``[d]ue to the limited number of sources in Indian
country, offsets are generally not available. We have proposed options
for addressing the lack of availability of offsets in Indian country.''
However, for reasons given above in our response to comment 3,
reclassification of Indian country within the four subject
nonattainment areas would not affect the offset requirement that
emission reduction credits (ERCs) are commonly used to meet. That is,
since applicable NSR requirements, including the major source threshold
definition and offset requirements, in the four subject areas are based
on the areas' classifications for the 1-hour ozone NAAQS, and the new
8-hour ozone classification for each of the four subject areas, as
reclassified, would be the same as the area's corresponding 1-hour
ozone classification, reclassification would not change the offset
requirement. Thus, the problem of the relative lack of available ERCs
within the Indian country areas within the four subject areas would not
be affected by reclassification.
With respect to the Pechanga Tribe, we once again note that we are
deferring reclassification of both the Morongo and Pechanga
Reservations pending our decisions on their respective boundary change
requests. However, such deferral has no bearing on the applicable NSR
offset requirements within these two reservations, nor does it affect
the relative lack of available ERCs. The current applicable offset
ratio for VOC and NOX for the Morongo and Pechanga
Reservations continues to be based on the classification of the South
Coast Air Basin as ``extreme'' for the 1-hour ozone NAAQS. (See CAA
sections 182(e)(1) and 182(f) for offset requirements of ``extreme''
areas.)
Comment #5: The Morongo and Pechanga Tribes assert that reducing
the threshold for the applicability of General Conformity requirements
from 25 to 10 tons per year VOC or NOX would require many
more projects to demonstrate that their emissions of criteria
pollutants will not impede progress toward attainment of the NAAQS.
Response #5: We agree that reclassification of the South Coast Air
Basin, as proposed, would lower the applicability threshold under our
General Conformity rule from 25 tons per year to 10 tons per year. We
also note that reclassification of the other three nonattainment areas
would also lower the applicable de minimis thresholds under EPA's
General Conformity rule in those areas.
As explained in the preamble of our proposed rule (see pages 43658
and 43661), under EPA's General Conformity rule, Federal agencies bear
the responsibility of determining conformity of actions in
nonattainment and maintenance areas that require Federal permits,
approvals, or funding. Therefore, not all projects undertaken by the
Tribes are subject to the General Conformity rule, but only those
tribal projects that require Federal agency permits, approvals or
funding. Moreover, the definition of ``indirect emissions'' in the
General Conformity rule (see 40 CFR 93.152) further limits the reach of
the rule by requiring that emissions caused by the action be reasonably
foreseeable and of the type which the Federal agency can practicably
control and can maintain control over due to a continuing program
responsibility of the Federal agency.
Furthermore, the potential impacts associated with any lowering of
a General Conformity de minimis threshold are not unique to Federal
actions proposed in Indian country--they affect Federal actions
throughout a given nonattainment area. Please note that the General
Conformity rule excludes from the applicability determination that
portion of a Federal action that includes major new or modified
stationary sources that require a permit under the NSR program (CAA
section 173) or the prevention of significant deterioration program
(CAA Title I, Part C). See 40 CFR 93.153(d)(1).
Lastly, because we have decided to defer reclassification of the
Morongo and Pechanga Reservations, the General Conformity threshold
will remain at 25 tons per year of VOC or NOX for these
Reservations pending our final decisions on the Tribes' boundary change
requests.\9\
---------------------------------------------------------------------------
\9\ The General Conformity de minimis threshold for the South
Coast Air Basin, including all Indian country therein except the
Morongo and Pechanga Reservations, will be lowered from 25 tons per
year to 10 tons per year by virtue of this final rule.
---------------------------------------------------------------------------
[[Page 24415]]
Comment #6: An anonymous commenter states that San Joaquin Valley
has not applied the 1-hour ozone anti-backsliding measures and has not
reviewed permits according to the NSR requirements of an ``extreme'' 1-
hour ozone nonattainment area. The commenter also states that the lower
permitting thresholds and higher offset ratio for San Joaquin Valley
have been in effect since the May 2004 action that classified the area
as ``extreme'' for 1-hour ozone. Accordingly, the commenter insists
that EPA must require San Joaquin Valley to evaluate all of its
permitting actions from that point forward against the requirements of
an ``extreme'' 1-hour ozone classification.
Response #6: This comment is outside the scope of our proposed
action. This comment does not challenge our proposed action to grant
the State of California's request under 40 CFR 51.903(b) and CAA
section 181(b)(3) to reclassify the San Joaquin Valley nonattainment
area to ``extreme'' for the 1997 8-hour ozone standard nor does it
challenge our decision not to establish any new SIP revision deadlines
for the San Joaquin Valley area. Instead, it pertains to the
implementation and enforcement of 1-hour ozone ``extreme'' NSR
permitting requirements in the San Joaquin Valley at the corresponding
major source threshold and offset ratio for that classification. As
noted in footnote 18 on page 43662 of the preamble to our
proposed rule: ``The deadlines proposed herein relate solely to
specific additional requirements triggered by the reclassification for
the 8-hour ozone NAAQS and should not be interpreted as relieving an
area of any existing obligation that the area has based on its 1-hour
ozone classification, or of existing obligations not related to
attainment that are based on its current 8-hour ozone classification.''
Moreover, the NSR requirements to which EPA refers in the proposed
rule relate to the State of California's obligation to submit SIP
revisions meeting the statutory requirements, not to the requirements
on new stationary sources and modifications themselves.\10\ In March
2009, the State of California submitted a SIP revision including NSR
rules that apply in the San Joaquin Valley that are intended to address
the ``extreme'' 8-hour ozone nonattainment area NSR requirements. On
April 12, 2010, EPA's Region 9 Regional Administrator signed a final
rule to take a limited approval and limited disapproval action on this
SIP revision. The pre-publication version of this final rule has been
placed in the docket.
---------------------------------------------------------------------------
\10\ See, e.g., page 43658 of the preamble to the proposed rule
(74 FR 43654)(``In regards to * * * the requirements for SIPs
regarding * * * (``new source review''), the reclassifications would
not lower the ``major source'' applicability thresholds required in
a revised SIP * * *'').
---------------------------------------------------------------------------
V. Final Action
We believe that the plain language of CAA section 181(b)(3)
mandates that we approve voluntary reclassification requests,\11\ and
thus, EPA is taking final action to grant the State's request for the
following voluntary reclassifications: the San Joaquin Valley area from
``serious'' to ``extreme''; the South Coast Air Basin area from
``severe-17'' to ``extreme''; and the Coachella Valley and Sacramento
Metro areas from ``serious'' to ``severe-15.'' Upon the effective date
of this final action granting the reclassifications, these four areas
are required to attain the 8-hour ozone NAAQS as expeditiously as
practicable, but not later than the applicable maximum attainment
period set forth in 40 CFR 51.903(a), Table 1: June 15, 2024 for San
Joaquin Valley and the South Coast Air Basin; and June 15, 2019 for
Coachella Valley and Sacramento Metro.\12\
---------------------------------------------------------------------------
\11\ The reclassification requests submitted by the State of
California do not explicitly address Indian country located within
the various ozone nonattainment areas. We have assumed that the
State of California's request relates only to the portions of the
nonattainment areas that lie outside of Indian country because the
State is not approved to implement the CAA in Indian country located
within the state.
\12\ Because we are reclassifying Indian country in these areas
consistent with the classifications requested by the State (with the
exception of the two reservations for which we are deferring
reclassification), the new attainment dates apply area-wide to both
State lands and Indian country located therein. Unlike the State of
California, however, the Indian tribes located within the four
subject areas are not subject to specific plan submittal and
implementation deadlines under the new ozone classifications. See 40
CFR 49.4.
---------------------------------------------------------------------------
In connection with reclassification of the four subject areas, and
for the reasons discussed above and in the proposed rule, we are
establishing the deadline of no later than 12 months from the effective
date of reclassification for submittal of revisions to the Sacramento
Metro portion (Sacramento Metropolitan AQMD, Placer County APCD, and
Feather River AQMD only) of the California SIP to meet the NSR
requirements of a ``severe-15'' area. As discussed above, EPA is
deferring the setting of a submittal deadline for revision to the
California SIP for the four subject areas to meet the requirements of
CAA section 185. With the exceptions of submittal requirements for SIP
revisions for the NSR requirements for the Sacramento Metro area, and
the section 185 fee requirements for the four subject areas, we have
determined that the State has submitted SIP revisions for all other
additional requirements for the four subject areas. As such, there is
no need to establish a deadline for any other SIP revision
requirement.\13\
---------------------------------------------------------------------------
\13\ The deadline established through this final action relates
solely to specific additional requirements triggered by the
reclassification for the 8-hour ozone NAAQS and should not be
interpreted as relieving any of the four areas of any existing
obligation that an area has based on its 1-hour ozone
classification, or of existing obligations unrelated to attainment
that are based on an area's original 8-hour ozone classification.
---------------------------------------------------------------------------
In addition, consistent with our discretionary authority under CAA
sections 301(a) and 301(d)(4), and for the reasons discussed above and
in the proposed rule, we are similarly finalizing our reclassification
of all Indian country within the four areas, except Indian country
pertaining to the Morongo and Pechanga Tribes, consistent with the
reclassification requests for the surrounding non-Indian country lands.
As discussed above, EPA is deferring the reclassification of the
Morongo and Pechanga Reservations pending our final decisions on their
boundary change requests. In Table 1 below, we list tribes that have
Indian country located within the four subject areas of this final
action. Aside from the Morongo and Pechanga Reservations, we also note
that the reclassifications apply to all Indian country within any of
the four subject areas that exists at present or at any future time
while the given area continues to be designated as nonattainment.
Reclassification lowers the de minimis thresholds for the affected
tribes, as per EPA's General Conformity rule (40 CFR part 53, subpart
B), but does not lower the applicable ``major source'' thresholds
because the 25 tons per year ``major source'' thresholds for VOC and
NOX in the Coachella Valley and Sacramento Metro areas, and
the 10 tons per year thresholds for VOC and NOX in the San
Joaquin Valley and South Coast areas, already apply under the areas' 1-
hour ozone classifications.
[[Page 24416]]
Table 1--Tribes With Indian Country Located Within the Four Areas Subject to Reclassification
----------------------------------------------------------------------------------------------------------------
San Joaquin Valley South coast air basin Coachella Valley Sacramento metro
----------------------------------------------------------------------------------------------------------------
Big Sandy Rancheria of Mono Indians Cahuilla Band of Agua Caliente Band of Rumsey Indian Rancheria
(including the Big Sandy Rancheria). Indians (including the Cahuilla Indians of Wintun Indians
Cahuilla Reservation). (including the Agua (including the Rumsey
Caliente Indian Indian Rancheria).
Reservation).
Cold Springs Rancheria of Mono Ramona Band of Cahuilla Augustine Band of Shingle Springs Band of
Indians (including the Cold Springs Mission Indians Cahuilla Indians Miwok Indians
Rancheria). (including the Ramona (including the [including the Shingle
Band). Augustine Reservation). Springs Rancheria
(Verona Tract).
North Fork Rancheria of Mono Indians San Manuel Band of Cabazon Band of Mission United Auburn Indian
(including the North Fork Rancheria). Mission Indians Indians (including the Community (including
(including the San Cabazon Reservation). the Auburn Rancheria).
Manuel Reservation).
Picayune Rancheria of Chukchansi Santa Rosa Band of Santa Rosa Band of
Indians (including the Picayune Cahuilla Indians Cahuilla Indians
Rancheria). (including the South (including the
Coast Air Basin Coachella Valley
portion of the Santa portion of the Santa
Rosa Reservation). Rosa Reservation).
Santa Rosa Indian Community Soboba Band of Torres Martinez Desert
(including the Santa Rosa Rancheria). Luise[ntilde]o Indians Cahuilla Indians
(including the Soboba (including the Torres-
Reservation). Martinez Reservation)
Table Mountain Rancheria (including Reclassification Twenty-Nine Palms Band
the Table Mountain Rancheria). Deferred for: of Mission Indians
Morongo Band of Mission (including the Twenty-
Indians (including the Nine Palms Reservation-
Morongo Reservation). Riverside County
Section).
Tule River Indian Tribe (including Reclassification
the Tule River Reservation). Deferred for: Pechanga
Band of Luise[ntilde]o
Mission Indians
(including the
Pechanga Reservation).
----------------------------------------------------------------------------------------------------------------
To codify our final action reclassifying the four subject areas, we
are revising the table for 8-hour ozone in 40 CFR 81.305 accordingly.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
final action is not a ``significant regulatory action'' and therefore
is not subject to Executive Order 12866. With respect to lands under
state jurisdiction, voluntary reclassifications under CAA section
181(b)(3) of the CAA are based solely upon requests by the State, and
EPA is required under the CAA to grant them. These actions do not, in
and of themselves, impose any new requirements on any sectors of the
economy. In addition, because the statutory requirements are clearly
defined with respect to the differently classified areas, and because
those requirements are automatically triggered by reclassification,
reclassification does not impose a materially adverse impact under
Executive Order 12866. With respect to Indian country,
reclassifications do not establish deadlines for air quality plans or
plan revisions. For these reasons, this final action is also not
subject to Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001).
In addition, I certify that this final rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and that
this final rule does 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), because EPA is required to
grant requests by states for voluntary reclassifications and such
reclassifications in and of themselves do not impose any federal
intergovernmental mandate, and because tribes are not subject to
implementation plan submittal deadlines that apply to States as a
result of reclassifications.
Executive Order 13175 (65 FR 67249, November 9, 2000) requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' ``Policies that have tribal
implications'' is defined in section 1(a) of the Executive Order to
include regulations that have ``substantial direct effects on one or
more Indian tribes, on the relationship between the Federal Government
and the Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.''
Several Indian tribes have Indian country located within the
boundaries of the four subject ozone nonattainment areas. EPA
implements federal Clean Air Act programs, including reclassifications,
in these areas of Indian country consistent with our discretionary
authority under sections 301(a) and 301(d)(4) of the Clean Air Act. EPA
has concluded that this final rule might have tribal implications for
the purposes of E.O. 13175, but would not impose substantial direct
costs upon the tribes, nor would it preempt Tribal law. This final rule
does not affect implementation of new source review for new or modified
stationary sources proposed to be located in the Indian country areas
proposed for reclassification, but might affect projects proposed in
these areas that require Federal permits, approvals, or funding. Such
projects are subject to the requirements of EPA's General Conformity
rule, and Federal permits, approvals, or funding for the projects may
be more difficult to obtain because of the lower de minimis thresholds
triggered by reclassification.\14\
---------------------------------------------------------------------------
\14\ As noted in section IV (``Public Comments and EPA
Responses''), EPA is deferring the reclassification of the Morongo
and Pechanga Reservations pending our final decisions on their
boundary change requests. Thus, for the time being, the current
General Conformity de minimis thresholds (25 tons per year for VOC
or NOX) continue to apply for projects proposed in the
Morongo and Pechanga Reservations that require Federal permits,
approvals, or funding.
---------------------------------------------------------------------------
Given the potential implications, EPA contacted tribal officials
early in the process of developing this final rule to provide an
opportunity to have meaningful and timely input into its development.
On July 31, 2008, we sent letters to leaders of the 22 tribes with
Indian country areas in the four subject nonattainment areas seeking
their input
[[Page 24417]]
on how we could best communicate with the tribes on the rulemaking
effort.\15\ We received responses from nine tribes, of whom four
indicated face-to-face meetings as one of several preferred means of
communication. Prior to our proposal we had met with two tribes that
sought specific meetings on the reclassifications: Morongo Band of
Mission Indians (``Morongo Tribe'') and Pechanga Band of Luise[ntilde]o
Mission Indians (``Pechanga Tribe''). Following the end of the comment
period on our proposal, we met again with the Morongo and Pechanga
Tribes to discuss the Tribes' broader requests for separate
nonattainment areas. We also contacted the Twenty-Nine Palms Band of
Luise[ntilde]o Mission Indians, and the Santa Rosa Band of Cahuilla
Indians to clarify how the reclassification would affect each Tribe's
Indian country in Coachella Valley. EPA has carefully considered the
views expressed by the Tribes, including (as described in detail above)
the views expressed in written comments on EPA's proposed
reclassification rule.
---------------------------------------------------------------------------
\15\ In our proposed rule, we indicated that we sent letters to
the leaders of 21 tribes with Indian country areas in the four
subject nonattainment areas. On July 31, 2008 we had also sent a
letter to the leader of the Twenty-Nine Palms Band of Luise[ntilde]o
Mission Indians in relation to the Tribe's Indian country located
within the Western Mojave Desert nonattainment area, for which the
State of California has also submitted a reclassification request
but for which we have deferred action. This Tribe is affected by
this final action in relation to its Indian country in the Coachella
Valley nonattainment area.
---------------------------------------------------------------------------
This final action also does not have Federalism implications
because it does not have substantial direct effects on the States, on
the relationship between the national government and the States, nor on
the distribution of power and responsibilities among the various levels
of government, as specified in Executive Order 13132 (64 FR 43255,
August 10, 1999). This final action does not alter the relationship or
the distribution of power and responsibilities established in the CAA.
This final rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because EPA interprets E.O.
13045 as applying only to those regulatory actions that concern health
or safety risks, such that the analysis required under section 5-501 of
the E.O. has the potential to influence the regulation.
Reclassification actions do not involve technical standards and
thus, the requirements of section 12(d) of the National Technology
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) also do not
apply. In addition, this final rule does not impose an information
collection burden under the provisions of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.).
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States. This reclassification action relates
to ozone, a pollutant that is regional in nature, and is not the type
of action that could result in the types of local impacts addressed in
Executive Order 12898.
The Congressional Review Act, 5 U.S.C. section 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
section 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 6, 2010. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See CAA section 307(b)(2).)
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, Intergovernmental
relations, National parks, Ozone, Wilderness areas.
Dated: April 15, 2010.
Jared Blumenfeld,
Regional Administrator, Region IX.
0
Part 81, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 81--[AMENDED]
0
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart C--[Amended]
0
2. Section 81.305 is amended in the table for ``California--Ozone (8-
Hour Standard)'' by revising the entries for ``Los Angeles-South Coast
Air Basin, CA,'' ``Riverside Co. (Coachella Valley), CA,'' ``Sacramento
Metro, CA,'' and ``San Joaquin Valley, CA,''; by republishing footnotes
``a'', ``b'', and ``1''; by adding footnotes ``c'' and ``2''; and by
designating the footnotes in the correct order to read as follows:
Sec. 81.305 California.
California--Ozone (8-Hour Standard)
----------------------------------------------------------------------------------------------------------------
Designation \a\ Classification
Designated area -------------------------------------------------------------------------------
Date\1\ Type Date\1\ Type
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Los Angeles--South Coast Air ....... Nonattainment................ (\2\) Subpart 2/Extreme.
Basin, CA.
Los Angeles County (part)... ....... Nonattainment................ (\2\) Subpart 2/Extreme.
[[Page 24418]]
That portion of Los .............................
Angeles County which
lies south and west of
a line described as
follows: Beginning at
the Los Angeles-San
Bernardino County
boundary and running
west along the Township
line common to Township
3 North and Township 2
North, San Bernardino
Base and Meridian; then
north along the range
line common to Range 8
West and Range 9 West;
then west along the
Township line common to
Township 4 North and
Township 3 North; then
north along the range
line common to Range 12
West and Range 13 West
to the southeast corner
of Section 12, Township
5 North and Range 13
West; then west along
the south boundaries of
Sections 12, 11, 10, 9,
8, and 7, Township 5
North and Range 13 West
to the boundary of the
Angeles National Forest
which is collinear with
the range line common
to Range 13 West and
Range 14 West; then
north and west along
the Angeles National
Forest boundary to the
point of intersection
with the Township line
common to Township 7
North and Township 6
North (point is at the
northwest corner of
Section 4 in Township 6
North and Range 14
West); then west along
the Township line
common to Township 7
North and Township 6
North; then north along
the range line common
to Range 15 West and
Range 16 West to the
southeast corner of
Section 13, Township 7
North and Range 16
West; then along the
south boundaries of
Sections 13, 14, 15,
16, 17, and 18,
Township 7 North and
Range 16 West; then
north along the range
line common to Range 16
West and Range 17 West
to the north boundary
of the Angeles National
Forest (collinear with
the Township line
common to Township 8
North and Township 7
North); then west and
north along the Angeles
National Forest
boundary to the point
of intersection with
the south boundary of
the Rancho La Liebre
Land Grant; then west
and north along this
land grant boundary to
the Los Angeles-Kern
County boundary.
Orange County............... ....... Nonattainment................ (\2\) Subpart 2/Extreme.
Riverside County (part)..... ....... Nonattainment................ (\2\) Subpart 2/Extreme.
That portion of .............................
Riverside County,
except that portion of
the area defined below
that lies within the
Morongo Reservation or
the Pechanga
Reservation \c\, which
lies to the west of a
line described as
follows: Beginning at
the Riverside-San Diego
County boundary and
running north along the
range line common to
Range 4 East and Range
3 East, San Bernardino
Base and Meridian; then
east along the Township
line common to Township
8 South and Township 7
South; then north along
the range line common
to Range 5 East and
Range 4 East; then west
along the Township line
common to Township 6
South and Township 7
South to the southwest
corner of Section 34,
Township 6 South, Range
4 East; then north
along the west
boundaries of Sections
34, 27, 22, 15, 10, and
3, Township 6 South,
Range 4 East; then west
along the Township line
common to Township 5
South and Township 6
South; then north along
the range line common
to Range 4 East and
Range 3 East; then west
along the south
boundaries of Sections
13, 14, 15, 16, 17, and
18, Township 5 South,
Range 3 East; then
north along the range
line common to Range 2
East and Range 3 East;
to the Riverside-San
Bernardino County line.
Morongo Reservation \c\. ....... Nonattainment................ (\2\) Subpart 2/Severe-17.
Pechanga Reservation\ c\ ....... Nonattainment................ (\2\) Subpart 2/Severe-17.
San Bernardino County (part) ....... Nonattainment................ (\2\) Subpart 2/Extreme.
That portion of San
Bernardino County which
lies south and west of
a line described as
follows: Beginning at
the San Bernardino-
Riverside County
boundary and running
north along the range
line common to Range 3
East and Range 2 East,
San Bernardino Base and
Meridian; then west
along the Township line
common to Township 3
North and Township 2
North to the San
Bernardino-Los Angeles
County boundary.
* * * * * * *
Riverside Co. (Coachella ....... Nonattainment................ (\2\) Subpart 2/Severe-15.
Valley), CA.
Riverside County (part)..... ....... Nonattainment................ (\2\) Subpart 2/Severe-15.
[[Page 24419]]
That portion of .............................
Riverside County which
lies to the east of a
line described as
follows: Beginning at
the Riverside-San Diego
County boundary and
running north along the
range line common to
Range 4 East and Range
3 East, San Bernardino
Base and Meridian; then
east along the Township
line common to Township
8 South and Township 7
South; then north along
the range line common
to Range 5 East and
Range 4 East; then west
along the Township line
common to Township 6
South and Township 7
South to the southwest
corner of Section 34,
Township 6 South, Range
4 East; then north
along the west
boundaries of Sections
34, 27, 22, 15, 10, and
3, Township 6 South,
Range 4 East; then west
along the Township line
common to Township 5
South and Township 6
South; then north along
the range line common
to Range 4 East and
Range 3 East; then west
along the south
boundaries of Sections
13, 14, 15, 16, 17, and
18, Township 5 South,
Range 3 East; then
north along the range
line common to Range 2
East and Range 3 East;
to the Riverside-San
Bernardino County line.
And that portion of
Riverside County which
lies to the west of a
line described as
follows:
That segment of the .............................
southwestern boundary
line of Hydrologic Unit
Number 18100100 within
Riverside County,
further described as
follows: Beginning at
the Riverside-Imperial
County boundary and
running north along the
range line common to
Range 17 East and Range
16 East, San Bernardino
Base and Meridian; then
northwest along the
ridge line of the
Chuckwalla Mountains,
through Township 8
South, Range 16 East
and Township 7 South,
Range 16 East, until
the Black Butte
Mountain, elevation
4504'; then west and
northwest along the
ridge line to the
southwest corner of
Township 5 South, Range
14 East; then north
along the range line
common to Range 14 East
and Range 13 East; then
west and northwest
along the ridge line to
Monument Mountain,
elevation 4834'; then
southwest and then
northwest along the
ridge line of the
Little San Bernardino
Mountains to Quail
Mountain, elev. 5814';
then northwest along
the ridge line to the
Riverside-San
Bernardino County line.
* * * * * * *
Sacramento Metro, CA............ ....... Nonattainment................ (\2\) Subpart 2/Severe-15.
El Dorado County (part)..... ....... Nonattainment................ (\2\) Subpart 2/Severe-15.
All portions of the .............................
county, except that
portion of El Dorado
County within the
drainage area naturally
tributary to Lake Tahoe
including said Lake.
Placer County (part)........ ....... Nonattainment................ (\2\) Subpart 2/Severe-15.
All portions of the .............................
county except that
portion of Placer
County within the
drainage area naturally
tributary to Lake Tahoe
including said Lake,
plus that area in the
vicinity of the head of
the Truckee River
described as follows:
Commencing at the point
common to the
aforementioned drainage
area crestline and the
line common to
Townships 15 North and
16 North, Mount Diablo
Base and Meridian, and
following that line in
a westerly direction to
the northwest corner of
Section 3, Township 15
North, Range 16 East,
Mount Diablo Base and
Meridian, thence south
along the west line of
Sections 3 and 10,
Township 15 North,
Range 16 East, Mount
Diablo Base and
Meridian, to the
intersection with the
said drainage area
crestline, thence
following the said
drainage area boundary
in a southeasterly,
then northeasterly
direction to and along
the Lake Tahoe Dam,
thence following the
said drainage area
crestline in a
northeasterly, then
northwesterly direction
to the point of
beginning.
Sacramento County........... ....... Nonattainment................ (\2\) Subpart 2/Severe-15.
Solano County (part)........ ....... Nonattainment................ (\2\) Subpart 2/Severe-15.
[[Page 24420]]
That portion of Solano .............................
County which lies north
and east of a line
described as follows:
Beginning at the
intersection of the
westerly boundary of
Solano County and the
\1/4\ section line
running east and west
through the center of
Section 34; Township 6
North, Range 2 West,
Mount Diablo Base and
Meridian, thence east
along said \1/4\
section line to the
east boundary of
Section 36, Township 6
North, Range 2 West,
thence south \1/2\ mile
and east 2.0 miles,
more or less, along the
west and south boundary
of Los Putos Rancho to
the northwest corner of
Section 4, Township 5
North, Range 1 West,
thence east along a
line common to Township
5 North and Township 6
North to the northeast
corner of Section 3,
Township 5 North, Range
1 East, thence south
along section lines to
the southeast corner of
Section 10, Township 3
North, Range 1 East,
thence east along
section lines to the
south \1/4\ corner of
Section 8, Township 3
North, Range 2 East,
thence east to the
boundary between Solano
and Sacramento
Counties.
Sutter County (part)........ ....... Nonattainment................ (\2\) Subpart 2/Severe-15.
Portion south of a line .............................
connecting the northern
border of Yolo County
to the SW tip of Yuba
County and continuing
along the southern Yuba
County border to Placer
County.
Yolo County................. ....... Nonattainment................ (\2\) Subpart 2/Severe-15.
* * * * * * *
San Joaquin Valley, CA.......... ....... Nonattainment................ (\2\) Subpart 2/Extreme.
Fresno County............... ....... Nonattainment................ (\2\) Subpart 2/Extreme.
Kern County (part).......... ....... Nonattainment................ (\2\) Subpart 2/Extreme.
That portion of Kern .............................
County which lies west
and north of a line
described as follows:
Beginning at the Kern-
Los Angeles County
boundary and running
north and east along
the northwest boundary
of the Rancho La Libre
Land Grant to the point
of intersection with
the range line common
to R. 16 W. and R. 17
W., San Bernardino Base
and Meridian; north
along the range line to
the point of
intersection with the
Rancho El Tejon Land
Grant boundary; then
southeast, northeast,
and northwest along the
boundary of the Rancho
El Tejon Land Grant to
the northwest corner of
S. 3, T. 11 N., R. 17
W.; then west 1.2
miles; then north to
the Rancho El Tejon
Land Grant boundary;
then northwest along
the Rancho El Tejon
line to the southeast
corner of S. 34, T. 32
S., R. 30 E., Mount
Diablo Base and
Meridian; then north to
the northwest corner of
S. 35, T. 31 S., R. 30
E.; then northeast
along the boundary of
the Rancho El Tejon
Land Grant to the
southwest corner of S.
18, T. 31 S., R. 31 E.;
then east to the
southeast corner of S.
13, T. 31 S., R. 31 E.;
then north along the
range line common to R.
31 E. and R. 32 E.,
Mount Diablo Base and
Meridian, to the
northwest corner of S.
6, T. 29 S., R. 32 E.;
then east to the
southwest corner of S.
31, T. 28 S., R. 32 E.;
then north along the
range line common to R.
31 E. and R. 32 E. to
the northwest corner of
S. 6, T. 28 S., R. 32
E., then west to the
southeast corner of S.
36, T. 27 S., R. 31 E.,
then north along the
range line common to R.
31 E. and R. 32 E. to
the Kern-Tulare County
boundary.
Kings County................ ....... Nonattainment................ (\2\) Subpart 2/Extreme.
Madera County............... ....... Nonattainment................ (\2\) Subpart 2/Extreme.
Merced County............... ....... Nonattainment................ (\2\) Subpart 2/Extreme.
San Joaquin County.......... ....... Nonattainment................ (\2\) Subpart 2/Extreme.
Stanislaus County........... ....... Nonattainment................ (\2\) Subpart 2/Extreme.
Tulare County............... ....... Nonattainment................ (\2\) Subpart 2/Extreme.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\b\ The boundaries for these designated areas are based on coordinates of latitude and longitude derived from
EPA Region 9's GIS database and are illustrated in a map entitled ``Eastern San Diego County Attainment Areas
for the 8-Hour Ozone NAAQS,'' dated March 9, 2004, including an attached set of coordinates. The map and
attached set of coordinates are available at EPA's Region 9 Air Division office. The designated areas roughly
approximate the boundaries of the reservations for these tribes, but their inclusion in this table is intended
for CAA planning purposes only and is not intended to be a federal determination of the exact boundaries of
the reservations. Also, the specific listing of these tribes in this table does not confer, deny, or withdraw
Federal recognition of any of the tribes so listed nor any of the tribes not listed.
\c\ The use of reservation boundaries for this designation is for purposes of CAA planning only and is not
intended to be a federal determination of the exact boundaries of the reservations. Nor does the specific
listing of the Tribes in this table confer, deny, or withdraw Federal recognition of any of the Tribes listed
or not listed.
[[Page 24421]]
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ This date is June 4, 2010.
* * * * *
[FR Doc. 2010-9599 Filed 5-4-10; 8:45 am]
BILLING CODE 6560-50-P