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Rule

Approval of Tribal Implementation Plan and Designation of Air Quality Planning Area; Pechanga Band of Luiseño Mission Indians

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AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is taking final action to revise the boundaries of the Southern California air quality planning areas to designate the reservation of the Pechanga Band of Luiseño 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 taking final action to approve the Tribe's tribal implementation plan (“TIP”) for maintaining the 1997 8-hour 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 approval of the maintenance plan, the EPA is granting a request from the Tribe to redesignate the Pechanga Reservation 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:

This rule is effective on April 3, 2015.

ADDRESSES:

The EPA has established docket number EPA-R09-OAR-2014-0869 for this action. The index to the docket is available electronically at www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., Confidential Business Information). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

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FOR FURTHER INFORMATION CONTACT:

Ken Israels, Grants and Program Integration Office (AIR-8), U.S. Environmental Protection Agency, Region IX, (415) 947-4102, israels.ken@epa.gov.

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SUPPLEMENTARY INFORMATION:

Throughout this document, the terms “we,” “us,” and “our” refer to the EPA.

Table of Contents

I. Summary of Proposed Action

II. Comments and Responses

III. Final Action

IV. Statutory and Executive Order Reviews

I. Summary of Proposed Action

On January 6, 2015 (80 FR 436), under section 107(d)(3) of the Clean Air Act (CAA or “Act”), the EPA proposed to revise the boundaries of the South Coast [1] and San Diego County air quality planning areas for the 1997 8-hour ozone [2] national ambient air quality standard (NAAQS or “standard”) to designate the Pechanga Reservation [3] as a separate nonattainment area for the 1997 8-hour ozone standard.[4] We proposed 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.[5] Once this action is effective, the Pechanga air quality planning area for the 1997 8-hour ozone standard will have the same boundaries as the Pechanga nonattainment area for the 2008 ozone standard and the 2012 annual PM2.5 standard.[6]

Under CAA section 110(k), the EPA also proposed to approve the Pechanga Ozone Maintenance Plan, submitted by the Tribe on November 4, 2014, as the Tribe's TIP for maintaining the 1997 8-hour 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 approval of the Pechanga Ozone Maintenance Plan, the EPA proposed to grant a request from the Tribe to redesignate the newly-established Pechanga Reservation ozone air quality planning area to attainment for the 1997 8-hour ozone standard because the request meets the statutory requirements for redesignation under the Clean Air Act. References herein to our “proposed rule” refer to the proposed rule published on January 6, 2015 at 80 FR 436 through 449.

Generally, maintenance plans establish motor vehicle emissions budgets for the last year of the maintenance plan, at a minimum (40 CFR 93.118(b)(2)(i)). However, the Pechanga Tribe did not include motor vehicle emissions budgets for the last year of this maintenance plan because, at the time the maintenance plan was developed, the EPA had revoked the 1997 8-hour ozone standard for transportation conformity purposes, effective July 20, 2013. See 77 FR 30160 (May 21, 2012). However, on December 23, 2014, the DC Circuit held that the EPA lacked authority for such a partial revocation of the 1997 8-hour ozone standard and effectively reinstituted transportation conformity requirements for areas designated nonattainment for the 1997 8-hour ozone standard or redesignated to attainment with an approved CAA section 175A maintenance plan. The Court did not question the EPA's authority to revoke a standard in total. See Natural Resources Defense Council v. EPA (D.C. Cir. No. 12-1321, December 23, 2014). Since the Court's decision, the EPA has Start Printed Page 18121published a final rule that, among other things, revokes the 1997 ozone NAAQS for all purposes, including transportation conformity, effective April 6, 2015. See 80 FR 12264 (March 6, 2015). After that date, transportation conformity will no longer be required for the 1997 8-hour ozone standard. The Pechanga Reservation air quality planning area will remain designated nonattainment for the 2008 ozone standard, and transportation conformity continues to apply for that NAAQS.[7]

As we explained in our proposed rule, upon the effective date of our action, certain CAA 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 no longer apply, nor do the requirements that had applied to the reservation by virtue of its designation as “Severe-17” for the 1997 8-hour ozone standard. The requirements that no longer apply include, among others, the nonattainment New Source Review (“NNSR”) major source threshold of 10 tons per year (tpy) for ozone precursor emissions in “Extreme” ozone nonattainment areas. New or modified stationary sources proposed at the Pechanga Reservation 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 for VOC or NOX.

In our proposed rule, we also explained that, in concluding that it is appropriate to propose approval of the Tribe's request for boundary changes and designation to attainment for the 1997 8-hour ozone standard, the EPA relies heavily on the fact that this is a request from a federally-recognized tribal government. The Pechanga Tribe has been determined previously to qualify for treatment in the same manner as a state (also referred to as “TAS”) for purposes of CAA section 107(d) and sections 110 and 175A and the submitted maintenance plan, and the lands under consideration here are subject to the EPA's Tribal Designation Policy. The EPA finds that the Tribe's request for a separate area is consistent with the principles set forth in that policy.

The EPA also explained in the proposed rule that our proposed action relies on the facts that there are valid monitoring data showing that current air quality at the Pechanga Reservation meets the 1997 8-hour ozone standard and that the emissions from sources on the Pechanga Reservation are minimal and do not contribute in any meaningful way to ambient concentrations in any nearby ozone nonattainment area. Finally, we noted that the action to establish a separate air quality planning area would simplify implementation of the ozone standards by eliminating the division of the reservation into two different planning areas for the same criteria pollutant standard, the 1997 8-hour ozone standard. This separate treatment of the Pechanga Reservation is consistent with the EPA's prior final actions to reclassify the South Coast ozone nonattainment area in 2010, to establish a separate air quality planning area for the 2008 ozone standard in 2012, and to establish a separate air quality planning area for the 2012 annual PM2.5 standard in 2015. In summary, we noted in our proposed rule that the proposed changes in the boundaries and the status of this area are supported by several unique factors that are unlikely to be present in other nonattainment areas.

Please see our proposed rule and related technical support document (TSD) for additional background information about the Pechanga Reservation, the regulatory context, the Tribe's request for a boundary change, and the Tribe's redesignation request, as well as a more detailed explanation of our rationale for the proposed actions.

II. Comments and Responses

Our proposed rule provided for a 30-day comment period. During this period, we received comments from the South Coast Air Quality Management District (SCAQMD or “District”).[8] We have summarized the comments, and provide responses in the paragraphs that follow.

SCAQMD Comment #1: The SCAQMD states that it knows of no precedent for the EPA to determine the attainment status for an entire separate nonattainment area based on monitors located outside that area, at least where the data are being used to support redesignation from nonattainment to attainment. In addition to the lack of precedent, the SCAQMD also cites statements by the EPA to the effect that monitoring requirements apply “in the area;” the EPA's definition of “design value,” which refers to the highest site “in any attainment area or nonattainment area;” and the decision by the EPA not to designate the Pechanga Reservation as a separate “attainment” area for the 2008 ozone standard based on the lack of a regulatory monitor at the reservation, as support for the SCAQMD's conclusion that EPA's regulations do not authorize monitoring data collected outside a given nonattainment area to be used as the basis for determining whether a nonattainment area is attaining the NAAQS for the purposes of redesignation. Lastly, the SCAQMD contends that the EPA must justify its approach and must demonstrate why it will not lead to further attempts by areas within the South Coast to establish separate ozone planning areas to obtain the benefits of a lower ozone classification or a redesignation to attainment.

Response to SCAQMD Comment #1: As described at pages 442 and 443 of our proposed rule, we proposed a finding of attainment based on (1) ozone data collected at a monitor (the “Temecula” monitor) located approximately 10 miles north of the Pechanga Reservation and (2) a comparison of Temecula data with available data from the Pechanga ozone monitor. The Temecula data establishes an ozone design value below the 1997 8-hour ozone standard, and the Pechanga data, which includes two complete years (2012 and 2013) of regulatory data, provides the basis for comparison with corresponding Temecula data and thereby establishes representativeness.

Thus, we are not relying solely on the out-of-area data in that we determined that the Temecula data was representative of ozone conditions on the Pechanga Reservation based in part on quality-assured and certified ambient ozone data collected at the regulatory monitor operated on the Pechanga Reservation. Data collected from the Pechanga monitor includes two complete years (2012 and 2013) with which to compare data from the Temecula data, and as shown in table 1 of our proposed rule (80 FR at 443), the fourth highest 8-hour ozone concentrations track very closely at the two sites during those two years, which is expected considering that ozone pollution is regional in nature, the two monitors are only 10 miles apart, and no significant topographic barriers lie between the two monitoring sites.Start Printed Page 18122

Also, since publication of the proposed rule, additional preliminary data for year 2014 has become available from both the Temecula and Pechanga monitors. Table 1 below presents the data for 2012 and 2013 previously presented in the proposed rule and adds preliminary data for 2014. While available preliminary 2014 data suggests that higher ozone concentrations were measured at the Pechanga monitor than at the Temecula monitor, the comparison of data between the two sites for 2014 is constrained by the fact that available preliminary 2014 data for Temecula only runs through the end of September 2014 and that data from August 29th-September 17th, which is during the peak ozone season, is missing because of a data logger problem, whereas the 2014 data from the Pechanga monitor reflects all four quarters. Despite its limitations, the available preliminary data for 2014 continues to be consistent with our proposed determination of attainment (which is based on complete, quality-assured, and certified data from the Temecula monitor for years 2011-2013) and is, at the very least, not inconsistent with our determination that the Temecula data are representative of ozone conditions at the Pechanga Reservation. Please see the docket of this final action for an updated analysis that further demonstrates the representativeness of the Temecula data for the purposes of this action.[9]

Table 1—Fourth Highest 8-Hour Ozone Concentrations at Temecula and Pechanga Monitors, 2012-2014, ppm

Monitor (site code)201220132014 a2012-2014 design value ab
Temecula (06-065-0016)0.0770.0740.0740.075
Pechanga (06-065-0009)0.0750.0740.0790.076
a All data for year 2014 are preliminary. The 2014 data shown for the Temecula monitor reflects preliminary data from AQS for the first three quarters of 2014. The 2014 data for the Pechanga monitor reflect preliminary data for all four quarters.
b The 1997 8-hour ozone standard is attained where the design value is less than or equal to 0.08 ppm. See 40 CFR part 50, appendix I. Given the rounding conventions, however, attainment is achieved where design values are 0.084 ppm or less. See 40 CFR part 50, appendix I, section 2.3. The preliminary design values in this table are well below the relevant ozone NAAQS.
Source: AQS Data Summary Report, dated May 16, 2014; AQS Data Summary Report, dated February 25, 2015.

Our decision to rely on the Temecula data to determine that the Pechanga Reservation has attained the 1997 8-hour ozone standard is not inconsistent with the EPA's decision not to grant Pechanga's request for designation as a separate attainment area for the 2008 ozone standard. The SCAQMD is correct that, in our final rule designating areas for the 2008 ozone standard (77 FR 30088, May 21, 2012), we decided not to designate the Pechanga Reservation as a separate attainment area on the grounds that the Pechanga Tribe did not operate a regulatory monitor that showed that the area in fact was attaining the 2008 ozone standard.[10] Instead, we designated the Pechanga Reservation as a separate nonattainment area for the 2008 ozone standard, and we did so based on ozone data from a proximate, state regulatory monitor (at Lake Elsinore). At the time of the designation for the 2008 ozone standard, the SCAQMD's Temecula monitor, which began monitoring ozone in Fall of 2010, only had one year of complete ozone data, and the SCAQMD's Lake Elsinore monitoring site was the nearest proximate regulatory ozone monitor with complete data.

The EPA has considered the Pechanga monitor as a regulatory monitor since May 2010, but we invalidated the regulatory data collected prior to the correction of an equipment problem discovered in 2011 (and discussed below in Response to SCAQMD Comment #2), and thus the data from the Pechanga monitor were unavailable for use for the purposes of designating areas for the 2008 ozone standard. Regulatory monitors are those for which the monitoring objective is comparison with the NAAQS and that have adequately achieved the quality assurance and data requirements for regulatory decision making. As noted in our proposed rule (at 80 FR at 477), the Pechanga Tribe has committed in its maintenance plan to continue operating an ambient ozone monitor at the reservation, quality assuring the resulting monitoring data, and entering all data in AQS in accordance with federal requirements and guidelines to verify continued attainment of the 1997 8-hour ozone standard.

Lastly, as to the potential for other areas within the South Coast to rely on out-of-area monitoring data to establish separate ozone planning areas to obtain the benefits of a lower ozone classification or a redesignation to attainment, we note that each request for a boundary change or a change in designation from “nonattainment” to “attainment” is evaluated on a case-by-case basis to determine whether all applicable CAA requirements are met, and different criteria apply depending upon the type of request. For boundary change requests, the EPA takes into account a number of factors, including air quality data, emissions sources, geographical and meteorological considerations, and jurisdiction, among others, when evaluating such requests. It is not necessarily the case that the same set of factors supporting our action on Pechanga Tribe's request for a separate area for the 1997 8-hour ozone standard would be relevant to (or would support) any other tribe's request for such a change. Requests for redesignation from “nonattainment” to “attainment” from states or tribes are evaluated based on the criteria set forth in CAA section 107(d)(3)(E).

SCAQMD Comment #2: The SCAQMD suggests that the ambient values of monitoring data from the Pechanga monitor are increasing over time while the monitoring data from the SCAQMD Temecula monitor are decreasing. Based on that assertion, the SCAQMD does not believe that the SCAQMD Temecula monitoring data are representative of air quality on the Pechanga Reservation and asserts that, based on their conclusion that an upward trend in concentrations is occurring at the reservation, the Start Printed Page 18123maintenance plan does not demonstrate that it will maintain levels below the standard for the next ten years. The SCAQMD requests that the EPA provide a reasoned explanation demonstrating that this observed increasing trend at the Pechanga Reservation is not real, and that Pechanga ozone levels are actually decreasing as would be expected if Temecula data were representative.

Response to SCAQMD Comment #2: The Pechanga Tribe began operation of an ozone monitor in mid-2008. In 2011, the EPA discovered an equipment problem at the Pechanga monitor that had the effect of diluting ambient ozone concentrations recorded by the monitor. The problem was corrected by the Tribe later in 2011, and the EPA considers the data collected since the problem was corrected to be valid for regulatory purposes. Conversely, the EPA considers the data collected prior to correction of the equipment problem to be invalid for NAAQS comparison purposes. The basis for invalidating the data are a comparison of ozone concentrations measured at other ozone monitors in the region that shows artificially low ozone readings at the Pechanga monitoring site throughout all of 2009, and all of 2010, suggesting that the equipment problem affected data values throughout those periods.[11] Since the problem was corrected, in contrast to the earlier-collected data, the ozone data from the Pechanga monitor track well with other monitors in the region, particularly the Temecula monitor.

Given that the data collected at the Pechanga monitor from 2008 through 2011 (i.e., until equipment correction in late 2011) are invalid, we disagree with the SCAQMD's contention that the data shows that ozone concentrations have trended upward at the Pechanga Reservation but have trended downward at the Temecula site. While the preliminary data for 2014 collected at the Pechanga and Temecula sites are useful in showing that both monitors remain well below the 1997 8-hour ozone standard, we do not believe that a conclusion can be drawn regarding potential differences in ozone concentration trends at the two sites. First, the preliminary 2014 Temecula data has the potential to be artificially low due to missing data during the peak ozone season (see Response to SCAQMD Comment #1). Second, because we only have two complete years of data (2012 and 2013) and one year of preliminary data (2014) from the Pechanga monitor, we do not believe that we have sufficient data to establish a long-term trend of ozone concentrations at the Pechanga Reservation. However, we need only three years of data for an attainment determination, and we have three years of complete, quality-assured and certified data showing that the ozone concentrations at the Temecula site meet the 1997 8-hour ozone standard. Also, taking into account preliminary 2014 data, we now have three years of ambient ozone concentration data from the Pechanga monitor that show a preliminary design value for 2012-2014 of 0.076 ppm, i.e., well below the 1997 8-hour ozone standard (0.084 ppm or less). Moreover, as cited in our proposed rule (on page 440), with respect to our determination of representativeness, we are not relying solely on the limited ozone data from the two monitors but are also relying on modeling data published by the SCAQMD.[12]

As to future ozone concentrations, the Pechanga Ozone Maintenance Plan's demonstration of maintenance through 2025 is not based on an evaluation of ambient ozone trends but rather on an evaluation of emissions inventory data for the South Coast that shows a downward trend in ozone precursor emissions (VOC and NOX) through the maintenance period. See table 2 of our proposed rule at 80 FR 447. Generally, maintenance plans can demonstrate maintenance of the standard by either showing that future emissions of a pollutant or its precursors will not exceed the level of the attainment inventory, or by modeling to show that the future mix of sources and emission rates will not cause a violation of the standard.[13] In the proposed rule, we agree that the downward trend in regional emissions of ozone precursors is sufficient to demonstrate maintenance of the 1997 8-hour ozone standard through 2025. We also note, however, that modeling results published by the SCAQMD is consistent with our approval of the maintenance demonstration in the Pechanga Ozone Maintenance Plan.[14]

SCAQMD Comment #3: The SCAQMD contends that the maintenance plan fails to include sufficient control measures to prevent adverse effects from emissions growth on the reservation. Specifically, SCAQMD seeks confirmation that the EPA's minor NSR Federal Implementation Plan (FIP) for Indian country applies on the Pechanga Reservation, but notes that, even if it does apply, the EPA may not have adequate resources to properly implement such a program. Further, the SCAQMD is concerned that new or modified stationary sources will not necessarily be subject to the same requirements (such as those related to control technology and offsets) under the EPA's Indian country minor NSR rule as would apply if the sources were proposed in areas subject to the SCAQMD's jurisdiction. The SCAQMD contends that different requirements for new or modified stationary sources, particularly the increase in the applicable NNSR major source threshold from 10 tpy to 100 tpy for VOC and NOX due to this action, will create a significant competitive advantage and attract development beyond that anticipated in the maintenance plan. Further, the SCAQMD further contends that such unanticipated growth could result in higher-than-expected emissions with the potential to adversely affect ozone air quality downwind of the reservation.

Response to SCAQMD Comment #3: We do not agree with the SCAQMD's assertions. First, in our proposed rule, we indicate that EPA's regulations governing review and permitting of new or modified stationary sources in Indian country [15] (i.e., “New Source Review” or NSR) apply to the Pechanga Reservation. See 80 FR at 443 and 444. These regulations include the EPA's Indian country minor NSR program, codified at 40 CFR 49.151 through 49.161, and the Indian country major NSR program for nonattainment areas (referred to as “nonattainment NSR” or “NNSR”), codified at 40 CFR 49.166 through 49.173. The EPA's regulations for the prevention of significant deterioration (PSD), codified at 40 CFR 52.21, also apply to any new major source or major modification proposed at the Pechanga Reservation except for Start Printed Page 18124the emissions from such source or modification that are covered by NNSR.

Second, as to whether the EPA has adequate resources to properly implement the Indian country minor source program, we note that, historically, the EPA has administered the PSD program under 40 CFR 52.21 in many parts of California but that, in recent years, the EPA has successfully transferred its PSD permitting responsibilities to the relevant California air districts. We have done so by working with the air districts and the California Air Resources Board (CARB) to develop, adopt and submit permitting rules that meet the PSD SIP requirements. Once approved, the responsibility for PSD permitting vests in the air districts, and while the EPA continues to have a role in district PSD permit reviews, the resource demands are far fewer than where the EPA must administer the entire PSD program in a given district. Moreover, EPA permitting resources that had been used to draft PSD permits in these districts can then be reassigned to other tasks, including those related to the Indian country minor NSR program. Since 2012, the EPA has approved the PSD SIPs for the following California air districts: San Joaquin Valley Unified Air Pollution Control District (APCD) (77 FR 65305, October 26, 2012); and Eastern Kern APCD, Imperial County APCD, Placer County APCD, and Yolo-Solano Air Quality Management District (77 FR 73316, December 10, 2012).

In addition, as the SCAQMD notes in its comments, the EPA can lighten its load by implementing “general permits,” and as the SCAQMD also notes, the EPA has proposed, but not yet finalized, such permits for the Indian country minor NSR program. Our proposed general permits cover 11 broad source categories that we expect to be most relevant in the context of Indian country minor NSR. See 79 FR 2546 (January 14, 2014) and 79 FR 41846 (July 17, 2014). We expect to finalize the first set of general permits (i.e., those proposed in January 2014) in the near term, and such permits will streamline the permitting process for the EPA in connection with administration of the Indian country minor NSR program.

Third, the EPA notes that, with or without this action, new or modified sources on the Pechanga Reservation are already subject to the requirements of the EPA's Indian country NSR rules, as cited above. Our action today does not change this fact or change the stringency of EPA's Indian country NSR rules. We recognize that, in some respects, EPA's Indian country NSR rules are less stringent than the corresponding requirements under the SCAQMD's NSR rules that apply outside Indian country in the South Coast. For example, under the SCAQMD's NSR rules, certain new or modified minor sources are subject to offset requirements whereas no such requirements apply under the EPA's Indian country minor NSR rule. However, with respect to control technology requirements, while the Indian country NSR rules do not specifically require new or modified minor sources to meet best available control technology (BACT) or lowest achievable emission rate (LAER) level of control per se, the rules do require the EPA (or the Indian Tribe in cases where a Tribal agency is assisting the EPA with administration of the program through a delegation) to conduct a case-by-case control technology review to determine the appropriate level of control, if any, necessary to assure that the NAAQS are achieved, as well as the corresponding emission limitations for the affected emission units at the new or modified source. See 40 CFR 49.154(c). In carrying out this determination, among other considerations, the EPA takes into account typical control technology or other emission reduction measures used by similar sources in surrounding areas. See 40 CFR 49.154(c)(1)(ii). Thus, the corresponding control technology requirements (i.e., minor source “BACT”) that the SCAQMD applies to minor sources subject to its authority would inform the EPA's determination regarding control technology requirements and associated emission limitations for new or modified minor stationary sources on the Pechanga Reservation.

Nonetheless, we recognize that our actions today will result in an increase in the applicable major source NSR threshold from 10 tpy to 100 tpy for ozone precursor emissions, which means that new or modified sources on the Pechanga Reservation with potential to emit (“PTE”) between 10 and 100 tpy of VOC or NOX will no longer be subject to the LAER and emissions offset requirements that otherwise would have applied under the EPA's Indian country major source NNSR rule but instead will be subject to the control technology review described above for new or modified minor sources under the EPA's Indian country minor NSR rule. However, applicable air pollution regulations and requirements are but one of many factors that influence business development decisions and we do not have information that supports a conclusion that the Pechanga Reservation will attract new development at such a rate as to result in emissions growth beyond that anticipated in the Pechanga Ozone Maintenance Plan.

Fourth, the Pechanga Ozone Maintenance Plan projects that current stationary source emissions at the Pechanga Reservation will increase 33 percent for NOX over the same period.[16] The basic assumption used to develop these projections is that, over the next ten years, the Pechanga Resort and Casino would experience steady growth that would lead to increased NOX emissions by sources such as the existing boilers due to greater usage rates. We believe that the plan's assumption that, over the next ten years, changes in emissions at the reservation will stem from expansion of the existing resort and casino, rather than from development of new types of commercial or industrial businesses, is reasonable.

The SCAQMD is correct in noting that the Pechanga Ozone Maintenance Plan's projection in emissions associated with the Pechanga Reservation do not account for emissions growth from significant new stationary sources; however, there is no evidence of any specific new stationary sources that are proposed at the reservation, and as noted above, air pollution control considerations are simply one of many considerations that businesses take into account when deciding to develop at a given site. Without such evidence, the EPA declines to speculate on the types or number of new stationary sources that might locate at the reservation over the next ten years (or their associated emissions and downwind impacts) on account of the change in air pollution control requirements (i.e., higher major source threshold for NNSR). Furthermore, any new stationary sources would be subject to the EPA's review under the Indian country minor NSR rules,[17] the Indian country NNSR rules, or the PSD regulation. All three programs provide for control technology review and air quality impacts analysis, and thus, we can reasonably rely on such review to ensure that emission Start Printed Page 18125growth from new or modified stationary sources at the Pechanga Reservation is controlled to the extent necessary to protect air quality at the reservation and at locations downwind of the reservation. Concerning the SCAQMD's concern that new construction on the Pechanga Reservation could cause attainment problems in other areas, the EPA's and the Tribe's responsibilities to other areas could be addressed under CAA sections 110(a)(2)(D)(i)(I) and 126.

SCAQMD Comment #4: The SCAQMD challenges the EPA's reliance on upwind, out-of-area controls that do not apply on the Pechanga Reservation as constituting acceptable “other permanent and enforceable measures” that provide permanent and enforceable reductions and related improvement in air quality as required for redesignation under CAA section 107(d)(3)(E)(iii). The SCAQMD contends that, while some reliance on out-of-area controls may be appropriate, the EPA's near-total reliance on such controls is not reasonable. The SCAQMD believes that local areas must also do their part to improve air quality and reach attainment of the standard.

Response to SCAQMD Comment #4: CAA section 107(d)(3)(E)(iii) is one of five statutory criteria that the EPA must use to evaluate requests for redesignation of an area from nonattainment to attainment. It precludes such redesignation 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 reductions. (In this context, “applicable implementation plan” refers to the TIP.) As such, the criterion calls for the identification of the measures that provided the emissions reductions that resulted in corresponding reductions in ambient concentrations such that, where the standard was once violated, the standard is now attained. The evaluation under section 107(d)(3)(E)(iii) also involves a determination that the improvement in air quality is not due to temporary reductions in emission rates due to temporary adverse economic conditions or unusually favorable meteorology.[18]

The purpose of the criterion is to ensure the permanence and enforceability of reductions that have provided for improved air quality and attainment of the standard. The statute does not qualify the phrase “other permanent and enforceable reductions” with a reference to those reductions that are in effect in the area, and thus, it does not matter whether the measures responsible for attainment are in effect in the area for which a redesignation request is being evaluated but only that they are permanent and enforceable.[19] For instance, it is common knowledge that states in the Eastern United States rely in part on emissions reductions from measures adopted by upwind states in attaining the standard. The degree of reliance differs among the states, of course, but those measures adopted in the upwind states qualify as “other permanent and enforceable reductions” for the purposes of CAA section 107(d)(3)(E)(iii). Given the language of this particular phrase of section 107, reliance on the legislative history for interpretative purposes is not necessary, but the EPA, in response to this comment, did review the relevant legislative history and found no indication of any special meaning or limitation to the phrase “other permanent or enforceable reductions” for the purposes of redesignation.[20] Absent clear legislative history to the contrary, the EPA's interpretation of the statute is reasonable.

In this instance, we found 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 that control emissions from on-road and nonroad vehicles, and “other permanent and enforceable reductions” from upwind sources resulting from CARB and SCAQMD regulations. See our proposed rule at page 446. All of the relevant CARB and SCAQMD regulations are either subject to a waiver or authorization under CAA section 209 or are approved by the EPA into the California SIP, and thus are permanent and enforceable for the purposes of CAA section 107(d)(3)(E)(iii).

As to the SCAQMD's contention that, while some reliance on upwind out-of-area reductions may be appropriate, local areas must do their part, we note that, with respect to section 107(d)(3)(E)(iii), the statute simply requires the EPA to conclude that the measures that caused the improvement in air quality are permanent and enforceable. In this case, the identified measures on which we rely are permanent and enforceable, and they resulted in, and will continue to result in, reduced ozone concentrations on the Pechanga Reservation. The SCAQMD does not identify any specific measure that it believes should have been imposed within the reservation. Instead, the SCAQMD simply asserts that it is unreasonable for the EPA to find that section 107(d)(3)(iii) is satisfied in a given area without significant local controls in that area.

SCAQMD Comment #5: The SCAQMD states that the EPA must ensure that the Pechanga Ozone Maintenance Plan does not underestimate existing and future emissions at the reservation. The SCAQMD suggests that the maintenance plan may be underestimating such emissions because the on-road mobile emissions estimates were scaled to South Coast projections based on relative population (i.e., the population of the Pechanga Reservation relative to the overall population within the South Coast) whereas the Pechanga Resort and Casino generates a significant number of vehicle trips that are unrelated to the population of the reservation.[21]

Response to SCAQMD Comment #5: The SCAQMD is correct that the emissions inventory for the Pechanga Reservation in the Pechanga Ozone Maintenance Plan is based on a population of approximately 500 (the actual number used for the estimates is 467) and that on-road mobile emissions were scaled based on relative population. First, with respect to population, the population of Pechanga Reservation (467 full-time residents) used in the Pechanga Ozone Maintenance Plan to scale regional emissions is correct. The higher value (800 residents) cited in the proposed rule at page 437 is incorrect.

Second, we agree that use of scaling of regional emissions based on population may underestimate on-road mobile emissions at the Pechanga Reservation given the significant number of non-resident motor vehicle trips generated by the Pechanga Resort and Casino. Therefore, for this final rule, we re-calculated vehicle emissions Start Printed Page 18126using EMFAC2011 emissions factors for year 2012 based on the following assumptions: 17,100 average daily vehicle trips associated with non-residents and 1,870 daily vehicle trips associated with residents; [22] 0.5 miles per trip on the reservation for non-resident trips and 2.0 miles per trip on the reservation for trips by reservation residents; and a non-resident vehicle mix based on data from another Indian casino and resort. Resident trips were assumed to be light-duty autos and trucks.

For year 2025, we conservatively increased non-resident vehicle trips by 33% and estimated the corresponding emissions using year 2025 emissions factors from EMFAC2011. Interim year (2015 and 2020) emissions were estimated by interpolating the number of trips between 2012 and 2025 and using the applicable year's EMFAC2011 emissions rates. We present the revised emissions estimates in table 2 below, which presents the same emissions inventory information as table 2 from the proposed rule except for the revised estimates for the Pechanga Reservation.[23]

Table 2—Ozone Precursor Emissions Estimates for Pechanga Reservation and South Coast, 2012, 2015, 2020 and 2025

[Summer-day average, tons per day]

Ozone precursor2012201520202025
Pechanga Reservation (Based on data as shown in Maintenance Plan except for on-road emissions, which are calculated by the EPA):
VOC0.1510.1230.0940.081
NOX0.0880.0820.0720.065
South Coast (Based on CARB data as shown in Maintenance Plan rounded to the nearest 10 tons):
VOC500460420410
NOX490430340280
South Coast (Based on 2012 South Coast AQMP data rounded to the nearest 10 tons):
VOC540480450440
NOX560470370310

Based on the revised calculations for on-road emissions at the Pechanga Reservation, emissions at the Pechanga Reservation are estimated to be several times higher than presented in the Pechanga Ozone Maintenance Plan and in the proposed rule but are predicted to decrease through the maintenance period due to significant reductions in vehicular emissions resulting from continued implementation of state and federal motor vehicle control programs. Moreover, our conclusion from the proposed rule that the emissions associated with the Pechanga Reservation are minimal in relation to regional ozone precursor emissions remains unchanged given that, even as revised, Pechanga Reservation emissions represent 0.03% or less of regional emissions of VOC and NOX for all of the years that were analyzed.

SCAQMD Comment #6: The SCAQMD states that the EPA fails to explain its legal theory that would allow the Tribe to fail to identify specific contingency measures in its maintenance plan.

Response to SCAQMD Comment #6: CAA section 175A(d) requires that maintenance plans contain such contingency provisions as the EPA deems necessary to assure that the State will promptly correct any violation of the standard which occurs after the redesignation of the area as an attainment area. Such provisions shall 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. In this context, the reference to “State” and “SIP” in CAA section 175A corresponds to “Tribe” and “TIP.”

Generally, the EPA believes that, to meet the requirements of CAA section 175A(d), contingency provisions of maintenance plans should identify the measures to be adopted, a schedule and procedure for adoption and implementation, and a specific time limit for action by the State.[24] However, the CAA does not require that specific contingency measures be identified other than those measures that were part of the control strategy that a State or Tribe relied on to attain the standard but is not relying on for maintenance of the standard and is no longer retaining as an active measure in the SIP or TIP. No such measures exist for the Pechanga Reservation.

Notwithstanding the absence of a statutory requirement for specific contingency measures, as noted above, the EPA generally deems it necessary for contingency provisions of maintenance plans to identify specific measures to assure that the State or Tribe will promptly correct any violation of the standard which occurs after the redesignation of the area as an attainment area. Relevant considerations for the EPA in this regard include the probability of a future violation of the standard (based on how close the area is to violating the standard, emissions or ambient concentration trends, and the variability of ambient concentrations from year to year) and the reasonable foreseeability of specific sources or source categories as likely to be responsible for future violations if they occur.

In this instance, the ambient concentrations (0.077 ppm based on 2011-2013 data collected at the Temecula monitor) are below the applicable NAAQS (0.08 ppm), and the emissions trends in the South Coast show steep declines of both VOC and NOX between 2012 and 2025 (see table 2 of the proposed rule), and thus there is a relatively low probably of a future Start Printed Page 18127violation of the 1997 8-hour ozone standard at the Pechanga Reservation. Moreover, any future violation of the 1997 8-hour ozone standard at the Pechanga Reservation is unlikely to be caused by sources at the reservation given the predominant influence of upwind transport of ozone from upwind metropolitan areas in the South Coast. Therefore, the contingency provisions of the Pechanga Ozone Maintenance Plan include annual review of the ozone data and, in the event of a monitored violation, a commitment to work with the EPA to identify, adopt, and implement any additional necessary and appropriate measure(s) needed to promptly correct the violation.[25] Under the particular circumstances described above, the EPA has found that the contingency provisions of the Pechanga Ozone Maintenance Plan meet the requirements of section 175A(d), even though the Pechanga Ozone Maintenance Plan identifies no specific contingency measures for adoption by the Tribe or the EPA.

SCAQMD Comment #7: The SCAQMD asserts that the EPA's proposal to create a separate attainment area for the Pechanga Reservation for the 1997 8-hour ozone standard is inconsistent with the EPA's Tribal Designations Policy. More specifically, the SCAQMD states that the EPA must explain why it fails to take into account the fact that the Pechanga Reservation is not separate from the adjacent South Coast or San Diego areas by topographic or other geographic features whereas the policy cites the presence of topographic or other geographic barriers as a factor to consider where a Tribe submits a request for a separate attainment area adjacent to a nonattainment area.

The SCAQMD notes the EPA's decision to give “particular weight” to the “jurisdictional boundaries” factor in its tribal designation policy but asserts that the EPA fails to explain what that means, and to the extent that the EPA is referring to the fact that a small part of the Pechanga Reservation is located in San Diego County, this factor should not be determinative because two of the considerations cited by the EPA in evaluating the “jurisdictional boundaries” factor are not well-grounded. First, the SCAQMD states that the Tribe acquired lands in San Diego County only recently and that historically the entire reservation has been included in the South Coast. Second, the SCAQMD acknowledges that the Tribe operates its own monitor but suggests that the statement of the Tribe's interest in developing its own permitting program is not genuine because the redesignation request is devoid of any plans by the Tribe to establish an air permitting program or any other regulation. The SCAQMD further suggests that the proposed action essentially amounts to a determination that, given the particular weight for the jurisdictional boundaries factor, the EPA will grant a request for a separate area for any tribe that operates a monitor, even if it does not meet federal requirements.

Response to SCAQMD Comment #7: We do not agree. First, the EPA has proposed action on two separate requests: (1) the Tribe's June 23, 2009 boundary change request to establish a separate ozone nonattainment area; and (2) the Tribe's May 9, 2014 request to redesignate the Pechanga Reservation from nonattainment to attainment for the 1997 8-hour ozone standard. The second request of course presumes an affirmative response by the EPA to the first request. The EPA has chosen to take action on both requests in the same document, but different considerations and criteria apply to the different actions. For instance, some considerations that are germane to the evaluation of the Tribe's 2009 boundary change request are not germane to the evaluation of the Tribe's 2014 request for redesignation. Thus, it follows that some information from the 2009 request would not be repeated in the 2014 redesignation request. For example, the existence of a tribal permitting program is not a requirement for redesignation, but the tribe's interest in developing such a program prospectively is a consideration for the boundary change.

Second, the EPA believes that a request from a tribe for a separate nonattainment or attainment area should be supported by data from a tribe's own regulatory monitor or, at the very least, by data from a proximate regulatory monitor that is representative of air quality in the tribe's Indian country area. In this case, the Pechanga operates its own regulatory monitor, and in addition, there is a proximate representative monitor operated by the SCAQMD at the Temecula monitoring site. The EPA did not rely on the Tribe's ozone data for this action because the data was not complete over the 2011-2013 period, not because the monitor was non-regulatory.

Third, the SCAQMD is correct in noting that the EPA, in evaluating the “geography/topography” factor as part of our evaluation of the Tribe's boundary change request, concluded that there are no significant topographic barriers to air flow in the area. However, our Tribal Designations Policy calls for a multi-factor evaluation of requests for designation of separate tribal air quality planning areas or requests for a boundary change to establish such areas. The “geography/topography” factor is but one of the various factors we take into account. In this instance, we concluded that, considering the three factors of air quality data, meteorology, and topography, the 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, or alternatively, the EPA could establish a separate nonattainment area for the Pechanga Reservation as it did for the 2008 ozone standard, and more recently, for the 2012 annual PM2.5 standard. See page 441 of our proposed rule.

Further, taking into account the minimal emissions associated with activities on the Pechanga Reservation and the corresponding minimal contribution from Pechanga-related emissions sources to regional ozone levels, we concluded that it was appropriate, and consistent with the principles of the Tribal Designations Policy, to give particular weight to the jurisdictional boundaries factor. Under this factor, we consider what the existing jurisdictional boundaries are for the purposes of providing a clearly defined legal boundary of the area pertaining to the designation or boundary change request and carrying out air quality planning and enforcement functions. When the Pechanga Tribe acquired parcels in San Diego County is not germane.[26] What is Start Printed Page 18128germane is the fact that the Pechanga Reservation now lies within two different counties (Riverside and San Diego Counties) and thus straddles two different ozone areas for the 1997 8-hour ozone standard (South Coast and San Diego County) and that the Pechanga Reservation is a separate air quality planning area for the 2008 ozone standard. By establishing a separate area for the Pechanga Reservation for the 1997 8-hour ozone standard, the EPA will be aligning the air quality planning areas the two ozone standards thereby simplifying air quality planning and permitting functions at the reservation.[27]

As noted above, in this instance, we are giving “particular weight” to the jurisdictional boundaries factor. This means that the jurisdictional factor outweighs other factors that might otherwise counsel against establishment of a separate air quality planning area. In this case, for example, the relevant Indian country area is significantly impacted by upwind sources, a fact that may otherwise support inclusion of the Indian country area in a larger area. However, we have decided that, in this instance, such considerations are outweighed by the jurisdictional boundaries factor and thus proposed to grant the request by the Tribe for a separate area. Our giving of particular weight to the jurisdictional boundaries factor is appropriate given the minimal emissions associated with activities on the Pechanga Reservation, the corresponding minimal contribution from Pechanga-related emissions sources to regional ozone levels, and the location of the reservation on the border of two separate larger areas, is consistent with Tribal Designations Policy. See page 7 of the Tribal Designations Policy for examples of circumstances in which the jurisdictional boundaries factor may bear the most weight in evaluating requests for a separate area.

SCAQMD Comment #8: The SCAQMD contends that the EPA's action to establish the Pechanga Reservation as a separate air quality planning area for the 1997 8-hour ozone standard is inconsistent with the principles that EPA articulated in a previous rulemaking in which the Agency reclassified Indian country (except for the Morongo Reservation and Pechanga Reservation) within the South Coast consistent with the State's request for reclassification of lands under State jurisdiction within the South Coast from “Severe-17” to “Extreme.”

The previous rulemaking to which the SCAQMD refers, “Designation of Areas for Air Quality Planning Purposes; California; San Joaquin Valley, South Coast Air Basin, Coachella Valley, and Sacramento Metro Ozone Nonattainment Areas; Reclassification,” was proposed at 74 FR 43654 (August 27, 2009) and finalized (except for the Morongo Reservation and Pechanga Reservation) at 75 FR 24409 (May 5, 2010). As the SCAQMD notes, in the previous rulemaking, the EPA based its decision to reclassify areas of Indian country (other than the Morongo Reservation and Pechanga Reservation, for which final action was deferred) on such considerations as: (1) Boundaries of nonattainment areas are drawn to encompass both areas of direct sources of the pollution problem as well as nearby areas in the same airshed; (2) Emissions changes in lower-classified 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 area with a higher ozone classification; and (3) Uniformity of classification throughout a nonattainment area is thus a guiding principle and premise when an area is being reclassified.

The SCAQMD contends that the EPA has not explained why the rationale articulated by the EPA in the above reclassification rulemaking with respect to the areas of Indian country that were reclassified to “Extreme” does not continue to apply in evaluating the request by the Pechanga to establish a separate air quality planning area for the 1997 8-hour ozone standard.

Response to SCAQMD Comment #8: Since the EPA's 2010 final action to grant the State of California's request to reclassify the portion of the South Coast subject to State jurisdiction, and to reclassify Indian country (other than the Morongo and Pechanga Reservations) in the South Coast consistent with the State's request, the EPA has issued its Tribal Designations Policy and applied the principles of the policy in designating the Pechanga Reservation as a separate ozone nonattainment area for the 2008 ozone standard. In so doing, the EPA remains cognizant of the considerations set forth in that earlier rulemaking that caution against undue subdivision of larger air quality planning areas into smaller areas with different classifications. However, the EPA is also cognizant of the distinct jurisdictional principles associated with Indian reservations and the general absence of state regulatory jurisdiction in such areas. The Tribal Designation Policy was issued in part to apply these principles and in recognition of tribal sovereignty in the designations context.

More specifically, we continue to believe that boundaries of nonattainment areas should generally encompass both areas of direct sources of the pollution problem as well as nearby areas in the same airshed and continue to consider uniformity of classification as a guiding principle to avoid the potential hindrance by lower-classified areas to regional planning efforts to attain the standard. The Tribal Designation Policy retains these considerations in evaluating requests by tribes for separate areas as part of a multi-factor analysis. In this instance, we have concluded that establishment of the Pechanga Reservation as a separate area would not hinder regional efforts to attain or maintain the ozone NAAQS, and the benefit of retaining the Pechanga Reservation in two separate airsheds (South Coast and San Diego) is outweighed by other considerations, namely, the jurisdictional boundaries factor.

III. Final Action

For the reasons set forth in the proposed rule and in response to comments above, the EPA is taking final action to establish the Pechanga Reservation as a separate air quality planning area for the 1997 8-hour ozone standard, to approve the Tribe's submittal of the Pechanga Ozone Maintenance Plan, and to approve the Tribe's request to redesignate the newly-designated Pechanga Reservation air quality planning area from nonattainment to attainment for the 1997 8-hour ozone standard.

More specifically, first, pursuant to CAA section 107(d)(3), the EPA is taking final action to revise the boundaries of the South Coast and San Diego County air quality planning areas for the 1997 8-hour ozone standard to designate the Pechanga Reservation as a separate nonattainment area for the 1997 8-hour ozone standard. We are doing 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 Start Printed Page 18129jurisdictional boundaries factor should be given particular weight under these circumstances. As a result of our final action, the Pechanga Reservation air quality planning area for the 1997 8-hour ozone standard has the same boundaries as the Pechanga Reservation nonattainment area for the 2008 ozone standard and the 2012 annual PM2.5 standard.[28]

Second, pursuant to CAA section 110(k), the EPA is taking final action to approve the Pechanga Ozone Maintenance Plan, submitted by the Tribe on November 4, 2014, as the Tribe's TIP for maintaining the 1997 8-hour ozone standard within the Pechanga Reservation for ten years beyond redesignation, because it meets the requirements for maintenance plans under CAA section 175A.

Lastly, pursuant to CAA section 107(d)(3), and based in part on our approval of the Pechanga Ozone Maintenance Plan, the EPA is taking final action to grant a request from the Tribe to redesignate the newly-established Pechanga Reservation ozone air quality planning area to attainment for the 1997 8-hour ozone standard because the request meets the statutory requirements for redesignation in CAA section 107(d)(3)(E).

As a result of our final action, certain CAA requirements that had applied to the Pechanga Reservation by virtue of its inclusion in the South Coast “Extreme” ozone nonattainment area for the revoked 1-hour ozone standard no longer apply, nor do the requirements that had applied to the reservation by virtue of its designation as “Severe-17” for the 1997 8-hour ozone standard. The requirements that no longer apply include, among others, the NNSR major source threshold of 10 tpy for ozone precursor emissions in “Extreme” ozone nonattainment areas. New or modified stationary sources proposed at the Pechanga Reservation 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.

The EPA finds that there is good cause for approval of this TIP and redesignation to attainment to become effective immediately upon publication because a delayed effective date is unnecessary due to the nature of a redesignation to attainment which relieves the area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this redesignation is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction” and section 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.”

IV. 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 and applicable federal rules. Redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of less stringent 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 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 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, the final actions have “tribal implications” as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), with respect to the Pechanga Tribe. However, the actions would not impose substantial direct compliance costs or preempt tribal law. Moreover, these 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.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action 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 Start Printed Page 18130until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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 June 2, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Start List of Subjects

List of Subjects

40 CFR Part 49

  • Environmental protection
  • Air pollution control
  • Incorporation by reference
  • 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
End List of Subjects Start Signature

Dated: March 20, 2015.

Jared Blumenfeld,

Regional Administrator, Region IX.

End Signature

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

Start Part

PART 49—INDIAN COUNTRY: AIR QUALITY PLANNING AND MANAGEMENT

End Part Start Amendment Part

1. The authority citation for part 49 continues to read as follows:

End Amendment Part Start Authority

Authority: 42 U.S.C. 7401, et seq.

End Authority

Subpart L—Implementation Plans for Tribes—Region IX

Start Amendment Part

2. Subpart L of part 49 is amended by adding an undesignated center heading and § 49.5514 to read as follows:

End Amendment Part

Implementation Plan for the Pechanga Band of Luiseño Mission Indians of the Pechanga Reservation

EPA-approved Tribal rules and plans.

(a) Purpose and scope. This section contains the approved implementation plan for the Pechanga Band of Luiseño Mission Indians of the Pechanga Reservation dated May 2014. The plan consists of a redesignation request, a demonstration of maintenance of the 1997 8-hour ozone national ambient air quality standard, and related commitments to continue monitoring and to implement contingency provisions in the event of a monitored violation of the standard.

(b) [Reserved]

(c) [Reserved]

(d) EPA-approved nonregulatory provisions and quasi-regulatory measures.

EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures for the Pechanga Band of Luiseño Mission Indians of the Pechanga Reservation

Name of nonregulatory or quasi-regulatory TIP provisionTribal submittal dateEPA approval dateExplanation
Ozone Redesignation Request and Maintenance Plan for Pechanga Band of Luiseño Mission Indians of the Pechanga Reservation Nonattainment Area (May 2014)November 4, 2014[INSERT Federal Register CITATION April 3, 2015Tribal redesignation request and maintenance plan for the 1997 8-hour ozone standard.
Start Part

PART 81—DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

End Part Start Amendment Part

4. The authority citation for part 81 continues to read as follows:

End Amendment Part Start Authority

Authority: 42 U.S.C. 7401, et seq.

End Authority

Subpart C—Section 107 Attainment Status Designations

Start Amendment Part

5. Section 81.305 is amended in the table for “California—1997 8-Hour Ozone NAAQS (Primary and Secondary)” by:

End Amendment Part Start Amendment Part

a. Revising the entry under “Los Angeles-South Coast Air Basin, CA”;

End Amendment Part Start Amendment Part

b. Adding an entry for “Pechanga Reservation” following the entry “San Bernardino County (part)” under the entry “Los Angeles-South Coast Air Basin, CA”;

End Amendment Part Start Amendment Part

c. Revising the entry under “San Diego, CA”; and

End Amendment Part Start Amendment Part

d. Adding Footnote (f).

End Amendment Part

The revisions and additions read as follows:

California.
* * * * *

California—1997 8-Hour Ozone NAAQS

[Primary and secondary]

Designated areaDesignation aClassification
Date 1TypeDate 1Type
*         *         *         *         *         *         *
Los Angeles—South Coast Air Basin, CA: dfNonattainment(2)Subpart 2/Extreme.
Los Angeles County (part)Nonattainment(2)Subpart 2/Extreme.
Start Printed Page 18131
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 CountyNonattainment(2)Subpart 2/Extreme.
Riverside County (part)Nonattainment(2)Subpart 2/Extreme.
Start Printed Page 18132
That portion of Riverside County 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
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
Pechanga Reservation cApril 3, 2015Attainment.
*         *         *         *         *         *         *
San Diego, CA
San Diego County (part)f
That portion of San Diego County that excludes the areas listed below: La Posta Areas #1 and #2,b Cuyapaipe Area,b Manzanita Area,b Campo Areas #1 and #2bJuly 5, 2013Attainment.
La Posta Areas #1 and #2 bUnclassifiable/Attainment.
Cuyapaipe Area bUnclassifiable/Attainment.
Manzanita Area bUnclassifiable/Attainment.
Campo Areas #1 and #2 bUnclassifiable/Attainment.
*         *         *         *         *         *         *
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.
d Excludes Morongo Band of Mission Indians' Indian country in Riverside County.
    *         *         *         *         *         *         *
f Excludes the Pechanga Reservation.Start Printed Page 18133
1 This date is June 15, 2004, unless otherwise noted.
2 This date is June 4, 2010.
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Footnotes

1.  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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2.  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 stationary sources such as power plants and industrial emissions sources, mobile sources such as on-road and nonroad motor vehicles and engines, and smaller sources that are collectively referred to as “area sources.”

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3.  The Pechanga Band of Luiseño 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.

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4.  In 1997, the EPA revised the ozone standard to 0.08 ppm, 8-hour average (“1997 8-hour ozone standard”), and then, in 2008, lowered the eight-hour ozone standard to 0.075 ppm (“2008 ozone standard”).

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5.  In proposing to revise the boundaries of the South Coast and San Diego air quality planning areas and to establish the Pechanga Reservation as a separate area for the 1997 8-hour ozone standard, the EPA applied the principles set forth in the EPA's “Policy for Establishing Separate Air Quality Designations for Areas in Indian Country” (“Tribal Designation Policy”). 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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6.  We designated the Pechanga Reservation as a separate air quality planning area for the 2008 ozone standard in 2012 (77 FR 30088, at 30109; May 21, 2012). More recently, we designated the Pechanga Reservation as a separate air quality planning area for the 2012 annual fine particle (PM2.5) standard. See 80 FR 2206, at 2225 (January 15, 2015).

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7.  The transportation conformity rule includes the requirements for the tests that must be satisfied in areas such as the Pechanga Reservation area which does not have its own motor vehicle emission budgets but whose emissions were previously included in budgets for a larger nonattainment area. See 40 CFR 93.109(c)(2)(ii).

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8.  On March 3, 2015, the EPA received a late comment letter from the Tribe responding to the SCAQMD's comment letter on the proposed rule. We have not provided responses to the comments in the Tribe's letter in this document but have included it in the docket for this rulemaking.

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9.  Please see the docket item titled, “Maximum Daily 8-hour Ozone Concentrations for Selected Monitors 2012-2014” for the updated data presentation.

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10.  The 2008 ozone standard is 0.075 ppm, 8-hour average, and while the data in table 1 of this document from the Pechanga monitor are consistent with today's final determination that the Pechanga Reservation has attained the 1997 8-hour ozone standard, the data are also consistent with the EPA's designation of the Pechanga Reservation as a nonattainment area for the 2008 ozone standard.

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11.  See EPA Region IX, Pechanga Ozone Data Assessment, August 4, 2011.

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12.  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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13.  See memorandum from John Calcagni, Director, Air Quality Management Division, EPA Office of Air Quality Planning and Standards, titled “Procedures for Processing Requests to Redesignate Areas to Attainment,” dated September 4, 1992.

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14.  See figure 5-13 of the SCAQMD's 2012 Final Air Quality Management Plan (February 2013).

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15.  “Indian country” as defined at 18 U.S.C. 1151 refers to (1) 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, (2) 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 (3) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

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16.  The Pechanga Ozone Maintenance Plan predicts an increase in NOX emissions from stationary sources; however, the plan predicts that overall emissions associated with the reservation would decline due to offsetting reductions in mobile source emissions.

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17.  Certain low-emitting new sources are exempt from permitting under the EPA's Indian country minor NSR program. Specifically, given the continued status of the Pechanga Reservation as a “nonattainment” area for the 2008 ozone standard, notwithstanding today's action to redesignate the reservation as “attainment” for the 1997 8-hour ozone standard, the applicable minor source exemption thresholds are 2 tpy for VOC and 5 tpy of NOX. See 40 CFR 49.153 (table 1 to § 49.153).

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18.  These principles are set forth in the EPA's guidance document from John Calcagni, Director, Air Quality Management Division, EPA Office of Air Quality Planning and Standards, titled “Procedures for Processing Requests to Redesignate Areas for Attainment,” dated September 4, 1992, page 4.

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19.  When Congress intended CAA provisions to apply in an area, it did so explicitly. See, e.g., CAA section 182(b)(1)(B) (“. . . the term “baseline emissions” means . . . emissions from all anthropogenic sources in the area. . . .”) (emphasis added.)

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20.  See “A Legislative History of the Clean Air Act Amendments of 1990,” Committee Print, 103rd Congress, 1st Session, November 1993. The relevant pages for section 107 are listed on pages 10818-10919 of the section-by-section index found at the end of volume VI.

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21.  The SCAQMD also notes an apparent discrepancy in the population figures for the reservation. The proposed rule notes 800 residents whereas the Tribe's August 19, 2014 Application for Treatment as a State identifies only 500 residents.

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22.  The average daily trip value for non-residents is based on a trip generation rate of 4.5 daily trips per slot machine from the Draft Tribal Environmental Impact Report for the Pala Casino and Spa Expansion Project (November 28, 2006), page 59. Resident trips assumed 10 daily trips per dwelling unit. Non-resident vehicle mix is assumed to be the same as that used to calculate vehicle emissions for the Graton Resort and Casino project.

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23.  Documentation for the revised on-road motor vehicle emissions estimates is contained in a document titled “Pechanga Casino—Emissions Inventory,” dated March 16, 2015.

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24.  See John Calcagni, Director, Air Quality Management Division, EPA Office of Air Quality Planning and Standards, titled “Procedures for Processing Requests to Redesignate Areas for Attainment,” dated September 4, 1992, page 12.

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25.  The Pechanga Ozone Maintenance Plan refers to “ . . . implementation of any additional necessary and appropriate measure(s). . . .” (emphasis added). In addition, the EPA is authorized under CAA sections 301(a) and 301(d)(4) to promulgate FIP provisions as are “necessary or appropriate” (emphasis added) to protect air quality in Indian country, if a tribe does not submit a TIP. See 40 CFR 49.11.

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26.  The Pechanga Reservation was expanded to include certain lands in Riverside County and San Diego County under Public Law 110-383, the Pechanga Band of Luiseño Mission Indians Land Transfer Act of 2007. See 78 FR 46603 (August 1, 2013). The public law that was ultimately passed by the 110th Congress and signed by the President on October 10, 2008 was originally introduced on July 22, 2004 as House Bill No. 4908 in the 108th Congress. On July 28, 2005, the bill was reintroduced in the 109th Congress as House Bill 3507. The bill that later became law was reintroduced in the 110th Congress as House Bill 2963 on July 10, 2007. We note that the Tribe began working with the Bureau of Land Management in the 1990's to place these lands into trust. See Statement of Mark Macarro, Pechanga Band of Luiseño Mission Indians, Senate Committee on Indian Affairs, Legislative Hearing on H.R. 2963, Pechanga Band of Luiseño Mission Indians Land Transfer Act, May 15, 2008. Lastly, we note that, under Public Law 110-383, the lands transferred to the reservation in 2008 may be used only as open space and for the protection, preservation, and maintenance of the archaeological, cultural, and wildlife resources thereon.

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27.  In addition, as noted previously, we recently designated the Pechanga Reservation as a separate air quality planning area for the 2012 annual fine particle (PM2.5) standard. See 80 FR 2206, at 2225 (January 15, 2015). As such, we will also be aligning the ozone air quality planning area with the 2012 annual PM2.5 air quality planning area.

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28.  In our proposed rule at 80 FR 438, we indicated that if we finalize our proposed action to revise the boundaries of the South Coast and San Diego air quality planning areas to designate the Pechanga Reservation as a separate nonattainment area for the 1997 8-hour ozone standard, the EPA would withdraw our proposed action to reclassify the Pechanga Reservation to “Extreme” for the 1997 8-hour ozone standard (74 FR 43654, August 27, 2009). (In 2010, we deferred final reclassification with respect to the Pechanga Reservation (and the Morongo Reservation) when we took final action to reclassify the South Coast for the 1997 eight-hour ozone standard (75 FR 24409, May 5, 2010).) Given today's final action and consistent with our statement from the proposed rule, EPA is withdrawing our 2009 proposed reclassification action to the extent it relates to the Pechanga Reservation in the Proposed Rules section of this Federal Register.

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[FR Doc. 2015-07534 Filed 4-2-15; 8:45 am]

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