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, 24409-24421 [2010-9599]
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Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Rules and Regulations
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IV. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP 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 SIP
submissions, EPA’s role is to approve
State choices, provided that they meet
the criteria of the Clean Air Act.
Accordingly, this action merely
approves State law as meeting Federal
requirements and does not impose
additional requirements beyond those
imposed by State law. For that reason,
this action:
• Is 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);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is 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.);
• 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);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is 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 Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the State, and EPA notes that
it will not impose substantial direct
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costs on tribal governments or preempt
tribal law.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this 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 until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
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 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)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements.
Dated: March 18, 2010.
Jared Blumenfeld,
Regional Administrator, Region IX.
Part 52, Chapter I, Title 40 of the Code
of Federal Regulations is amended as
follows:
■
PART 52—[AMENDED]
1. The authority citation for Part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart F—California
2. Section 52.220, is amended by
adding paragraphs (c)(362)(i)(D)(1) to
read as follows:
■
§ 52.220
*
Identification of plan.
*
*
(c) * * *
(362) * * *
(i) * * *
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24409
(D) San Joaquin Valley Air Pollution
Control District.
(1) Rule 4902, ‘‘Residential Water
Heaters,’’ amended on March 19, 2009.
*
*
*
*
*
[FR Doc. 2010–10404 Filed 5–4–10; 8:45 am]
BILLING CODE 6560–50–P
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.
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 Luiseno Mission Indians
(‘‘Pechanga Tribe’’), in keeping with the
classifications of nonattainment areas
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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 https://
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,
mays.rory@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, the terms
‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA.
Table of Contents
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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 Luiseno 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
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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
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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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.
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
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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
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
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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.
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
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 ‘‘severe15’’ 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.
3 Memorandum from Stephen D. Page, Director,
Office of Air Quality Planning and Standards,
‘‘Guidance on Developing Fee Programs Required by
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24411
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 HoustonGalveston-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.
III. Deferral of Reclassification for
Morongo Band of Mission Indians and
˜
Pechanga Band of Luiseno 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
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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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 8hour 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
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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
5 See 73 FR 16436 (March 27, 2008) for the 2008
Revised Ozone NAAQS.
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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
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 uniformlyclassified 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.
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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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.
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’ ninefactor 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
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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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
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24413
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
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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
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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
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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.
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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 1hour 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
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 * * *’’).
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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.
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
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
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.
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24415
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
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.
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.
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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 (including the Big Sandy
Rancheria).
Cold Springs Rancheria of Mono
Indians (including the Cold
Springs Rancheria).
Cahuilla Band of Indians (including the Cahuilla Reservation).
Agua Caliente Band of Cahuilla
Indians (including the Agua
Caliente Indian Reservation).
Augustine Band of Cahuilla Indians (including the Augustine
Reservation).
North Fork Rancheria of Mono Indians (including the North Fork
Rancheria).
Picayune Rancheria of Chukchansi
Indians (including the Picayune
Rancheria).
San Manuel Band of Mission Indians (including the San Manuel
Reservation).
Santa Rosa Band of Cahuilla Indians (including the South Coast
Air Basin portion of the Santa
Rosa Reservation).
˜
Soboba Band of Luiseno Indians
(including the Soboba Reservation).
Reclassification Deferred for:
Morongo Band of Mission Indians
(including the Morongo Reservation).
Reclassification
Deferred
for:
˜
Pechanga Band of Luiseno Mission Indians (including the
Pechanga Reservation).
Rumsey Indian Rancheria of
Wintun Indians (including the
Rumsey Indian Rancheria).
Shingle Springs Band of Miwok
Indians [including the Shingle
Springs Rancheria (Verona
Tract).
United Auburn Indian Community
(including
the
Auburn
Rancheria).
Santa Rosa Indian Community (including
the
Santa
Rosa
Rancheria).
Table Mountain Rancheria (including
the
Table
Mountain
Rancheria).
Tule River Indian Tribe (including
the Tule River Reservation).
Ramona Band of Cahuilla Mission
Indians (including the Ramona
Band).
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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
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Cabazon Band of Mission Indians
(including the Cabazon Reservation).
Santa Rosa Band of Cahuilla Indians (including the Coachella
Valley portion of the Santa
Rosa Reservation).
Torres Martinez Desert Cahuilla
Indians (including the TorresMartinez Reservation)
Twenty-Nine Palms Band of Mission Indians (including the
Twenty-Nine Palms Reservation-Riverside County Section).
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
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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
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
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.
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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 Luiseno 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 Luiseno 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.
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.
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).)
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).
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.
Part 81, chapter I, title 40 of the Code
of Federal Regulations is amended as
follows:
■
PART 81—[AMENDED]
1. The authority citation for part 81
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart C—[Amended]
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:
■
§ 81.305
California.
CALIFORNIA—OZONE (8-HOUR STANDARD)
Designation a
Classification
Designated area
Date1
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.
*
*
*
*
Los Angeles—South Coast Air Basin, CA ................................................
Los Angeles County (part) ........................................................................
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
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Type
............
............
*
Nonattainment ...........
Nonattainment ...........
˜
Luiseno 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
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Date1
*
(2)
(2)
Type
*
Subpart 2/Extreme.
Subpart 2/Extreme.
Tribe is affected by this final action in relation to
its Indian country in the Coachella Valley
nonattainment area.
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CALIFORNIA—OZONE (8-HOUR STANDARD)—Continued
Designation a
Classification
Designated area
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Date1
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 ..........................................................................................
Riverside County (part) .............................................................................
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 ......................................................................
Pechanga Reservation c ...............................................................
San Bernardino County (part) ...................................................................
That portion of San Bernardino County which lies south and west
of a line described as follows: Beginning at the San BernardinoRiverside 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 Valley), CA ..............................................................
Riverside County (part) .............................................................................
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............
............
Nonattainment ...........
Nonattainment ...........
(2)
(2)
Subpart 2/Extreme.
Subpart 2/Extreme.
............
............
............
Nonattainment ...........
Nonattainment ...........
Nonattainment ...........
(2)
(2)
(2)
Subpart 2/Severe-17.
Subpart 2/Severe-17.
Subpart 2/Extreme.
............
............
*
Nonattainment ...........
Nonattainment ...........
(2)
(2)
*
Subpart 2/Severe-15.
Subpart 2/Severe-15.
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Date1
05MYR1
*
Type
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CALIFORNIA—OZONE (8-HOUR STANDARD)—Continued
Designation a
Classification
Designated area
Date1
Type
Date1
............
............
*
Nonattainment ...........
Nonattainment ...........
............
............
............
Type
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.
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*
*
*
Sacramento Metro, CA .....................................................................................
El Dorado County (part) ............................................................................
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) ..................................................................................
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 ..................................................................................
Solano County (part) .................................................................................
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(2)
(2)
*
Subpart 2/Severe-15.
Subpart 2/Severe-15.
Nonattainment ...........
(2)
Subpart 2/Severe-15.
Nonattainment ...........
Nonattainment ...........
(2)
(2)
Subpart 2/Severe-15.
Subpart 2/Severe-15.
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CALIFORNIA—OZONE (8-HOUR STANDARD)—Continued
Designation a
Classification
Designated area
Date1
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) ..................................................................................
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 ...............................................................................................
*
*
*
*
San Joaquin Valley, CA ...................................................................................
Fresno County ...........................................................................................
Kern County (part) ....................................................................................
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 .............................................................................................
Madera County ..........................................................................................
Merced County ..........................................................................................
San Joaquin County ..................................................................................
Stanislaus County .....................................................................................
Tulare County ............................................................................................
*
*
*
Type
............
Nonattainment ...........
(2)
Subpart 2/Severe-15.
............
Nonattainment ...........
(2)
Subpart 2/Severe-15.
............
............
............
*
Nonattainment ...........
Nonattainment ...........
Nonattainment ...........
(2)
(2)
(2)
*
Subpart 2/Extreme.
Subpart 2/Extreme.
Subpart 2/Extreme.
............
............
............
............
............
............
Nonattainment
Nonattainment
Nonattainment
Nonattainment
Nonattainment
Nonattainment
(2)
(2)
(2)
(2)
(2)
(2)
Subpart
Subpart
Subpart
Subpart
Subpart
Subpart
*
Date1
...........
...........
...........
...........
...........
...........
*
*
a Includes
2/Extreme.
2/Extreme.
2/Extreme.
2/Extreme.
2/Extreme.
2/Extreme.
*
Indian Country located in each county or area, except as otherwise specified.
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.
b The
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Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Rules and Regulations
1 This
2 This
*
*
date is June 15, 2004, unless otherwise noted.
date is June 4, 2010.
*
*
(703) 305–6605; e-mail address:
keigwin.tracy @epa.gov.
SUPPLEMENTARY INFORMATION:
*
[FR Doc. 2010–9599 Filed 5–4–10; 8:45 am]
BILLING CODE 6560–50–P
I. General Information
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
[EPA–HQ–OPP–2009–0611; FRL–8821–4]
Tebuconazole; Pesticide Tolerances
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: This regulation establishes
tolerances for residues of tebuconazole
in or on vegetable, fruiting, group 8.
Bayer CropScience requested these
tolerances under the Federal Food,
Drug, and Cosmetic Act (FFDCA).
DATES: This regulation is effective May
5, 2010. Objections and requests for
hearings must be received on or before
July 6, 2010, and must be filed in
accordance with the instructions
provided in 40 CFR part 178 (see also
Unit I.C. of the SUPPLEMENTARY
INFORMATION).
EPA has established a
docket for this action under docket
identification (ID) number EPA–HQ–
OPP–2009–0611. All documents in the
docket are listed in the docket index
available at https://www.regulations.gov.
Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available in the electronic docket at
https://www.regulations.gov, or, if only
available in hard copy, at the OPP
Regulatory Public Docket in Rm. S–
4400, One Potomac Yard (South Bldg.),
2777 S. Crystal Dr., Arlington, VA. The
Docket Facility is open from 8:30 a.m.
to 4 p.m., Monday through Friday,
excluding legal holidays. The Docket
Facility telephone number is (703) 305–
5805.
FOR FURTHER INFORMATION CONTACT:
Tracy Keigwin, Registration Division
(7505P), Office of Pesticide Programs,
Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington,
DC 20460–0001; telephone number:
ADDRESSES:
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A. Does this Action Apply to Me?
You may be potentially affected by
this action if you are an agricultural
producer, food manufacturer, or
pesticide manufacturer. Potentially
affected entities may include, but are
not limited to those engaged in the
following activities:
• Crop production (NAICS code 111).
• Animal production (NAICS code
112).
• Food manufacturing (NAICS code
311).
• Pesticide manufacturing (NAICS
code 32532).
This listing is not intended to be
exhaustive, but rather to provide a guide
for readers regarding entities likely to be
affected by this action. Other types of
entities not listed in this unit could also
be affected. The North American
Industrial Classification System
(NAICS) codes have been provided to
assist you and others in determining
whether this action might apply to
certain entities. If you have any
questions regarding the applicability of
this action to a particular entity, consult
the person listed under FOR FURTHER
INFORMATION CONTACT.
B. How Can I Get Electronic Access to
Other Related Information?
You may access a frequently updated
electronic version of EPA’s tolerance
regulations at 40 CFR part 180 through
the Government Printing Office’s e-CFR
cite at https://www.gpoaccess.gov/ecfr.
To access the harmonized test
guidelines referenced in this document
electronically, please go to https://
www.epa.gov/oppts and select ‘‘Test
Methods and Guidelines.’’
C. Can I File an Objection or Hearing
Request?
Under section 408(g) of FFDCA, 21
U.S.C. 346a, any person may file an
objection to any aspect of this regulation
and may also request a hearing on those
objections. You must file your objection
or request a hearing on this regulation
in accordance with the instructions
provided in 40 CFR part 178. To ensure
proper receipt by EPA, you must
identify docket ID number EPA–HQ–
OPP–2009–0611 in the subject line on
the first page of your submission. All
requests must be in writing, and must be
mailed or delivered to the Hearing Clerk
PO 00000
Frm 00049
Fmt 4700
Sfmt 4700
as required by 40 CFR part 178 on or
before July 6, 2010.
In addition to filing an objection or
hearing request with the Hearing Clerk
as described in 40 CFR part 178, please
submit a copy of the filing that does not
contain any CBI for inclusion in the
public docket that is described in
ADDRESSES. Information not marked
confidential pursuant to 40 CFR part 2
may be disclosed publicly by EPA
without prior notice. Submit this copy,
identified by docket ID number EPA–
HQ–OPP–2009–0611, by one of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the on-line
instructions for submitting comments.
• Mail: Office of Pesticide Programs
(OPP) Regulatory Public Docket (7502P),
Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington,
DC 20460–0001.
• Delivery: OPP Regulatory Public
Docket (7502P), Environmental
Protection Agency, Rm. S–4400, One
Potomac Yard (South Bldg.), 2777 S.
Crystal Dr., Arlington, VA. Deliveries
are only accepted during the Docket
Facility’s normal hours of operation
(8:30 a.m. to 4 p.m., Monday through
Friday, excluding legal holidays).
Special arrangements should be made
for deliveries of boxed information. The
Docket Facility telephone number is
(703) 305–5805.
II. Petition for Tolerance
In the Federal Register of September
4, 2009 (74 FR 45848) (FRL–8434–4),
EPA issued a notice pursuant to section
408(d)(3) of FFDCA, 21 U.S.C.
346a(d)(3), announcing the filing of a
pesticide petition (PP 9F7515) by Bayer
CropScience, 2 T.W. Alexander Dr., P.O.
Box 12014, Research Triangle Park, NC
27709. The petition requested that 40
CFR part 180 be amended by
establishing tolerances for residues of
the fungicide tebuconazole in or on the
raw agricultural commodity vegetables,
fruiting, group at 1.4 parts per million
(ppm). That notice referenced a
summary of the petition prepared by
Bayer CropScience, the registrant,
which is available to the public in the
docket, https://www.regulations.gov.
There were no comments received in
response to the notice of filing.
Based upon review of the data
supporting the petition, EPA has
modified the proposed tolerance to 1.3
ppm. The reason for this change is
explained in Unit IV.C.
E:\FR\FM\05MYR1.SGM
05MYR1
]]>Agencies
[Federal Register Volume 75, Number 86 (Wednesday, May 5, 2010)]
[Rules and Regulations]
[Pages 24409-24421]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-9599]
-----------------------------------------------------------------------
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
https://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,
mays.rory@epa.gov.
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.
---------------------------------------------------------------------------
\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.''
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
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\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. 740
