Finding of Failure To Attain and Reclassification of Pechanga Nonattainment Area for the 2008 Ozone National Ambient Air Quality Standards, 4029-4032 [2019-02349]

Download as PDF Federal Register / Vol. 84, No. 31 / Thursday, February 14, 2019 / Proposed Rules continued downward trend in emissions between 2018 and 2021, and the downward trend in monitored PM2.5 concentrations all indicate that the Liberty monitor will attain and be able to maintain the 2012 annual PM2.5 NAAQS by 2021. With respect to Florida, in the CSAPR modeling analysis for the 1997 PM2.5 NAAQS, Florida did not have any potential nonattainment or maintenance receptors identified for the 1997 or 2006 PM2.5 NAAQS. At this time, it is anticipated that this trend will continue; however, as there are ambient monitoring data gaps in the 2009–2013 data that could have been used to identify potential PM2.5 nonattainment and maintenance receptors for Miami/ Dade, Gilchrist, Broward and Alachua counties in Florida, the modeling analysis of potential receptors was not complete for these counties. However, the most recent ambient data (2015– 2017) for these counties indicates design values well below the level of the 2012 annual PM2.5 NAAQS. In addition, the highest value for these observed monitors is 8.0 mg/m3 at the Hillsborough County monitor (12–057– 3002), which is well below the NAAQS. This is also consistent with historical data: Complete and valid design values in the 2006–2008, 2007–2009 and/or 2008–2010 periods for these counties were all well below the 2012 annual PM2.5 NAAQS. For these reasons, we find that none of the counties in Florida with monitoring gaps between 2009– 2013 should be considered either nonattainment or maintenance receptors for the 2012 annual PM2.5 NAAQS. For these reasons, we propose to find that emissions from Illinois will not significantly contribute to nonattainment or interfere with maintenance of the 2012 annual PM2.5 NAAQS in Florida. The conclusions of IEPA’s analysis is consistent with EPA’s expanded review of its submittal. The area (Allegheny County, PA) to which Illinois’ sources potentially contribute is expected to attain and maintain the 2012 annual PM2.5 NAAQS, and as demonstrated in IEPA’s submittal, Illinois will not contribute to projected nonattainment or maintenance issues at any sites in 2021. IEPA’s analysis shows that through permanent and enforceable measures currently contained in its SIP and other emissions reductions occurring in Illinois, monitored PM2.5 air quality in the identified area that Illinois sources may impact will continue to improve, and that no further measures are necessary to satisfy Illinois’ responsibilities under CAA section 110(a)(2)(D)(i)(I). Therefore, EPA is VerDate Sep<11>2014 17:17 Feb 13, 2019 Jkt 247001 proposing that prongs one and two of the interstate pollution transport element of Illinois’ infrastructure SIP are approvable. V. What action is EPA taking? EPA is proposing to approve a portion of IEPA’s September 29, 2017 submittal certifying that the current Illinois SIP is sufficient to meet the required infrastructure requirements under CAA section 110(a)(2)(D)(i)(I), specifically prongs one and two, as set forth above. VI. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. See 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 CAA. 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 Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); • Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866. • 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 PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 4029 application of those requirements would be inconsistent with the CAA; 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, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements. Dated: December 21, 2018. James O. Payne, Acting Regional Administrator, Region 5. [FR Doc. 2019–02214 Filed 2–13–19; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 81 [EPA–R09–OAR–2018–0831; FRL–9989–53– Region 9] Finding of Failure To Attain and Reclassification of Pechanga Nonattainment Area for the 2008 Ozone National Ambient Air Quality Standards Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is proposing to determine that the Pechanga Band of Luisen˜o Mission Indians of the Pechanga Reservation nonattainment area (‘‘Pechanga nonattainment area’’ or ‘‘Pechanga area’’) failed to attain the 2008 national ambient air quality standards for ozone (‘‘ozone NAAQS’’ or ‘‘ozone standards’’) by the applicable attainment date. The effect of failing to attain by the attainment date is that the ‘‘Moderate’’ Pechanga nonattainment area will be reclassified by operation of law to ‘‘Serious’’ upon the effective date of the final reclassification action. This proposed action, if finalized, would fulfill the EPA’s statutory obligation to SUMMARY: E:\FR\FM\14FEP1.SGM 14FEP1 4030 Federal Register / Vol. 84, No. 31 / Thursday, February 14, 2019 / Proposed Rules determine whether ozone nonattainment areas attained the NAAQS by the attainment date. DATES: Written comments must arrive on or before March 18, 2019. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R09– OAR–2018–0831 at https:// www.regulations.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/ commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Laura Lawrence, EPA Region IX, (415) 972–3407, lawrence.laura@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document, ‘‘we,’’ ‘‘us’’ and ‘‘our’’ refer to the EPA. Table of Contents I. Regulatory Context A. Ozone Standards B. Area Designations and Classifications C. Determinations of Attainment or Failure To Attain D. Reclassification II. Proposed Determination and Rationale A. Pechanga Ozone Nonattainment Area and Attainment Deadline B. Determination of Failure To Attain C. Reclassification to Serious III. Proposed Action and Request for Public Comment IV. Statutory and Executive Order Reviews I. Regulatory Context A. Ozone Standards Ground-level ozone pollution is formed from the reaction of volatile organic compounds (VOCs) and oxides of nitrogen (NOX) in the presence of sunlight. These two pollutants, referred VerDate Sep<11>2014 17:17 Feb 13, 2019 Jkt 247001 to as ozone precursors, are emitted by many types of sources, including on-and off-road motor vehicles and engines, power plants and industrial facilities, and smaller area sources such as lawn and garden equipment and paints. Scientific evidence indicates that adverse public health effects occur following exposure to elevated levels of ozone, particularly in children and adults with lung disease. Breathing air containing ozone can reduce lung function and inflame airways, which can increase respiratory symptoms and aggravate asthma or other lung diseases.1 Under section 109 of the Clean Air Act (CAA or ‘‘Act’’), the EPA promulgates NAAQS for pervasive air pollutants, such as ozone. The EPA has previously promulgated NAAQS for ozone in 1979 and 1997.2 In 2008, the EPA revised and further strengthened the ozone NAAQS by setting the acceptable level of ozone in the ambient air at 0.075 parts per million (ppm) averaged over an 8-hour period.3 Although the EPA further tightened the 8-hour ozone NAAQS to 0.070 ppm in 2015, this proposed action relates to the 2008 ozone NAAQS.4 B. Area Designations and Classifications Following promulgation of a new or revised NAAQS, the EPA is required under CAA section 107(d) to designate areas throughout the country as attaining or not attaining the NAAQS, and the EPA designated all areas in the country for the 2008 ozone NAAQS in 2012.5 With respect to the 2008 ozone NAAQS, the EPA classifies nonattainment areas under CAA section 181 and 40 CFR 51.1102 according to the severity of the ozone pollution problem, with classifications ranging from Marginal to Extreme. Attainment deadlines are determined by the nonattainment area’s classification in accordance with CAA section 181(a)(1) and 40 CFR 51.1102. Nonattainment area classification also determines, in part, the emissions control requirements for ozone applicable to the area. 1 See ‘‘Fact Sheet—2008 Final Revisions to the National Ambient Air Quality Standards for Ozone’’ dated March 2008. 2 The ozone NAAQS promulgated in 1979 was 0.12 parts per million (ppm) averaged over a 1-hour period. See 44 FR 8202 (February 8, 1979). The ozone NAAQS promulgated in 1997 was 0.08 ppm averaged over an 8-hour period. See 62 FR 38856 (July 18, 1997). 3 73 FR 16436 (March 27, 2008). The 2008 ozone NAAQS are codified at 40 CFR 50.15. 4 Information on the 2015 ozone NAAQS is available at 80 FR 65292 (October 26, 2015). 5 77 FR 30088 (May 21, 2012). The initial area designations for the 2008 ozone NAAQS were effective July 20, 2012. PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 C. Determinations of Attainment or Failure To Attain Section 181(b)(2) of the CAA requires the EPA to determine whether areas designated nonattainment for ozone attained the standards by the applicable attainment date.6 Under EPA regulations at 40 CFR part 50, Appendix P, the 2008 ozone NAAQS is attained at a site when the 3-year average of the annual fourth highest daily maximum 8hour average ambient air quality ozone concentration is less than or equal to 0.075 ppm. This 3-year average is referred to as the ‘‘design value.’’ When the design value is less than or equal to 0.075 ppm at each ambient air quality monitoring site within the area, the area is deemed to be attaining the ozone NAAQS. Because the design value is based on the three most recent calendar years of complete, quality-assured data, an area must attain the standard by the end of the full calendar year prior to the attainment date. The EPA’s determination of attainment is based upon data that have been collected and quality-assured in accordance with 40 CFR part 58 and recorded in the EPA’s Air Quality System (AQS) database.7 Ambient air quality monitoring data for the 3-year period preceding the attainment date must meet the data completeness requirements in Appendix P.8 The completeness requirements are met for the 3-year period at a monitoring site if daily maximum 8-hour average concentrations of ozone are available for at least 90 percent of the days within the ozone monitoring season, on average, for the 3-year period, and no single year has less than 75 percent data completeness. To make the determination that an area attains the NAAQS, each monitor must have a valid design value meeting the standard.9 If one or more monitors 6 In a recent rulemaking, the EPA proposed to make these determinations for most other areas in the country. See 83 FR 56781 (November 14, 2018). 7 The EPA maintains the AQS, a database that contains ambient air pollution data collected by the EPA, state, local, and tribal air pollution control agencies. The AQS also contains meteorological data, descriptive information about each monitoring station (including its geographic location and its operator) and data quality assurance/quality control information. The AQS data are used to (1) assess air quality, (2) assist in attainment/nonattainment designations, (3) evaluate SIPs for nonattainment areas, (4) perform modeling for permit review analysis, and (5) prepare reports for Congress as mandated by the CAA. Access is through the website at https://www.epa.gov/aqs. 8 40 CFR part 50, Appendix P, section 2.3(b). 9 Design values attaining the 2008 ozone NAAQS must also the meet minimum data completeness requirements specified in to 40 CFR part 50, Appendix P to be considered valid. E:\FR\FM\14FEP1.SGM 14FEP1 Federal Register / Vol. 84, No. 31 / Thursday, February 14, 2019 / Proposed Rules have a design value that exceeds the standard, the area does not attain the NAAQS. D. Reclassification In the event an area fails to attain the ozone NAAQS by the applicable attainment date, CAA section 181(b)(2)(A) requires the EPA to make the determination that the ozone nonattainment area failed to attain the ozone standard by the applicable attainment date, and requires the area to be reclassified by operation of law to the higher of either the next higher classification for the area, or the classification applicable to the area’s design value as of the determination of failure to attain. II. Proposed Determination and Rationale A. Pechanga Ozone Nonattainment Area and Attainment Deadline The Pechanga Band of Luisen˜o Mission Indians of the Pechanga Reservation (‘‘Pechanga Tribe’’) is a federally recognized tribe whose reservation (‘‘Pechanga Reservation’’) straddles the boundary between western Riverside and northern San Diego counties. The EPA designated the lands of the Pechanga Reservation as nonattainment for the 2008 ozone standards on May 21, 2012. At the time of designation, the nonattainment area consisted of the entirety of the Pechanga Reservation.10 At the time of designation, the Pechanga area was classified as a Moderate nonattainment area.11 Moderate areas were given a deadline of July 20, 2018, to attain the 2008 ozone NAAQS. As noted above, because the design value is based on the three most recent calendar years of complete, quality-assured data, an area must attain the standard by the end of the full calendar year prior to the attainment date. In this case, to determine whether an area classified as Moderate for the 2008 ozone standards attained the standards by the July 20, 2018 attainment date, we rely on complete, quality-assured and certified ozone monitoring data from calendar years 2015, 2016, and 2017. B. Determination of Failure To Attain We are proposing to determine that the Pechanga nonattainment area failed to attain the 2008 ozone standards by 10 The Pechanga Tribe has since acquired additional lands that they have placed in trust; however, the nonattainment area boundaries established in 2012 for these standards are unchanged and do not include these new properties. 11 77 FR 30088, at 30109 (May 21, 2012). VerDate Sep<11>2014 17:17 Feb 13, 2019 Jkt 247001 the July 20, 2018 attainment date. We are proposing this determination on the basis of complete, quality-assured and certified data for 2015–2017 at the Temecula monitoring site (AQS ID 06– 065–0016), which is located approximately 10 miles north of the Pechanga Reservation.12 The Temecula monitoring site is operated by the South Coast Air Quality Management District (SCAQMD). The Pechanga Tribe also operates an ozone monitoring site at the reservation and submits the data that it collects to AQS. However, the 2015– 2017 design value from the Pechanga monitoring site is invalid because it does not meet the completeness requirements for the 2008 ozone standard.13 Therefore, our proposed determination that the Pechanga nonattainment area failed to attain is based on data from the Temecula monitoring site rather than data collected at the Pechanga monitoring site. The EPA’s ‘‘Policy for Establishing Separate Air Quality Designations for Areas in Indian Country’’ (‘‘Tribal Designation Policy’’) anticipates the use of data from proximate state regulatory monitors to characterize air quality on tribal lands when air monitoring data are unavailable on the reservation.14 In a previous rulemaking, the EPA relied on 8-hour ozone data from the Temecula monitor to redesignate the Pechanga nonattainment area to attainment for the 1997 ozone NAAQS based on our 12 In accordance with 40 CFR 58, data-collecting agencies must certify annually that ambient concentration data and quality assurance data are completely submitted to AQS, and that the data are accurate to the best knowledge of the certifier, taking into consideration quality assurance findings. For certification for Temecula monitor data for calendar years 2015–2017, see 1) April 29, 2016 letter from Laki Tisopulos, South Coast Air Quality Management District Assistant Deputy Executive Officer to Deborah Jordan, EPA Region IX Air Division Director; 2) April 28, 2017 letter from Jason C. Low, South Coast Air Quality Management District Assistant Deputy Executive Officer, to Alexis Strauss, EPA Region IX Acting Regional Administrator; and 3) April 27, 2018 letter from Jason C. Low, South Coast Air Quality Management District Assistant Deputy Executive Officer, to Alexis Strauss, EPA Region IX Acting Regional Administrator. 13 AQS 2017 Design Value Report for Pechanga (AQS ID 06–065–0009), December 17, 2018. The 2015–2017 DV for the Pechanga monitoring site failed to meet the 75% annual completeness requirement in 2015 (67%) and the 90% 3-year completeness requirement for 2015–2017 (85%) and, therefore, is invalid. 40 CFR part 50, Appendix P, section 2.3(b). 14 ‘‘Policy for Establishing Separate Air Quality Designations for Areas of Indian Country,’’ a memorandum from Stephen D. Page, Director, EPA Office of Air Quality Planning and Standards, to EPA Regional Air Directors, Regions I–X, dated December 20, 2011. A copy of the Tribal Designation Policy is at https://www.epa.gov/ ozonedesignations/guidance.htm. See page 6 of the Tribal Designation Policy. PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 4031 conclusion that the data from the Temecula monitor were representative of ozone concentrations in the Pechanga nonattainment area.15 This conclusion was based on the following considerations: ozone pollution is regional in nature; the Temecula monitor is located just 10 miles from the Pechanga area; there are no significant topographic barriers between the monitor and the reservation; and available data from the Temecula and Pechanga monitors tracked very closely over the 2012 to 2014 period.16 The ozone data collected at SCAQMD’s Temecula monitoring site is complete and, as discussed above, representative of ozone concentrations at the reservation. The 2017 design value calculated from 2015–2017 data from the Temecula monitor is 0.080 ppm, which exceeds the 2008 ozone standard level of 0.075 ppm.17 C. Reclassification to Serious If we finalize the finding of failure to attain as proposed, the effect of this finding would be to reclassify the Pechanga nonattainment area by operation of law to Serious, the next higher classification, as provided under CAA section 181(b)(2)(A)(i). If reclassified, the Pechanga area would be required to attain the standard ‘‘as expeditiously as practicable’’ but no later than 9 years after the initial designation as nonattainment, which in this case would be no later than July 20, 2021. After reclassification to Serious, if the area attains the 2008 ozone NAAQS prior to the Serious-area attainment date, the area may seek a clean data determination or a redesignation to attainment. As noted above, control and permitting requirements for nonattainment areas are determined, in part, by their classification, and a reclassification from Moderate to Serious imposes additional control requirements. Under the CAA and the Tribal Authority Rule (TAR),18 tribes may, but are not required to, submit implementation plans to the EPA for approval. Under the TAR, the EPA has authority to implement such plan provisions as are necessary or appropriate to protect air quality where tribes do not do so. Accordingly, the EPA implements the tribal major source nonattainment new source review 15 80 FR 18120 (April 3, 2015). FR 18120, at 18121–18122 (April 3, 2015) (Response to SCAQMD Comment #1). 17 AQS 2017 Design Value Report for Temecula (AQS ID 06–065–0016), report date December 12, 2018. 18 CAA section 301(d) and 40 CFR part 49. 16 80 E:\FR\FM\14FEP1.SGM 14FEP1 4032 Federal Register / Vol. 84, No. 31 / Thursday, February 14, 2019 / Proposed Rules (NSR) 19 and the title V operating permit 20 programs in areas without delegated programs. If this proposed reclassification is finalized, the Pechanga nonattainment area will be subject to the Serious area provisions of the tribal major source nonattainment NSR regulations and title V regulations cited above, but it will not be required to submit an implementation plan to address any part D or title V requirements. The Pechanga area is currently subject to Moderate area major source thresholds of 100 tons per year (tpy) for ozone precursors. If this proposal is finalized, the Pechanga area major source thresholds will be lowered to 50 tpy for ozone precursors. The NSR control requirements for minor sources under the tribal minor NSR regulations will remain the same.21 III. Proposed Action and Request for Public Comment The EPA is proposing to determine that the Pechanga nonattainment area failed to attain the 2008 ozone NAAQS by its applicable Moderate area attainment date of July 20, 2018, based on complete, quality-assured and certified data from the Temecula monitoring site for years 2015–2017. The effect of this determination, if finalized, will be to reclassify the Pechanga nonattainment area from Moderate to Serious for the 2008 ozone NAAQS. The EPA is soliciting comments on our proposed action and rationale over the next 30 days. IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review This proposed action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review. B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs This proposed action is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866. C. Paperwork Reduction Act (PRA) This proposed rule does not impose an information collection burden under the provisions of the PRA. As noted CFR 49.166 through 49.173. 20 40 CFR part 71. 21 40 CFR 49.151 through 49.164. 17:17 Feb 13, 2019 D. Regulatory Flexibility Act (RFA) I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This proposed action will not impose any requirements on small entities. The proposed determination of failure to attain the 2008 ozone NAAQS (and resulting reclassification) does not in and of itself create any new requirements beyond what is mandated by the CAA. Instead, this proposed rulemaking only makes factual determinations, and does not directly regulate any entities. E. Unfunded Mandates Reform Act (UMRA) This proposed action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531–1538, and does not significantly or uniquely affect small governments. This proposed action imposes no enforceable duty on any state, local or tribal governments or the private sector. F. Executive Order 13132: Federalism This proposed action does not have federalism implications. It will not have substantial direct effects on the states, tribes, or the relationship between the national government and the states and tribes, or on the distribution of power and responsibilities among the various levels of government. G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This proposed action has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. EPA staff have discussed this proposed rule with environmental staff of the Pechanga Tribe. Additionally, an opportunity for formal government-togovernment consultation is being extended to Pechanga tribal officials in conjunction with this rulemaking. This outreach and consultation is being conducted according to the ‘‘EPA Policy on Consultation and Coordination with Indian Tribes.’’ 22 22 The document ‘‘EPA Policy on Consultation and Coordination with Indian Tribes’’ is available at https://www.epa.gov/tribal/forms/consultationand-coordination-tribes. 19 40 VerDate Sep<11>2014 above, under the CAA and TAR, tribes may, but are not required to, submit implementation plans to the EPA for approval to address the more stringent requirements that apply to Serious ozone nonattainment areas relative to Moderate ozone nonattainment areas. Jkt 247001 PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of ‘‘covered regulatory action’’ in section 2–202 of the Executive Order. This proposed action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk. I. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This proposed action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866. J. National Technology Transfer Advancement Act (NTTAA) This proposed rulemaking does not involve technical standards. K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations The EPA believes that this proposed action will not have disproportionately high or adverse human health or environmental effects on minority, low income, or indigenous populations. The purpose of this rule is to make the determination whether a certain area attained the 2008 ozone NAAQS by the attainment date, which is required by the CAA for purposes of implementing the 2008 ozone NAAQS. As such, this action does not directly affect the level of protection provided for human health or the environment. List of Subjects in 40 CFR Part 81 Environmental protection, Administrative practice and procedure, Air pollution control, Designations and classifications, Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, and Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: February 1, 2019. Deborah Jordan, Acting Regional Administrator, Region IX. [FR Doc. 2019–02349 Filed 2–13–19; 8:45 am] BILLING CODE 6560–50–P E:\FR\FM\14FEP1.SGM 14FEP1

Agencies

[Federal Register Volume 84, Number 31 (Thursday, February 14, 2019)]
[Proposed Rules]
[Pages 4029-4032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02349]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R09-OAR-2018-0831; FRL-9989-53-Region 9]


Finding of Failure To Attain and Reclassification of Pechanga 
Nonattainment Area for the 2008 Ozone National Ambient Air Quality 
Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
determine that the Pechanga Band of Luise[ntilde]o Mission Indians of 
the Pechanga Reservation nonattainment area (``Pechanga nonattainment 
area'' or ``Pechanga area'') failed to attain the 2008 national ambient 
air quality standards for ozone (``ozone NAAQS'' or ``ozone 
standards'') by the applicable attainment date. The effect of failing 
to attain by the attainment date is that the ``Moderate'' Pechanga 
nonattainment area will be reclassified by operation of law to 
``Serious'' upon the effective date of the final reclassification 
action. This proposed action, if finalized, would fulfill the EPA's 
statutory obligation to

[[Page 4030]]

determine whether ozone nonattainment areas attained the NAAQS by the 
attainment date.

DATES: Written comments must arrive on or before March 18, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2018-0831 at https://www.regulations.gov. For comments submitted at 
Regulations.gov, follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public 
comment policy, information about CBI or multimedia submissions, and 
general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Laura Lawrence, EPA Region IX, (415) 
972-3407, lawrence.laura@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to the EPA.

Table of Contents

I. Regulatory Context
    A. Ozone Standards
    B. Area Designations and Classifications
    C. Determinations of Attainment or Failure To Attain
    D. Reclassification
II. Proposed Determination and Rationale
    A. Pechanga Ozone Nonattainment Area and Attainment Deadline
    B. Determination of Failure To Attain
    C. Reclassification to Serious
III. Proposed Action and Request for Public Comment
IV. Statutory and Executive Order Reviews

I. Regulatory Context

A. Ozone Standards

    Ground-level ozone pollution is formed from the reaction of 
volatile organic compounds (VOCs) and oxides of nitrogen 
(NOX) in the presence of sunlight. These two pollutants, 
referred to as ozone precursors, are emitted by many types of sources, 
including on-and off-road motor vehicles and engines, power plants and 
industrial facilities, and smaller area sources such as lawn and garden 
equipment and paints.
    Scientific evidence indicates that adverse public health effects 
occur following exposure to elevated levels of ozone, particularly in 
children and adults with lung disease. Breathing air containing ozone 
can reduce lung function and inflame airways, which can increase 
respiratory symptoms and aggravate asthma or other lung diseases.\1\
---------------------------------------------------------------------------

    \1\ See ``Fact Sheet--2008 Final Revisions to the National 
Ambient Air Quality Standards for Ozone'' dated March 2008.
---------------------------------------------------------------------------

    Under section 109 of the Clean Air Act (CAA or ``Act''), the EPA 
promulgates NAAQS for pervasive air pollutants, such as ozone. The EPA 
has previously promulgated NAAQS for ozone in 1979 and 1997.\2\ In 
2008, the EPA revised and further strengthened the ozone NAAQS by 
setting the acceptable level of ozone in the ambient air at 0.075 parts 
per million (ppm) averaged over an 8-hour period.\3\ Although the EPA 
further tightened the 8-hour ozone NAAQS to 0.070 ppm in 2015, this 
proposed action relates to the 2008 ozone NAAQS.\4\
---------------------------------------------------------------------------

    \2\ The ozone NAAQS promulgated in 1979 was 0.12 parts per 
million (ppm) averaged over a 1-hour period. See 44 FR 8202 
(February 8, 1979). The ozone NAAQS promulgated in 1997 was 0.08 ppm 
averaged over an 8-hour period. See 62 FR 38856 (July 18, 1997).
    \3\ 73 FR 16436 (March 27, 2008). The 2008 ozone NAAQS are 
codified at 40 CFR 50.15.
    \4\ Information on the 2015 ozone NAAQS is available at 80 FR 
65292 (October 26, 2015).
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B. Area Designations and Classifications

    Following promulgation of a new or revised NAAQS, the EPA is 
required under CAA section 107(d) to designate areas throughout the 
country as attaining or not attaining the NAAQS, and the EPA designated 
all areas in the country for the 2008 ozone NAAQS in 2012.\5\ With 
respect to the 2008 ozone NAAQS, the EPA classifies nonattainment areas 
under CAA section 181 and 40 CFR 51.1102 according to the severity of 
the ozone pollution problem, with classifications ranging from Marginal 
to Extreme. Attainment deadlines are determined by the nonattainment 
area's classification in accordance with CAA section 181(a)(1) and 40 
CFR 51.1102. Nonattainment area classification also determines, in 
part, the emissions control requirements for ozone applicable to the 
area.
---------------------------------------------------------------------------

    \5\ 77 FR 30088 (May 21, 2012). The initial area designations 
for the 2008 ozone NAAQS were effective July 20, 2012.
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C. Determinations of Attainment or Failure To Attain

    Section 181(b)(2) of the CAA requires the EPA to determine whether 
areas designated nonattainment for ozone attained the standards by the 
applicable attainment date.\6\ Under EPA regulations at 40 CFR part 50, 
Appendix P, the 2008 ozone NAAQS is attained at a site when the 3-year 
average of the annual fourth highest daily maximum 8-hour average 
ambient air quality ozone concentration is less than or equal to 0.075 
ppm. This 3-year average is referred to as the ``design value.'' When 
the design value is less than or equal to 0.075 ppm at each ambient air 
quality monitoring site within the area, the area is deemed to be 
attaining the ozone NAAQS.
---------------------------------------------------------------------------

    \6\ In a recent rulemaking, the EPA proposed to make these 
determinations for most other areas in the country. See 83 FR 56781 
(November 14, 2018).
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    Because the design value is based on the three most recent calendar 
years of complete, quality-assured data, an area must attain the 
standard by the end of the full calendar year prior to the attainment 
date.
    The EPA's determination of attainment is based upon data that have 
been collected and quality-assured in accordance with 40 CFR part 58 
and recorded in the EPA's Air Quality System (AQS) database.\7\ Ambient 
air quality monitoring data for the 3-year period preceding the 
attainment date must meet the data completeness requirements in 
Appendix P.\8\ The completeness requirements are met for the 3-year 
period at a monitoring site if daily maximum 8-hour average 
concentrations of ozone are available for at least 90 percent of the 
days within the ozone monitoring season, on average, for the 3-year 
period, and no single year has less than 75 percent data completeness.
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    \7\ The EPA maintains the AQS, a database that contains ambient 
air pollution data collected by the EPA, state, local, and tribal 
air pollution control agencies. The AQS also contains meteorological 
data, descriptive information about each monitoring station 
(including its geographic location and its operator) and data 
quality assurance/quality control information. The AQS data are used 
to (1) assess air quality, (2) assist in attainment/nonattainment 
designations, (3) evaluate SIPs for nonattainment areas, (4) perform 
modeling for permit review analysis, and (5) prepare reports for 
Congress as mandated by the CAA. Access is through the website at 
https://www.epa.gov/aqs.
    \8\ 40 CFR part 50, Appendix P, section 2.3(b).
---------------------------------------------------------------------------

    To make the determination that an area attains the NAAQS, each 
monitor must have a valid design value meeting the standard.\9\ If one 
or more monitors

[[Page 4031]]

have a design value that exceeds the standard, the area does not attain 
the NAAQS.
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    \9\ Design values attaining the 2008 ozone NAAQS must also the 
meet minimum data completeness requirements specified in to 40 CFR 
part 50, Appendix P to be considered valid.
---------------------------------------------------------------------------

D. Reclassification

    In the event an area fails to attain the ozone NAAQS by the 
applicable attainment date, CAA section 181(b)(2)(A) requires the EPA 
to make the determination that the ozone nonattainment area failed to 
attain the ozone standard by the applicable attainment date, and 
requires the area to be reclassified by operation of law to the higher 
of either the next higher classification for the area, or the 
classification applicable to the area's design value as of the 
determination of failure to attain.

II. Proposed Determination and Rationale

A. Pechanga Ozone Nonattainment Area and Attainment Deadline

    The Pechanga Band of Luise[ntilde]o Mission Indians of the Pechanga 
Reservation (``Pechanga Tribe'') is a federally recognized tribe whose 
reservation (``Pechanga Reservation'') straddles the boundary between 
western Riverside and northern San Diego counties. The EPA designated 
the lands of the Pechanga Reservation as nonattainment for the 2008 
ozone standards on May 21, 2012. At the time of designation, the 
nonattainment area consisted of the entirety of the Pechanga 
Reservation.\10\
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    \10\ The Pechanga Tribe has since acquired additional lands that 
they have placed in trust; however, the nonattainment area 
boundaries established in 2012 for these standards are unchanged and 
do not include these new properties.
---------------------------------------------------------------------------

    At the time of designation, the Pechanga area was classified as a 
Moderate nonattainment area.\11\ Moderate areas were given a deadline 
of July 20, 2018, to attain the 2008 ozone NAAQS. As noted above, 
because the design value is based on the three most recent calendar 
years of complete, quality-assured data, an area must attain the 
standard by the end of the full calendar year prior to the attainment 
date. In this case, to determine whether an area classified as Moderate 
for the 2008 ozone standards attained the standards by the July 20, 
2018 attainment date, we rely on complete, quality-assured and 
certified ozone monitoring data from calendar years 2015, 2016, and 
2017.
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    \11\ 77 FR 30088, at 30109 (May 21, 2012).
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B. Determination of Failure To Attain

    We are proposing to determine that the Pechanga nonattainment area 
failed to attain the 2008 ozone standards by the July 20, 2018 
attainment date. We are proposing this determination on the basis of 
complete, quality-assured and certified data for 2015-2017 at the 
Temecula monitoring site (AQS ID 06-065-0016), which is located 
approximately 10 miles north of the Pechanga Reservation.\12\ The 
Temecula monitoring site is operated by the South Coast Air Quality 
Management District (SCAQMD). The Pechanga Tribe also operates an ozone 
monitoring site at the reservation and submits the data that it 
collects to AQS. However, the 2015-2017 design value from the Pechanga 
monitoring site is invalid because it does not meet the completeness 
requirements for the 2008 ozone standard.\13\ Therefore, our proposed 
determination that the Pechanga nonattainment area failed to attain is 
based on data from the Temecula monitoring site rather than data 
collected at the Pechanga monitoring site.
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    \12\ In accordance with 40 CFR 58, data-collecting agencies must 
certify annually that ambient concentration data and quality 
assurance data are completely submitted to AQS, and that the data 
are accurate to the best knowledge of the certifier, taking into 
consideration quality assurance findings. For certification for 
Temecula monitor data for calendar years 2015-2017, see 1) April 29, 
2016 letter from Laki Tisopulos, South Coast Air Quality Management 
District Assistant Deputy Executive Officer to Deborah Jordan, EPA 
Region IX Air Division Director; 2) April 28, 2017 letter from Jason 
C. Low, South Coast Air Quality Management District Assistant Deputy 
Executive Officer, to Alexis Strauss, EPA Region IX Acting Regional 
Administrator; and 3) April 27, 2018 letter from Jason C. Low, South 
Coast Air Quality Management District Assistant Deputy Executive 
Officer, to Alexis Strauss, EPA Region IX Acting Regional 
Administrator.
    \13\ AQS 2017 Design Value Report for Pechanga (AQS ID 06-065-
0009), December 17, 2018. The 2015-2017 DV for the Pechanga 
monitoring site failed to meet the 75% annual completeness 
requirement in 2015 (67%) and the 90% 3-year completeness 
requirement for 2015-2017 (85%) and, therefore, is invalid. 40 CFR 
part 50, Appendix P, section 2.3(b).
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    The EPA's ``Policy for Establishing Separate Air Quality 
Designations for Areas in Indian Country'' (``Tribal Designation 
Policy'') anticipates the use of data from proximate state regulatory 
monitors to characterize air quality on tribal lands when air 
monitoring data are unavailable on the reservation.\14\ In a previous 
rulemaking, the EPA relied on 8-hour ozone data from the Temecula 
monitor to redesignate the Pechanga nonattainment area to attainment 
for the 1997 ozone NAAQS based on our conclusion that the data from the 
Temecula monitor were representative of ozone concentrations in the 
Pechanga nonattainment area.\15\ This conclusion was based on the 
following considerations: ozone pollution is regional in nature; the 
Temecula monitor is located just 10 miles from the Pechanga area; there 
are no significant topographic barriers between the monitor and the 
reservation; and available data from the Temecula and Pechanga monitors 
tracked very closely over the 2012 to 2014 period.\16\
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    \14\ ``Policy for Establishing Separate Air Quality Designations 
for Areas of Indian Country,'' a memorandum from Stephen D. Page, 
Director, EPA Office of Air Quality Planning and Standards, to EPA 
Regional Air Directors, Regions I-X, dated December 20, 2011. A copy 
of the Tribal Designation Policy is at https://www.epa.gov/ozonedesignations/guidance.htm. See page 6 of the Tribal Designation 
Policy.
    \15\ 80 FR 18120 (April 3, 2015).
    \16\ 80 FR 18120, at 18121-18122 (April 3, 2015) (Response to 
SCAQMD Comment #1).
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    The ozone data collected at SCAQMD's Temecula monitoring site is 
complete and, as discussed above, representative of ozone 
concentrations at the reservation. The 2017 design value calculated 
from 2015-2017 data from the Temecula monitor is 0.080 ppm, which 
exceeds the 2008 ozone standard level of 0.075 ppm.\17\
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    \17\ AQS 2017 Design Value Report for Temecula (AQS ID 06-065-
0016), report date December 12, 2018.
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C. Reclassification to Serious

    If we finalize the finding of failure to attain as proposed, the 
effect of this finding would be to reclassify the Pechanga 
nonattainment area by operation of law to Serious, the next higher 
classification, as provided under CAA section 181(b)(2)(A)(i). If 
reclassified, the Pechanga area would be required to attain the 
standard ``as expeditiously as practicable'' but no later than 9 years 
after the initial designation as nonattainment, which in this case 
would be no later than July 20, 2021. After reclassification to 
Serious, if the area attains the 2008 ozone NAAQS prior to the Serious-
area attainment date, the area may seek a clean data determination or a 
redesignation to attainment.
    As noted above, control and permitting requirements for 
nonattainment areas are determined, in part, by their classification, 
and a reclassification from Moderate to Serious imposes additional 
control requirements. Under the CAA and the Tribal Authority Rule 
(TAR),\18\ tribes may, but are not required to, submit implementation 
plans to the EPA for approval. Under the TAR, the EPA has authority to 
implement such plan provisions as are necessary or appropriate to 
protect air quality where tribes do not do so. Accordingly, the EPA 
implements the tribal major source nonattainment new source review

[[Page 4032]]

(NSR) \19\ and the title V operating permit \20\ programs in areas 
without delegated programs. If this proposed reclassification is 
finalized, the Pechanga nonattainment area will be subject to the 
Serious area provisions of the tribal major source nonattainment NSR 
regulations and title V regulations cited above, but it will not be 
required to submit an implementation plan to address any part D or 
title V requirements. The Pechanga area is currently subject to 
Moderate area major source thresholds of 100 tons per year (tpy) for 
ozone precursors. If this proposal is finalized, the Pechanga area 
major source thresholds will be lowered to 50 tpy for ozone precursors. 
The NSR control requirements for minor sources under the tribal minor 
NSR regulations will remain the same.\21\
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    \18\ CAA section 301(d) and 40 CFR part 49.
    \19\ 40 CFR 49.166 through 49.173.
    \20\ 40 CFR part 71.
    \21\ 40 CFR 49.151 through 49.164.
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III. Proposed Action and Request for Public Comment

    The EPA is proposing to determine that the Pechanga nonattainment 
area failed to attain the 2008 ozone NAAQS by its applicable Moderate 
area attainment date of July 20, 2018, based on complete, quality-
assured and certified data from the Temecula monitoring site for years 
2015-2017. The effect of this determination, if finalized, will be to 
reclassify the Pechanga nonattainment area from Moderate to Serious for 
the 2008 ozone NAAQS. The EPA is soliciting comments on our proposed 
action and rationale over the next 30 days.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This proposed action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This proposed action is not expected to be an Executive Order 13771 
regulatory action because this action is not significant under 
Executive Order 12866.

C. Paperwork Reduction Act (PRA)

    This proposed rule does not impose an information collection burden 
under the provisions of the PRA. As noted above, under the CAA and TAR, 
tribes may, but are not required to, submit implementation plans to the 
EPA for approval to address the more stringent requirements that apply 
to Serious ozone nonattainment areas relative to Moderate ozone 
nonattainment areas.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
proposed action will not impose any requirements on small entities. The 
proposed determination of failure to attain the 2008 ozone NAAQS (and 
resulting reclassification) does not in and of itself create any new 
requirements beyond what is mandated by the CAA. Instead, this proposed 
rulemaking only makes factual determinations, and does not directly 
regulate any entities.

E. Unfunded Mandates Reform Act (UMRA)

    This proposed action does not contain any unfunded mandate as 
described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or 
uniquely affect small governments. This proposed action imposes no 
enforceable duty on any state, local or tribal governments or the 
private sector.

F. Executive Order 13132: Federalism

    This proposed action does not have federalism implications. It will 
not have substantial direct effects on the states, tribes, or the 
relationship between the national government and the states and tribes, 
or on the distribution of power and responsibilities among the various 
levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This proposed action has tribal implications. However, it will 
neither impose substantial direct compliance costs on federally 
recognized tribal governments, nor preempt tribal law. EPA staff have 
discussed this proposed rule with environmental staff of the Pechanga 
Tribe. Additionally, an opportunity for formal government-to-government 
consultation is being extended to Pechanga tribal officials in 
conjunction with this rulemaking. This outreach and consultation is 
being conducted according to the ``EPA Policy on Consultation and 
Coordination with Indian Tribes.'' \22\
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    \22\ The document ``EPA Policy on Consultation and Coordination 
with Indian Tribes'' is available at https://www.epa.gov/tribal/forms/consultation-and-coordination-tribes.
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H. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This proposed action is not 
subject to Executive Order 13045 because it does not concern an 
environmental health risk or safety risk.

I. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed action is not subject to Executive Order 13211, 
because it is not a significant regulatory action under Executive Order 
12866.

J. National Technology Transfer Advancement Act (NTTAA)

    This proposed rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this proposed action will not have 
disproportionately high or adverse human health or environmental 
effects on minority, low income, or indigenous populations. The purpose 
of this rule is to make the determination whether a certain area 
attained the 2008 ozone NAAQS by the attainment date, which is required 
by the CAA for purposes of implementing the 2008 ozone NAAQS. As such, 
this action does not directly affect the level of protection provided 
for human health or the environment.

List of Subjects in 40 CFR Part 81

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Designations and classifications, 
Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and 
recordkeeping requirements, and Volatile organic compounds.

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

    Dated: February 1, 2019.
Deborah Jordan,
Acting Regional Administrator, Region IX.
[FR Doc. 2019-02349 Filed 2-13-19; 8:45 am]
 BILLING CODE 6560-50-P
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