[Federal Register Volume 76, Number 115 (Wednesday, June 15, 2011)]
[Rules and Regulations]
[Pages 34872-34876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14480]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0046; FRL-9318-1]


Approval and Promulgation of Implementation Plans; State of 
California; Regional Haze and Interstate Transport

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Under the Clean Air Act (``CAA'' or ``Act''), EPA is approving 
a State Implementation Plan (``SIP'') revision submitted by the State 
of California on November 16, 2007, for the purpose of addressing the 
interstate transport provisions of CAA section 110(a)(2)(D)(i)(I) for 
the 1997 8-hour ozone National Ambient Air Quality Standards (``NAAQS'' 
or ``standards'') and the 1997 fine particulate matter 
(``PM2.5'') NAAQS. Section 110(a)(2)(D)(i) of the CAA 
requires that each State have adequate provisions to prohibit air 
emissions from adversely affecting air quality in other States through 
interstate transport. Specifically, EPA is finalizing approval of 
California's SIP revision for the 1997 8-hour ozone and 1997 
PM2.5 NAAQS as meeting the requirements of CAA section 
110(a)(2)(D)(i)(I) to prohibit emissions that will contribute 
significantly to nonattainment of these standards in any other State 
and to prohibit emissions that will interfere with maintenance of these 
standards by any other State. EPA proposed to approve these SIP 
revisions on March 17, 2011 (76 FR 14616).

DATES: Effective Date: This rule is effective on July 15, 2011.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2011-0046 for 
this action. The index to the docket is available electronically at 
http://www.regulations.gov and in hard copy at EPA Region IX, 75 
Hawthorne Street, San Francisco, California. While all documents in the 
docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available in either location (e.g., 
confidential business information). To inspect the hard copy materials, 
please schedule an appointment during normal business hours with the 
contact listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Rory Mays, Air Planning Office (AIR-
2), U.S. Environmental Protection Agency, Region IX, (415) 972-3227, 
[email protected].

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

Table of Contents

I. Background
II. Proposed Action
III. Public Comments and EPA Responses
IV. Final Action
V. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997, EPA promulgated new standards for 8-hour ozone 
(62 FR 38856) and PM2.5 (62 FR 38652). We are taking this 
action in response to the promulgation of these standards (the 1997 8-
hour ozone NAAQS and 1997 PM2.5 NAAQS) to address the 
requirements of CAA section 110(a)(2)(D)(i)(I). This action does not 
address the requirements of the 2006 PM2.5 NAAQS or the 2008 
8-hour ozone NAAQS; those standards will be addressed in future 
actions.
    Section 110(a)(1) of the CAA requires States to submit SIPs to 
address a new or revised NAAQS within three years after promulgation of 
such standards, or within such shorter period as the EPA Administrator 
may prescribe. Section 110(a)(2) lists the elements that such new SIPs 
must address, as applicable, including section 110(a)(2)(D)(i), which 
pertains to interstate transport of certain emissions. On August 15, 
2006, EPA issued a guidance memorandum that

[[Page 34873]]

provides recommendations to States for making submissions to meet the 
requirements of section 110(a)(2)(D)(i) for the 1997 8-hour ozone and 
PM2.5 standards (2006 Guidance).\1\
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    \1\ Memorandum from William T. Harnett entitled ``Guidance for 
State Implementation Plan (SIP) Submission to Meet Current 
Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-hour 
ozone and PM2.5 National Ambient Air Quality Standards,'' 
August 15, 2006.
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    On November 16, 2007, the California Air Resources Board (CARB) 
submitted the ``Proposed State Strategy for California's 2007 State 
Implementation Plan'' to attain the 1997 8-hour ozone and 
PM2.5 NAAQS (2007 State Strategy).\2\ Appendix C of the 2007 
State Strategy, as modified by Attachment A,\3\ contains California's 
SIP revision to address the Transport SIP requirements of CAA section 
110(a)(2)(D)(i) for the 1997 8-hour ozone and PM2.5 NAAQS 
(2007 Transport SIP). The State based its submittal on EPA's 2006 
Guidance. As explained in the 2006 Guidance, the ``good neighbor'' 
provisions in section 110(a)(2)(D)(i) require each State to submit a 
SIP that contains adequate provisions to prohibit emissions from 
sources within that State from adversely affecting another State in the 
ways contemplated in the statute. Section 110(a)(2)(D)(i) identifies 
four distinct elements related to the evaluation of impacts of 
interstate transport of air pollutants. In this rulemaking EPA is 
addressing the first two elements: (1) Significant contribution to 
nonattainment of these NAAQS in any other State, and (2) interference 
with maintenance of these NAAQS by any other State.
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    \2\ See transmittal letter dated November 16, 2007, from James 
N. Goldstene, Executive Officer, CARB, to Wayne Nastri, Regional 
Administrator, EPA Region 9, with enclosures, and CARB Resolution 
No. 07-28 (September 27, 2007).
    \3\ See ``Technical and Clarifying Modifications to April 26, 
2007 Revised Draft Air Resources Board's Proposed State Strategy for 
California's 2007 State Implementation Plan and May 7, 2007 Revised 
Draft Appendices A through G,'' included as Attachment A to CARB's 
Board Resolution 07-28 (September 27, 2007).
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II. Proposed Action

    On March 17, 2011, EPA proposed to find that the California SIP is 
adequate to prevent significant contribution to nonattainment of, and 
interference with maintenance of, the 1997 8-hour ozone NAAQS and the 
1997 PM2.5 NAAQS in any other State, as required by CAA 
section 110(a)(2)(D)(i)(I). See 76 FR 14616. Our proposed action did 
not address the remaining two elements of CAA section 110(a)(2)(D)(i) 
regarding interference with measures required to prevent significant 
deterioration of air quality or to protect visibility in another State. 
We intend to evaluate and act upon these remaining elements of 
California's SIP submittal in separate actions, subject to notice and 
comment and publication in the Federal Register.
    For a more detailed discussion of the 2007 Transport SIP, the 
requirements of CAA section 110(a)(2)(D)(i), and the rationale for our 
proposed action, please see our March 17, 2011 proposed rule (76 FR 
14616) and related Technical Support Document, both of which can be 
found in the docket for today's action.

III. Public Comments and EPA Responses

    The publication of EPA's proposed rule on March 17, 2011 (76 FR 
14616) started a 30-day public comment period that ended on April 18, 
2011. During this period, we received a comment letter from the Morongo 
Band of Mission Indians (Morongo) and a comment letter from the 
Pechanga Band of Luise[ntilde]o Mission Indians (Pechanga). We have 
summarized the comments from the Morongo and Pechanga (collectively the 
``Tribes'' or ``commenters'') and provided our responses below.
    Comment #1: The Tribes assert that neither California nor EPA 
analyzed potential impacts of transported ozone and PM2.5 
air pollution on their respective reservations or on other Indian 
country immediately downwind of California nonattainment areas, and 
that EPA did not acknowledge their existence as affected, downwind 
governments. The Tribes assert that they are each ``comparable to a 
state'' with respect to the effect of upwind emission sources in 
California, which contribute overwhelmingly to nonattainment in their 
reservations, and that they are both in the process of seeking 
``Treatment in the Same Manner as a State (TAS)'' under the CAA. The 
Tribes also assert that they have either received TAS or completed the 
application process for TAS under the Clean Water Act. Finally, the 
Tribes claim that, if EPA were to require that the California SIP 
``treat the Tribe[s] equitably'' in addressing the provisions of CAA 
section 110(a)(2)(D)(i)(I), then additional control measures for the 
South Coast Air Basin would be needed to prohibit emissions that would 
contribute significantly to nonattainment of the 1997 8-hour ozone and 
1997 PM2.5 NAAQS or interfere with maintenance of these 
standards in their respective reservations, analogous to the 
prohibition against having such effect in any other State.
    Response #1: Section 110(a)(2)(D)(i)(I) of the CAA requires that 
each SIP contain adequate provisions to prohibit any source or other 
type of emissions activity within the State from ``contribut[ing] 
significantly to nonattainment'' of the NAAQS or ``interfer[ing] with 
maintenance'' of the NAAQS in ``any other State.'' \4\ The commenters 
provide no specific factual or analytical support for their claim that 
emissions from California sources contribute significantly to 
nonattainment or interfere with maintenance of the 1997 8-hour ozone or 
1997 PM2.5 NAAQS in their respective reservations or other 
Indian country, nor do they provide any support for their assertion 
that evaluation of such impacts under CAA section 110(a)(2)(D)(i) for 
these standards would have resulted in a requirement for California to 
adopt additional control measures for sources in the South Coast Air 
Basin.\5\ Nevertheless, in response to these comments, EPA has 
considered whether emissions from California sources could have the 
prohibited adverse impacts in the Morongo or Pechanga reservations in 
accordance with the methodologies we use to evaluate SIP submittals for 
these standards under section 110(a)(2)(D)(i) with respect to transport 
impacts on states. Based on this evaluation, we conclude that 
California's SIP currently contains adequate provisions to prohibit 
such impacts for the 1997 8-hour ozone and 1997 PM2.5 NAAQS.
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    \4\ The term ``State'' is defined in the Clean Air Act as ``a 
State, the District of Columbia, the Commonwealth of Puerto Rico, 
the Virgin Islands, Guam, and American Samoa and includes the 
Commonwealth of the Northern Mariana Islands.'' CAA section 302(d).
    \5\ Both Tribes acknowledge that they do not currently have TAS 
status under the CAA. As described below, however, EPA has evaluated 
the sufficiency of the State's SIP submission in light of potential 
impacts on the Tribes' reservations from sources located in 
surrounding State areas. Thus, we do not need to address in this 
action the question whether CAA section 110(a)(2)(D)(i)(I) requires 
that a SIP address impacts on Indian country geographically located 
within the submitting State or how the TAS status of the 
potentially-affected Tribe(s) may be relevant to that issue. 
Similarly, we also do not need to address the Tribes' comment 
regarding TAS under the Clean Water Act as that does not affect the 
analysis of CAA requirements EPA conducted for this action.
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    We began our analysis by reviewing the ozone and PM2.5 
air quality monitors that we identified as ``receptor'' locations for 
purposes of evaluating SIPs submitted to address the requirements of 
CAA section 110(a)(2)(D)(i) for the 1997 8-hour ozone or 1997 
PM2.5 NAAQS. As described in our proposed rule (76 FR 
14616), EPA evaluated data from existing monitors over three 
overlapping 3-year periods (i.e., 2003-2005, 2004-2006, and 2005-2007), 
as well as air quality modeling data, to

[[Page 34874]]

determine which areas are predicted to be violating these NAAQS in 
2012, and which areas are predicted potentially to have difficulty 
maintaining attainment as of that date. 76 FR 14616 at 14618. We 
identified as ``nonattainment receptors'' those monitoring sites that 
are projected to be violating the NAAQS in 2012, based on the average 
of these three overlapping periods. Id. Separately, we identified as 
``maintenance receptors'' those monitoring sites that were violating 
the NAAQS based on the highest single three-year period during 2003-
2007, but not over the average of the three periods. Id. at 14619, 
14623. We described these ``maintenance receptors'' as those monitoring 
sites that remain at risk of slipping into nonattainment in 2012 if 
there are adverse variations in meteorology or emissions. Id.
    These methodologies for identifying ``nonattainment receptors'' and 
``maintenance receptors'' take into account historic variability of 
emissions at specific monitoring sites to analyze whether or not the 
relevant areas are expected to be violating or attaining the NAAQS in 
2012. In both the 1998 NOX SIP Call \6\ and the 2005 Clean 
Air Interstate Rule,\7\ EPA evaluated significant contribution to 
nonattainment as measured or predicted at monitors in a comparable 
fashion. EPA believes that this approach to evaluating significant 
contribution is correct under CAA section 110(a)(2)(D), and EPA's 
general approach to this threshold determination has not been disturbed 
by the courts.\8\ As explained in the proposal, EPA is addressing 
interference with maintenance separately in order to address concerns 
that the Agency had not previously given sufficient independent meaning 
to that requirement.
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    \6\ See ``Finding of Significant Contribution and Rulemaking for 
Certain States in the Ozone Transport Assessment Group Region for 
Purposes of Reducing Regional Transport of Ozone,'' 63 FR 57356, 
57371-57372 (October 27, 1998) (``NOX SIP Call'').
    \7\ See ``Rule to Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162 at 25167 (May 12, 2005) (``CAIR'').
    \8\ Michigan v. U.S. EPA, 213 F.3d 663, 674-681 (DC Cir. 2000); 
North Carolina v. EPA, 531 F.3d 896, 913-916 (DC Cir. 2008) 
(upholding EPA approach to determining threshold despite remanding 
other aspects of CAIR).
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    Consistent with these methodologies, to determine whether emissions 
from California sources contribute significantly to nonattainment or 
interfere with maintenance of the 1997 8-hour ozone or 1997 
PM2.5 NAAQS in any other State, EPA evaluated air quality 
monitoring data from the eastern portion of the U.S. under 
consideration in EPA's Transport Rule Proposal (75 FR 45210) without 
regard to the jurisdictional status of different areas within each 
State. See 76 FR 14616 at 14618-14619. EPA conducted a similar analysis 
of air quality data for the western U.S. not covered by the Transport 
Rule Proposal. Id. This analysis for western States is embodied in the 
``Timin Memo.'' 9 10
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    \9\ See Memorandum from Brian Timin, EPA Office of Air Quality 
Planning and Standards, ``Documentation of Future Year Ozone and 
Annual PM2.5 Design Values for Monitors in Western 
States,'' August 23, 2010 (Timin Memo).
    \10\ In addition to relying upon these methodologies for 
identifying ``nonattainment receptors'' and ``maintenance 
receptors'' based on 2003-2007 monitoring data, EPA reviewed more 
recent, preliminary monitoring data for the 2007-2009 period 
available in EPA's Air Quality System (AQS) database from all ozone 
and PM2.5 monitoring sites in Oregon, Nevada, and Arizona 
and found no violations of the 1997 8-hour ozone or 1997 
PM2.5 standards in these adjacent States during this 
period. See 76 FR 14616 at 14621, 14623, and 14625. These data 
further support our findings but are not a necessary basis for our 
conclusion that emissions from California sources do not have the 
prohibited adverse impacts on any other State for the 1997 8-hour 
ozone or 1997 PM2.5 NAAQS.
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    Although by its terms CAA section 110(a)(2)(D)(i)(I) explicitly 
addresses impacts on States, in response to the commenters' concerns, 
EPA reviewed air quality monitoring data from monitors located on the 
Morongo Reservation and on the Pechanga Reservation. For both 
reservations, EPA found that ozone and PM2.5 air quality 
monitoring data is not available for the full 2003-2007 period, the 
time period that provided the basis for our evaluation methodology 
under CAA section 110(a)(2)(D)(i) for the 1997 8-hour ozone and 1997 
PM2.5 NAAQS.\11\ Thus, neither reservation has a monitor for 
ozone or for PM2.5 that EPA projected to be violating either 
NAAQS in 2012, based on the average of the three overlapping periods 
that EPA evaluated for these purposes (i.e., 2003-2005, 2004-2006, and 
2005-2007). Additionally, neither reservation has a monitor that EPA 
projected to remain at risk of slipping into nonattainment of either 
NAAQS in 2012, based on the highest single three-year period during 
2003-2007. Id. EPA therefore did not identify any ``nonattainment 
receptors'' or ``maintenance receptors'' for these standards on either 
reservation.\12\ \13\
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    \11\ For the Morongo Reservation, EPA's AQS database contains 
ozone monitoring data starting in 2006. See U.S. EPA AQS, Quick Look 
Report for 8-hour ozone, Site ID TT-582-1016 (2003-2011). For the 
Pechanga Reservation, EPA's AQS database contains ozone monitoring 
data starting in 2008 and PM2.5 monitoring data starting 
in 2010. See U.S. EPA AQS, Quick Look Report for 8-hour ozone and 
PM2.5, Site ID TT-586-0009 (2003-2011).
    \12\ See Timin Memo at Appendix A and Appendix B.
    \13\ We note that data from the ozone monitor on the Morongo 
Reservation during the more recent 2006-2011 period appear to 
indicate that the area is violating the 1997 8-hour ozone NAAQS (see 
U.S. EPA AQS, Quick Look Report for 8-hour ozone, Site ID TT-582-
1016 (2003-2011)). However, EPA has not yet verified the validity of 
these data for regulatory purposes in accordance with section 2.5 of 
40 CFR part 58, Appendix A. In the event that EPA confirms this data 
is valid and this monitor continues to show violations of the 1997 
8-hour ozone NAAQS in the future, EPA may evaluate whether 
additional actions are appropriate or necessary under the CAA to 
bring this area into attainment, based upon subsequently available 
data and analyses.
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    Because neither the Morongo Reservation nor the Pechanga 
Reservation contains any ``nonattainment receptor'' or ``maintenance 
receptor'' appropriate for purposes of evaluating California's 2007 
Transport SIP in accordance with the requirements of CAA section 
110(a)(2)(D)(i)(I) and the analytical approach that EPA is using to 
evaluate potential transport impacts between states, we do not have a 
basis for concluding that emissions from California sources 
``contribute significantly to nonattainment'' or ``interfere with 
maintenance'' of the 1997 8-hour ozone or 1997 PM2.5 NAAQS 
in either reservation at this time. The Tribes' comments provide no 
specific information to support such a conclusion.
    Furthermore, we note that the Morongo Reservation and most of the 
Pechanga Reservation are located within the geographic borders of the 
Los Angeles-South Coast Air Basin in southern California, which is 
currently designated and classified as an ``extreme'' nonattainment 
area for the 1997 8-hour ozone NAAQS. See 40 CFR 81.305; see also 75 FR 
24409 (May 5, 2010) (reclassifying South Coast Air Basin from ``severe-
17'' to ``extreme'' nonattainment for 8-hour ozone NAAQS but deferring 
reclassification of Indian country pertaining to Morongo and 
Pechanga).\14\ As such, California is already subject to the most 
stringent air quality planning and control requirements for ozone 
nonattainment areas under subpart 2 of part D, title I of the CAA. For 
example, ``extreme'' ozone nonattainment areas are subject to the most 
stringent New Source Review regulatory threshold and offset ratio (CAA 
sections 182(e), 182(f)) and must require that certain electric utility 
and

[[Page 34875]]

industrial and commercial boilers either primarily burn low-polluting 
fuels or use advanced control technology to reduce emissions of 
NOX (CAA section 182(e)(3)).
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    \14\ The entire Los Angeles-South Coast Air Basin, including 
Indian country located within its borders, is also designated and 
classified as ``extreme'' nonattainment for the 1-hour ozone NAAQS. 
40 CFR 81.305.
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    The Los Angeles-South Coast Air Basin is also designated as 
nonattainment for the 1997 PM2.5 NAAQS and, therefore, 
subject to stringent air quality planning and control requirements for 
PM2.5 nonattainment areas under subpart 1 of part D, title I 
of the CAA. For example, CAA section 172(c)(1) requires that California 
adopt and implement all reasonably available control measures 
(including, at a minimum, reasonably available control technology for 
stationary sources) that will provide for attainment of the 
PM2.5 NAAQS in this area as expeditiously as practicable. 
See 40 CFR 51.1010. EPA is currently evaluating the nonattainment plans 
for the Los Angeles-South Coast Air Basin submitted by the State of 
California and the South Coast Air Quality Management District to meet 
these requirements of part D, title I of the CAA for the 1997 8-hour 
ozone NAAQS and the 1997 PM2.5 NAAQS.
    Although the fact that areas adjacent to the Morongo Reservation 
and Pechanga Reservation are subject to stringent planning and control 
requirements does not eliminate the possibility of pollution transport 
from these areas, the stringency of the control requirements in this 
particular geographic area would be an important element of EPA's 
analysis under CAA section 110(a)(2)(D)(i)(I). EPA evaluates 
``significant contribution to nonattainment'' and ``interference with 
maintenance'' under section 110(a)(2)(D)(i)(I) by considering not only 
the potential for pollution transport and the amount of such transport 
if it exists, but also the level and cost of control in an upwind area 
that would be necessary to prohibit such transport to the downwind 
area. See Transport Rule Proposal, 75 FR 45210 at 45273-45274 (August 
2, 2010) (citing North Carolina v. EPA, 531 F.3d 896 at 908, 917-920 
(DC Cir. 2008), in which the court confirmed that EPA may use cost of 
control as a factor in evaluating interstate transport). Thus, a 
technical finding that pollutants from an upwind area are transported 
to a downwind area does not, in itself, constitute a finding of 
``significant contribution to nonattainment'' or ``interference with 
maintenance'' for regulatory purposes under section 110(a)(2)(D)(i)(I) 
of the CAA. Given these considerations, even if we were to conclude 
that emissions from California sources adversely impact air quality at 
monitors suitable for treatment as nonattainment receptors or 
maintenance receptors in the Pechanga or Morongo Reservations, section 
110(a)(2)(D)(i)(I) of the CAA would not necessarily require that 
California adopt additional control measures to address such pollution 
impacts. We could not disapprove California's SIP submission without 
having completed that analysis and concluded that the state needed to 
impose additional controls in order to eliminate significant 
contribution or prevent interference with maintenance, which is a 
determination which is partially dependent upon the cost of control.
    In sum, although by its terms section 110(a)(2)(D)(i)(I) explicitly 
addresses States, in response to these specific comments from Morongo 
and Pechanga, we have conducted a preliminary evaluation of potential 
impacts on the Tribes' reservations based on our current methodology 
for evaluating SIPs submitted to address the requirements of CAA 
section 110(a)(2)(D)(i)(I) for the 1997 8-hour ozone and 1997 
PM2.5 NAAQS. Based on this evaluation and available air 
quality monitoring data, we have determined that California's SIP 
contains provisions adequate to satisfy the requirements of CAA section 
110(a)(2)(D)(i)(I) for these NAAQS. This determination does not, 
however, apply to California's obligations to address interstate 
transport of pollution under CAA section 110(a)(2)(D)(i)(I) for other 
NAAQS, which EPA intends to evaluate in separate actions, in accordance 
with applicable requirements and available air quality monitoring data, 
as appropriate. Moreover, if subsequent facts or analyses indicate that 
further action is necessary in this area to address nonattainment 
throughout the South Coast Air Basin, EPA can act at a later time after 
the initial section 110(a)(2)(D) submissions to call for revisions of 
the SIP to provide for additional emissions controls if such action is 
warranted. EPA recognizes the commenters' concerns about the impacts of 
air pollutant emissions throughout the South Coast Air Basin and is 
committed to working with the Tribes and the State to address these air 
quality concerns.
    Comment #2: The Tribes assert that EPA failed to consult with them 
regarding potential impacts on their reservations or other Federally 
recognized tribal lands immediately downwind of California 
nonattainment areas, referencing EPA's ``Proposed Final Policy on 
Consultation and Coordination With Indian Tribes,'' 75 FR 78198 
(December 15, 2010) in support of this comment. The Tribes assert that 
this failure to consult or to consider the Tribes as ``affected 
`state[s]' subject to overwhelming transport emissions from 
California'' is a major flaw in EPA's proposed rulemaking.
    Response #2: EPA endeavors to consult with Federally recognized 
tribal governments when Agency actions and decisions may have ``tribal 
implications'' or affect tribal interests, pursuant to long-standing 
EPA policy on consultation and coordination with Indian Tribes. See 
``EPA Policy for the Administration of Environmental Programs on Indian 
Reservations'' (November 8, 1984); Executive Order 13175, 
``Consultation and Coordination With Indian Tribal Governments,'' 65 FR 
67249 (November 9, 2000); ``EPA Policy on Consultation and Coordination 
with Indian Tribes'' (May 4, 2011).
    Because the California SIP is not approved to apply in Indian 
country located in the State, this action has no regulatory 
consequences for emission sources in Indian country and will not impose 
substantial direct costs on tribal governments or preempt tribal law. 
We note, however, that EPA is currently consulting with both Morongo 
and Pechanga in response to their requests 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. See 75 FR 24409, 24411 (May 5, 
2010) (deferring reclassification of the Morongo and Pechanga 
Reservations within the South Coast Air Basin pending EPA's final 
decisions on the Tribes' boundary change requests). EPA has also 
initiated a process to consult with interested Indian Tribes on issues 
related to the Transport Rule Proposal (75 FR 45210, August 2, 2010) 
and will conclude this consultation before making final decisions on 
those issues. See 76 FR 1109 at 1118 (January 7, 2011) (requesting 
comment on options for allocating allowances to covered units that 
might in the future be constructed in Indian country located within the 
Transport Rule region).
    Due to a court-ordered deadline to take final action on 
California's 2007 Transport SIP by May 10, 2011,\15\ we are proceeding 
with this rulemaking action at this time. We encourage both Tribes, 
however, to participate in other processes that are already underway to 
address their concerns regarding cross-boundary air pollution impacts.
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    \15\ See WildEarth Guardians v. U.S. EPA (Case No. 4:09-CV-
02453-CW), Consent Decree dated November 10, 2009.

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[[Page 34876]]

    As to the Tribes' assertion that EPA's failure to consider them 
affected ``States'' subject to overwhelming transport of emissions from 
California is a major flaw in our proposed rule, we disagree for the 
reasons discussed above in Response 1.

IV. Final Action

    Under CAA section 110(k)(3), EPA is fully approving the 2007 
Transport SIP submitted by CARB on November 17, 2007, as adequate to 
prohibit emissions from California sources that will contribute 
significantly to nonattainment of the 1997 8-hour ozone or 1997 
PM2.5 NAAQS in any other State, as required by CAA section 
110(a)(2)(D)(i)(I). EPA is also approving the 2007 Transport SIP as 
adequate to prohibit emissions from California sources that will 
interfere with maintenance of these NAAQS by any other State, as 
required by section 110(a)(2)(D)(i)(I). Accordingly, we find that the 
California SIP contains provisions adequate to prevent significant 
contribution to nonattainment of, and interference with maintenance of, 
these NAAQS.
    EPA will address in separate actions, subject to notice and comment 
and publication in the Federal Register, the remaining two elements of 
CAA section 110(a)(2)(D)(i) regarding interference with measures 
required to prevent significant deterioration of air quality or to 
protect visibility in any other State.

V. Statutory and Executive 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 final 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 
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 August 15, 2011. 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 CAA section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Air pollution control, Environmental protection, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

     Dated: May 10, 2011.
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]

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.220 is amended by adding paragraph (c)(386)(ii)(A)(3) to 
read as follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (386) * * *
    (ii) * * *
    (A) * * *
    (3) 2007 Transport SIP at pages 19-20 (Attachment A) (``Evaluation 
of Significant Contribution to Nonattainment or Interference with 
Maintenance of Attainment Standards in Another State'').
* * * * *

0
3. Section 52.283 is amended by adding paragraph (a)(2) to read as 
follows:


Sec.  52.283  Interstate Transport.

    (a) * * *
    (2) The requirements of CAA section 110(a)(2)(D)(i)(I) regarding 
significant contribution to nonattainment of the 1997 standards in any 
other State and interference with maintenance of the 1997 standards by 
any other State.
* * * * *
[FR Doc. 2011-14480 Filed 6-14-11; 8:45 am]
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