[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, [email protected].

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

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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.
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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.
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    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

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(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