[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]
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