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					                                                  43654                 Federal Register / Vol. 74, No. 165 / Thursday, August 27, 2009 / Proposed Rules

                                                     Instructions: Direct your comments to                document, EPA inadvertently omitted a                   In addition, this correction to the
                                                  Docket ID No. EPA–R03–OAR–2009–                         partial county that is part of the West               proposed determination that the West
                                                  0547. EPA’s policy is that all comments                 Virginia portion of the Parkersburg-                  Virginia portions of the Hagerstown-
                                                  received will be included in the public                 Marietta WV–OH nonattainment area.                    Martinsburg, Parkersburg-Marietta, and
                                                  docket without change, and may be                       This action corrects the omission of the              Wheeling nonattainment areas have
                                                  made available online at                                Grant Tax District in Pleasants County                clean data for the 1997 PM2.5 standard
                                                  www.regulations.gov, including any                      as part of the West Virginia portion of               does not have tribal implications as
                                                  personal information provided, unless                   the nonattainment area.                               specified by Executive Order 13175 (65
                                                  the comment includes information                                                                              FR 67249, November 9, 2000), because
                                                                                                          Statutory and Executive Order Reviews                 the SIP is not approved to apply in
                                                  claimed to be Confidential Business
                                                  Information (CBI) or other information                     Under the Clean Air Act, the                       Indian country located in the state, and
                                                  whose disclosure is restricted by statute.              Administrator is required to approve a                EPA notes that it will not impose
                                                  Do not submit information that you                      SIP submission that complies with the                 substantial direct costs on tribal
                                                  consider to be CBI or otherwise                         provisions of the Act and applicable                  governments or preempt tribal law.
                                                  protected through www.regulations.gov                   Federal regulations. 42 U.S.C. 7410(k);
                                                                                                                                                                Correction
                                                  or e-mail. The www.regulations.gov Web                  40 CFR 52.02(a). Thus, in reviewing SIP
                                                  site is an ‘‘anonymous access’’ system,                 submissions, EPA’s role is to approve                   In rule document E9–18393, on page
                                                  which means EPA will not know your                      state choices, provided that they meet                38154, in the issue of July 31, 2009, the
                                                  identity or contact information unless                  the criteria of the Clean Air Act.                    second sentence of the Summary is
                                                  you provide it in the body of your                      Accordingly, this action merely                       corrected to read: ‘‘These are Berkeley
                                                  comment. If you send an e-mail                          proposes to approve state law as                      County, part of the Hagerstown-
                                                  comment directly to EPA without going                   meeting Federal requirements and does                 Martinsburg MD-WV nonattainment
                                                  through www.regulations.gov, your e-                    not impose additional requirements                    area; Wood County and the Grant Tax
                                                  mail address will be automatically                      beyond those imposed by state law. For                District in Pleasants County, part of the
                                                  captured and included as part of the                    that reason, this proposed action:                    Parkersburg-Marietta WV-OH
                                                  comment that is placed in the public                       • Is not a ‘‘significant regulatory                nonattainment area; and Marshall
                                                  docket and made available on the                        action’’ subject to review by the Office              County and Ohio County, part of the
                                                  Internet. If you submit an electronic                   of Management and Budget under                        Wheeling WV-OH nonattainment area,
                                                  comment, EPA recommends that you                        Executive Order 12866 (58 FR 51735,                   hereinafter referred to in this notice as
                                                                                                          October 4, 1993);                                     the West Virginia portions of the
                                                  include your name and other contact
                                                  information in the body of your                            • Does not impose an information                   Hagerstown-Martinsburg, Parkersburg-
                                                                                                          collection burden under the provisions                Marietta, and Wheeling PM2.5
                                                  comment and with any disk or CD–ROM
                                                                                                          of the Paperwork Reduction Act (44                    nonattainment areas.’’
                                                  you submit. If EPA cannot read your                                                                             Also, on page 38156, the last sentence
                                                  comment due to technical difficulties                   U.S.C. 3501 et seq.);
                                                                                                             • Is certified as not having a                     of Section III is corrected to read: ‘‘The
                                                  and cannot contact you for clarification,                                                                     Hagerstown-Martinsburg nonattainment
                                                  EPA may not be able to consider your                    significant economic impact on a
                                                                                                          substantial number of small entities                  area (Berkeley County, WV and
                                                  comment. Electronic files should avoid                                                                        Washington County, MD), the
                                                  the use of special characters, any form                 under the Regulatory Flexibility Act (5
                                                                                                          U.S.C. 601 et seq.);                                  Parkersburg-Marietta nonattainment
                                                  of encryption, and be free of any defects
                                                                                                             • Does not contain any unfunded                    area (Wood County, WV, the Grant Tax
                                                  or viruses.                                                                                                   District in Pleasants County, WV, and
                                                     Docket: All documents in the                         mandate or significantly or uniquely
                                                                                                          affect small governments, as described                Washington County, OH), and the
                                                  electronic docket are listed in the                                                                           Wheeling nonattainment area (Marshall
                                                  www.regulations.gov index. Although                     in the Unfunded Mandates Reform Act
                                                                                                          of 1995 (Pub. L. 104–4);                              County, WV, Ohio County, WV, and
                                                  listed in the index, some information is
                                                                                                             • Does not have Federalism                         Belmont County, OH) were designated
                                                  not publicly available, i.e., CBI or other                                                                    nonattainment for the 1997 PM2.5
                                                                                                          implications as specified in Executive
                                                  information whose disclosure is                                                                               NAAQS (see 40 CFR part 81).’’
                                                                                                          Order 13132 (64 FR 43255, August 10,
                                                  restricted by statute. Certain other
                                                                                                          1999);                                                  Dated: August 19, 2009.
                                                  material, such as copyrighted material,
                                                                                                             • Is not an economically significant               William C. Early,
                                                  is not placed on the Internet and will be
                                                                                                          regulatory action based on health or                  Acting Regional Administrator, Region III.
                                                  publicly available only in hard copy
                                                                                                          safety risks subject to Executive Order               [FR Doc. E9–20735 Filed 8–26–09; 8:45 am]
                                                  form.
                                                                                                          13045 (62 FR 19885, April 23, 1997);
                                                     Publicly available docket materials                     • Is not a significant regulatory action           BILLING CODE 6560–50–P
                                                  are available either electronically in                  subject to Executive Order 13211 (66 FR
                                                  www.regulations.gov or in hard copy                     28355, May 22, 2001);
                                                  during normal business hours at the Air                                                                       ENVIRONMENTAL PROTECTION
                                                                                                             • Is not subject to requirements of
                                                  Protection Division, U.S. Environmental                                                                       AGENCY
                                                                                                          Section 12(d) of the National
                                                  Protection Agency, Region III, 1650                     Technology Transfer and Advancement
                                                  Arch Street, Philadelphia, Pennsylvania                                                                       40 CFR Part 81
                                                                                                          Act of 1995 (15 U.S.C. 272 note) because
                                                  19103.                                                  application of those requirements would               [EPA–R09–OAR–2008–0467; FRL–8950–2]
                                                  FOR FURTHER INFORMATION CONTACT:                        be inconsistent with the Clean Air Act;
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                                                  Marilyn Powers, at (215) 814–2308, or                                                                         Designation of Areas for Air Quality
                                                                                                          and                                                   Planning Purposes; California; San
                                                  by e-mail at powers.marilyn@epa.gov.                       • Does not provide EPA with the
                                                                                                                                                                Joaquin Valley, South Coast Air Basin,
                                                  SUPPLEMENTARY INFORMATION: On July                      discretionary authority to address, as
                                                                                                                                                                Coachella Valley, and Sacramento
                                                  31, 2009 (74 FR 38154), EPA published                   appropriate, disproportionate human
                                                                                                                                                                Metro Ozone Nonattainment Areas;
                                                  an NPR to determine that the West                       health or environmental effects, using
                                                                                                                                                                Reclassification
                                                  Virginia portions of three nonattainment                practicable and legally permissible
                                                  areas have clean data for the 1997 PM2.5                methods, under Executive Order 12898                  AGENCY: Environmental Protection
                                                  NAAQS. In the preamble of this                          (59 FR 7629, February 16, 1994).                      Agency (EPA).


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                                                                        Federal Register / Vol. 74, No. 165 / Thursday, August 27, 2009 / Proposed Rules                                                43655

                                                  ACTION:   Proposed rule.                                DATES: Written comments must be                       Table of Contents
                                                                                                          received on or before September 28,
                                                                                                                                                                I. What is the subject matter of this proposed
                                                  SUMMARY:    Under the Clean Air Act, EPA                2009.
                                                                                                                                                                      rule?
                                                  is proposing to grant requests by the                                                                         II. What is the background for this proposed
                                                                                                          ADDRESSES:    Submit your comments,
                                                  State of California to reclassify the                                                                               action?
                                                                                                          identified by Docket ID No. EPA–R09–
                                                  following four areas designated as                      OAR–2008–0467, by one of the                             A. What are the National Ambient Air 

                                                  nonattainment for the 1997 8-hour                       following methods:                                          Quality Standards? 

                                                  ozone national ambient air quality                                                                               B. What is the standard for 8-hour ozone?
                                                  standard: the San Joaquin Valley area                      1. http://www.regulations.gov: Follow
                                                                                                                                                                   C. What is a SIP and how does it relate to
                                                  from ‘‘serious’’ to ‘‘extreme,’’ the South              the on-line instructions for submitting
                                                                                                                                                                      the NAAQS for 8-hour ozone?
                                                  Coast Air Basin area from ‘‘severe-17’’ to              comments.                                                D. What are the affected California 8-hour
                                                  ‘‘extreme,’’ and the Coachella Valley                      2. E-mail: mays.rory@epa.gov.                            ozone nonattainment areas, what are
                                                  and Sacramento Metro areas from                            3. Fax: 415–947–3579.                                    their current classifications, and what is
                                                  ‘‘serious’’ to ‘‘severe-15.’’                              4. Mail or deliver: Rory Mays (AIR–2),                   the status of their SIP submittals?
                                                                                                          U.S. Environmental Protection Agency,                    1. Affected Areas and Their Current 

                                                     In connection with the
                                                                                                          Region IX, 75 Hawthorne Street, San                         Classifications 

                                                  reclassifications, EPA is proposing to
                                                                                                          Francisco, CA 94105–3901.                                2. Status of SIP Submittals
                                                  establish a deadline of no later than 12
                                                                                                                                                                   E. What are the consequences of 

                                                  months from the effective date of                          Instructions: All comments will be                       reclassifications? 

                                                  reclassification for submittal of                       included in the public docket without                 III. What action is EPA proposing?
                                                  revisions to the Coachella Valley and                   change and may be made available                         A. Granting the State’s Requests for 

                                                  Sacramento Metro area portions of the                   online at http://www.regulations.gov,                       Reclassification 

                                                  California State Implementation Plan                    including any personal information                       B. Reclassification of Indian Country
                                                  (SIP) to meet certain additional                        provided, unless the comment includes                    1. Affected Tribes
                                                  requirements for ‘‘severe-15’’ 8-hour                   Confidential Business Information (CBI)                  2. Evaluation
                                                  ozone nonattainment areas. EPA has                      or other information whose disclosure is                 3. Effects of Reclassifications on Indian
                                                  already received SIP revision submittals                restricted by statute. Information that                     Tribes
                                                  addressing most of the additional SIP                   you consider CBI or otherwise protected                  C. Setting Deadlines for Submitting SIP
                                                  requirements for these two areas and                    should be clearly identified as such and                    Revisions
                                                  has received all of the related SIP                     should not be submitted through the                   IV. Proposed Action and Request for Public
                                                  revision submittals for San Joaquin                     http://www.regulations.gov or e-mail.                       Comment
                                                  Valley and the South Coast Air Basin.                   http://www.regulations.gov is an                      V. Statutory and Executive Order Reviews
                                                  The Agency is not proposing a SIP                       anonymous access system, and EPA will
                                                                                                          not know your identity or contact                     I. What is the subject matter of this
                                                  revision schedule for any SIP
                                                                                                          information unless you provide it in the              proposed rule?
                                                  requirements for which SIP submittals
                                                  have already been received.                             body of your comment. If you send e-
                                                                                                                                                                  Today’s proposed rule provides EPA’s
                                                                                                          mail directly to EPA, your e-mail
                                                     A number of Indian tribes have Indian                                                                      response to requests by a state for
                                                                                                          address will be automatically captured
                                                  country 1 located within the boundaries                 and included as part of the public                    voluntary reclassifications, under
                                                  of the affected areas. The State of                     comment. If EPA cannot read your                      section 181(b)(3) of the Clean Air Act
                                                  California is not approved to administer                comment due to technical difficulties                 (CAA or ‘‘Act’’), for certain areas
                                                  any Clean Air Act programs in Indian                    and cannot contact you for clarification,             designated as nonattainment for the
                                                  country, and the relevant Indian tribes                 EPA may not be able to consider your                  1997 8-hour ozone national ambient air
                                                  have not applied for eligibility to                     comment.                                              quality standard. Specifically, the State
                                                  administer programs under the Clean                                                                           of California has requested
                                                  Air Act for their areas. In these                          Docket: The index to the docket for
                                                                                                          this action is available electronically at            reclassification to higher classifications
                                                  circumstances, EPA implements                                                                                 for four 8-hour ozone nonattainment
                                                                                                          http://www.regulations.gov and in hard
                                                  relevant reclassification provisions of                                                                       areas. These areas include San Joaquin
                                                                                                          copy at EPA Region IX, 75 Hawthorne
                                                  the Clean Air Act in these Indian                                                                             Valley, South Coast Air Basin, Coachella
                                                                                                          Street, San Francisco, California. While
                                                  country areas and is proposing that                                                                           Valley, and Sacramento Metro. We are
                                                                                                          all documents in the docket are listed in
                                                  these areas be reclassified in keeping                                                                        reviewing these requests under section
                                                                                                          the index, some information may be
                                                  with the classifications of                                                                                   181(b)(3) of the Clean Air Act, which
                                                                                                          publicly available only at the hard copy
                                                  nonattainment areas within which they                                                                         provides for ‘‘voluntary reclassification’’
                                                                                                          location (e.g., copyrighted material), and
                                                  are located. In connection with this                                                                          and states: ‘‘The Administrator shall
                                                                                                          some may not be publicly available in
                                                  proposed action, EPA has notified the
                                                                                                          either location (e.g., CBI). To inspect the           grant the request of any State to
                                                  affected tribal leaders and has invited
                                                                                                          hard copy materials, please schedule an               reclassify a nonattainment area in that
                                                  consultation with interested tribes.
                                                                                                          appointment during normal business                    State in accordance with Table 1 of
                                                                                                          hours with the contact listed directly                subsection (a) of this section to a higher
                                                     1 ‘‘Indian country’’ as defined at 18 U.S.C. 1151

                                                  refers to: ‘‘(a) All land within the limits of any
                                                                                                          below.                                                classification. The Administrator shall
                                                                                                                                                                publish a notice in the Federal Register
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                                                  Indian reservation under the jurisdiction of the
                                                  United States Government, notwithstanding the
                                                                                                          FOR FURTHER INFORMATION CONTACT:   Rory
                                                                                                          Mays, Air Planning Office (AIR–2), U.S.               of any such request and of action by the
                                                  issuance of any patent, and, including rights-of-way
                                                  running through the reservation, (b) all dependent      Environmental Protection Agency,                      Administrator granting the request.’’ See
                                                  Indian communities within the borders of the            Region IX, (415) 972–3227,                            40 CFR 51.903(b) (‘‘A State may request
                                                  United States whether within the original or
                                                                                                          mays.rory@epa.gov.                                    a higher classification for any reason in
                                                  subsequently acquired territory thereof, and
                                                  whether within or without the limits of a state, and
                                                                                                                                                                accordance with section 181(b)(3) of the
                                                                                                          SUPPLEMENTARY INFORMATION:                            CAA’’) and 40 CFR 51.903(a) Table 1.
                                                  (c) all Indian allotments, the Indian titles to which
                                                  have not been extinguished, including rights-of-way     Throughout this document, the terms
                                                  running through the same.’’                             ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA.


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                                                  43656                 Federal Register / Vol. 74, No. 165 / Thursday, August 27, 2009 / Proposed Rules

                                                  II. What is the background for this                     regulations and control strategies to EPA             nonattainment areas (Sacramento Metro,
                                                  proposed action?                                        for approval and incorporation into the               Ventura County and Western Mojave
                                                                                                          Federally-enforceable State                           Desert), we found that the areas had not
                                                  A. What are the National Ambient Air
                                                                                                          Implementation Plan, or SIP. Each SIP                 submitted, either in part or in full, the
                                                  Quality Standards?
                                                                                                          protects air quality primarily by                     RFP plans that applied by virtue of their
                                                    The CAA requires EPA to establish a                   addressing air pollution at its point of              current ozone classification (i.e., prior to
                                                  National Ambient Air Quality Standard                   origin. These SIPs can be extensive.                  reclassification). See letter dated March
                                                  (NAAQS) for certain pervasive                           They may contain state regulations or                 17, 2008 from Wayne Nastri, Regional
                                                  pollutants that ‘‘may reasonably be                     other enforceable documents and                       Administrator, EPA–Region IX, to Mary
                                                  anticipated to endanger public health                   supporting information such as                        D. Nichols, Chairman, California Air
                                                  and welfare’’ and to develop a primary                  emission inventories, monitoring                      Resources Board.
                                                  and secondary standard for each                         networks, and modeling                                  Since our March 17, 2008 findings
                                                  NAAQS. The primary standard is                          demonstrations.                                       (published in the Federal Register on
                                                  designed to protect public health with                     We promulgated final rules to                      March 24, 2008), the State of California
                                                  an adequate margin of safety and the                    implement the 1997 8-hour ozone                       has submitted the necessary RFP plans
                                                  secondary standard is designed to                       NAAQS in two phases. The Phase 1                      for all three areas (i.e., Sacramento
                                                  protect public welfare and the                          rule, which was issued on April 30,                   Metro, Ventura County and Western
                                                  environment. EPA has set NAAQS for                      2004 (69 FR 23951), establishes, among                Mojave Desert). By letters dated
                                                  six common air pollutants, referred to as               other things, the classification structure            September 19, 2008, October 2, 2008,
                                                  criteria pollutants: carbon monoxide,                   and corresponding attainment                          and October 2, 2008, respectively, we
                                                  lead, nitrogen dioxide, ozone,                          deadlines, as well as the anti-                       notified California that we had found
                                                  particulate matter, and sulfur dioxide.                 backsliding principles for the transition             the Sacramento Metro, Ventura County
                                                  These standards present state and local                 from the 1-hour ozone standard to the                 and Western Mojave Desert plans that
                                                  governments with the air quality levels                 8-hour ozone standard.                                were submitted on the dates listed
                                                  an area must meet to comply with the                       However, on December 22, 2006, the                 above to be complete and that the
                                                  CAA.                                                    U.S. Court of Appeals for the District of             related sanctions clocks begun on March
                                                                                                          Columbia Circuit vacated EPA’s Phase 1                24, 2008 had been permanently stopped.
                                                  B. What is the standard for 8-hour
                                                                                                          rule. See South Coast Air Quality                     See letters from Deborah Jordan,
                                                  ozone?
                                                                                                          Management Dist. v. EPA, 472 F.3d 882                 Director, Air Division, EPA–Region IX
                                                     Ozone is a gas composed of three                     (D.C. Cir. 2006). On June 8, 2007, in                 to James Goldstene, Executive Officer,
                                                  oxygen atoms. It is not usually emitted                 response to several petitions for                     California Air Resources Board, dated
                                                  directly into the air, but at ground level              rehearing, the D.C. Circuit clarified that            September 19, 2008, October 2, 2008,
                                                  is created by a chemical reaction                       the Phase 1 rule was vacated only with                and October 2, 2008, respectively.
                                                  between volatile organic compounds                      regard to those parts of the rule that had
                                                  (VOC) and oxides of nitrogen (NOX) in                   been successfully challenged. See South               D. What are the affected California 8-
                                                  the presence of sunlight. On July 18,                   Coast Air Quality Management Dist. v.                 hour ozone nonattainment areas, what
                                                  1997, EPA promulgated an 8-hour ozone                   EPA, 489 F.3d 1245 (D.C. Cir. 2007).                  are their current classifications, and
                                                  standard of 0.08 parts per million (ppm)                The provisions of the Phase 1 rule that               what is the status of their SIP
                                                  to replace the less-protective 0.12 ppm                 are directly relevant for the purposes of             submittals?
                                                  1-hour ozone standard that was                          this proposed rule were not among the                 1. Affected Areas and Their Current
                                                  established by EPA in 1979. We revoked                  provisions that were successfully                     Classifications
                                                  the 1-hour ozone standard effective June                challenged, and they remain effective.
                                                  15, 2005. See 40 CFR 50.9(b) and 69 FR                                                                           Effective June 15, 2004, we designated
                                                                                                          Such provisions include the                           nonattainment areas for the 1997 8-hour
                                                  23858 (April 30, 2004). Under EPA                       classifications for areas under Title I,
                                                  regulations at 40 CFR part 50, the 8-hour                                                                     ozone NAAQS. At the same time, we
                                                                                                          Part D, subpart 2 of the CAA and the                  assigned classifications to many of these
                                                  ozone standard is attained when the 3-                  related 8-hour ozone standard
                                                  year average of the annual fourth                                                                             areas based upon their ozone ‘‘design
                                                                                                          attainment dates.                                     value,’’ in accordance with the structure
                                                  highest daily maximum 8-hour average                       The Phase 2 rule, which was issued
                                                  ozone concentrations is less than or                                                                          of Part D, subpart 2 of Title I of the
                                                                                                          on November 29, 2005 (70 FR 71612),
                                                  equal to 0.08 ppm (i.e., 0.084 ppm when                                                                       Clean Air Act.3 See 69 FR 23858 (April
                                                                                                          addresses the remaining SIP obligations
                                                  rounding is considered). (See 69 FR                                                                           30, 2004) and 40 CFR 51.903(a). The 8-
                                                                                                          for the 1997 8-hour ozone NAAQS,
                                                  23858, April 30, 2004, for further                                                                            hour ozone designations and
                                                                                                          including the SIP elements associated
                                                  information).2                                                                                                classifications for California areas are
                                                                                                          with reasonably available control
                                                                                                                                                                codified at 40 CFR 81.305.
                                                  C. What is a SIP and how does it relate                 technology (RACT), reasonably available               Classifications for four of those 8-hour
                                                  to the NAAQS for 8-hour ozone?                          control measures (RACM), reasonable                   ozone nonattainment areas are affected
                                                                                                          further progress (RFP), modeling and                  by this proposal. As noted previously,
                                                    Section 110 of the CAA requires states                attainment demonstrations, new source
                                                  to develop air pollution regulations and                                                                      these four areas (and their current
                                                                                                          review (NSR), vehicle inspection and                  classifications) are as follows: San
                                                  control strategies to ensure that air                   maintenance programs (I/M), and
                                                  quality meets the NAAQS established                                                                           Joaquin Valley (serious), South Coast
                                                                                                          contingency measures (for failure to                  Air Basin (severe-17), Coachella Valley
                                                  by EPA. Each state must submit these                    meet RFP and the attainment date).
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                                                                                                                                                                (serious), and Sacramento Metro
                                                                                                             In March 2008, EPA found that some
                                                    2 Today’s proposed rule deals with the                                                                      (serious).
                                                  classifications and SIP obligations associated with
                                                                                                          ozone nonattainment areas in the nation
                                                  the 8-hour ozone NAAQS promulgated in 1997. On          had failed to submit attainment                       2. Status of SIP Submittals
                                                  March 27, 2008, EPA revised the level of the 8-hour     demonstrations, Reasonable Further                       Table 1 presents the 1-hour ozone
                                                  ozone standard to 0.075 ppm. See 73 FR 16436 for        Progress (RFP) plans, and Reasonably
                                                  further information. Designations, classifications,                                                           classification (i.e., at the time of
                                                  and SIP obligations under the 2008 revised ozone
                                                                                                          Available Control Technology (RACT)
                                                  standard will be addressed separately in future EPA     SIPs. See 73 FR 15416 (March 24, 2008).                 3 The design value for 8-hour ozone is defined at

                                                  rulemakings.                                            For three California 8-hour ozone                     40 CFR 51.900(d).



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                                                                           Federal Register / Vol. 74, No. 165 / Thursday, August 27, 2009 / Proposed Rules                                                                        43657

                                                  designation for the 8-hour ozone                                reclassification, essentially be returning                            standard. In the paragraphs that follow
                                                  NAAQS) for each of the four areas along                         to their respective classifications under                             Table 1, we discuss the status of
                                                  with each area’s corresponding current                          the 1-hour standard.4 As a result, many                               relevant SIP submittals for each of the
                                                  and requested 8-hour ozone                                      SIP submittal requirements for these                                  four areas. In this instance, the term,
                                                  classification. A comparison of each                            areas have already been met. Most                                     ‘‘relevant SIP submittals,’’ refers to
                                                  area’s classification under the 1-hour                          ozone requirements for these areas were                               those submittals made to satisfy the
                                                  ozone standard with the area’s                                  addressed in the 1990s in response to                                 specific additional requirements
                                                  classification under the 8-hour ozone                           the CAA Amendments of 1990, as well                                   triggered by reclassification, not those
                                                  standard (i.e., when reclassified) shows                        as in response to previous ozone                                      that already apply by virtue of an area’s
                                                  that the affected areas would, upon                             reclassifications under the 1-hour                                    current classification.

                                                                                                  TABLE 1—EXISTING AND FUTURE OZONE CLASSIFICATIONS
                                                                                                                                                                   Existing                                          Requested
                                                   8-Hour ozone nonattainment area                     1-Hour ozone classification                        8-hour ozone classification                        8-hour ozone classification

                                                  San Joaquin Valley ........................     Extreme ........................................   Serious ..........................................   Extreme.
                                                  South Coast Air Basin ...................       Extreme ........................................   Severe-17 .....................................      Extreme.
                                                  Coachella Valley ............................   Severe-17 .....................................    Serious ..........................................   Severe-15.
                                                  Sacramento Metro .........................      Severe-15 .....................................    Serious ..........................................   Severe-15.



                                                     San Joaquin Valley. On November 16,                          (July 14, 2009) and 74 FR 33950 (July                                    Coachella Valley. In that same
                                                  2007, the California Air Resources                              14, 2009; reproposed August 19, 2009),                                November 28, 2007 reclassification
                                                  Board (CARB) requested that EPA                                 respectively, for EPA proposed actions                                request and submittal, CARB requested
                                                  reclassify the San Joaquin Valley 8-hour                        on those submittals.                                                  that EPA reclassify the Coachella Valley
                                                  ozone nonattainment area from                                      South Coast Air Basin. On November                                 8-hour ozone nonattainment area from
                                                  ‘‘serious’’ to ‘‘extreme’’. This request                        28, 2007, CARB requested that EPA                                     ‘‘serious’’ to ‘‘severe-15.’’ The state has
                                                  was accompanied by a submittal of a                                                                                                   made a submittal addressing certain
                                                                                                                  reclassify the South Coast Air Basin 8-
                                                  SIP revision addressing certain                                                                                                       additional SIP requirements that would
                                                                                                                  hour ozone nonattainment area from
                                                  additional SIP requirements that would                                                                                                apply to Coachella Valley by virtue of
                                                                                                                  ‘‘severe-17’’ to ‘‘extreme.’’ This request
                                                  apply to San Joaquin Valley by virtue of                                                                                              reclassification from ‘‘serious’’ to
                                                  reclassification from ‘‘serious’’ to                            was accompanied by a submittal of a
                                                                                                                  SIP revision addressing certain                                       ‘‘severe-15,’’ including RFP, attainment
                                                  ‘‘extreme,’’ including RFP, attainment                                                                                                demonstration, contingency measures,
                                                  demonstration, contingency measures,                            additional SIP requirements that would
                                                                                                                  apply to the South Coast Air Basin by                                 and transportation control measures to
                                                  and transportation control measures to                                                                                                offset emissions from growth in vehicle
                                                  offset emissions from growth in vehicle                         virtue of reclassification from ‘‘severe-
                                                                                                                  17’’ to ‘‘extreme,’’ including RFP,                                   miles traveled (CAA section
                                                  miles traveled (CAA section                                                                                                           182(d)(1)(A)).5 CARB submitted a
                                                  182(d)(1)(A)). On June 18, 2009, CARB                           attainment demonstration, and
                                                                                                                  contingency measures. CARB submitted                                  ‘‘severe-15’’ RACT SIP for the area on
                                                  submitted a RACT SIP for San Joaquin
                                                                                                                  an ‘‘extreme’’ RACT SIP for the area on                               January 31, 2007. CARB has submitted
                                                  Valley addressing stationary sources
                                                                                                                  January 31, 2007. CARB has submitted                                  NSR rules consistent with the proposed
                                                  with potentials to emit 10 tons per year
                                                  of VOC or NOX or more (i.e., the                                NSR rules consistent with the proposed                                reclassification of this area to ‘‘severe-
                                                  threshold for ‘‘major sources’’ in                              reclassification of this area to                                      15.’’ See 61 FR 64291 (December 4,
                                                  ‘‘extreme’’ ozone nonattainment areas).                         ‘‘extreme.’’ See 61 FR 64291 (December                                1996) for information regarding NSR
                                                  On March 17, 2009, CARB submitted                               4, 1996) for information regarding South                              rules that apply within Coachella
                                                  NSR rules consistent with the proposed                          Coast NSR rules. CARB has previously                                  Valley. CARB has not yet submitted a
                                                  reclassification of this area to                                submitted SIP revisions for South Coast                               SIP revision addressing the CAA section
                                                  ‘‘extreme.’’ CARB has previously                                Air Basin addressing the clean fuels for                              185 fees requirement for Coachella
                                                  submitted SIP revisions for San Joaquin                         boilers requirement under CAA section                                 Valley.
                                                  Valley addressing the clean fuels for                           182(e)(3). See 61 FR 57775 (November 8,                                  Sacramento Metro. By letter dated
                                                  boilers requirement under CAA section                           1996) for EPA’s approval of the rule                                  February 14, 2008, CARB requested that
                                                  182(e)(3) and the major stationary                              submitted to satisfy the CAA section                                  EPA reclassify three California areas
                                                  source fees requirement under CAA                               182(e)(3) requirement in the South                                    designated nonattainment for the 8-hour
                                                  section 185. See 74 FR 33933, at 33945                          Coast.                                                                ozone standard: Ventura County,6
                                                     4 From the standpoint of SIP submittal                       Valley as having been submitted on February 19,                       has previously submitted SIP revisions for Ventura
                                                  requirements, there is no distinction between the               2008.                                                                 County addressing the enhanced monitoring
                                                  ‘‘severe-15’’ classification and the ‘‘severe-17’’                 6 On May 20, 2008 (73 FR 29073), EPA took final                    requirement under CAA section 182(c)(1), the
                                                  classification.                                                 action to grant the State’s request to reclassify                     enhanced vehicle inspection and maintenance (I/M)
                                                     5 CARB’s November 28, 2007 submittal included                Ventura County from ‘‘moderate’’ to ‘‘serious,’’                      requirement under CAA section 182(c)(3), and the
                                                  an attainment demonstration plan as a ‘‘severe-15’’             effective June 19, 2008. See 73 FR 29073 (May 20,                     clean-fuel vehicles requirement under CAA section
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                                                  area for Coachella Valley, but included the RFP                 2008). In our May 20, 2008 final rule, we stated that                 182(c)(4). See 62 FR 1150 (January 8, 1997) and 64
                                                  plan for informational purposes only, effectively               we will propose in a separate document a schedule                     FR 46849 (August 27, 1999) for EPA’s approvals
                                                  withholding the ‘‘severe-15’’ RFP plan from                     for required plan submittals for Ventura County                       related to the I/M program and the clean-fuel
                                                  submittal to EPA, due to concerns about litigation              under the new classification. However, on June 27,                    vehicles requirement, respectively. In addition,
                                                  and EPA policy on use of out-of-area reductions in              2008, CARB submitted a SIP revision for Ventura                       CARB has submitted NSR rules consistent with the
                                                  RFP plans. CARB subsequently withdrew this                      County addressing certain additional SIP                              reclassification of this area. See 66 FR 76567
                                                  withholding request in a letter to EPA dated                    requirements that apply to Ventura County by                          (December 7, 2000) for EPA’s approval of Ventura
                                                  February 19, 2008. For administrative SIP                       virtue of reclassification from ‘‘moderate’’ to                       County’s NSR rules. Since CARB has submitted SIP
                                                  completeness and final Agency action purposes,                  ‘‘serious,’’ including RACT, RFP, attainment                          revisions addressing all of the additional
                                                  EPA intends to treat the RFP plan for Coachella                 demonstration, and contingency measures. CARB                         requirements for Ventura County that apply by
                                                                                                                                                                                                                                   Continued



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                                                  43658                 Federal Register / Vol. 74, No. 165 / Thursday, August 27, 2009 / Proposed Rules

                                                  Sacramento Metro,7 and Western                          demonstrate RACT level of control for                 III. What action is EPA proposing?
                                                  Mojave Desert.8 With respect to                         all stationary sources with potentials to
                                                                                                                                                                A. Granting the State’s Requests for
                                                  Sacramento Metro, CARB requested                        emit at lower ‘‘major source’’ emissions
                                                                                                                                                                Reclassification
                                                  reclassification from ‘‘serious’’ to                    thresholds, RFP, and attainment. We
                                                  ‘‘severe-15.’’ On April 17, 2009, CARB                  note, however, that while the state is                   We find that the plain language of
                                                  submitted a SIP revision for the                        generally provided time to submit SIP                 section 181(b)(3) mandates that we
                                                  Sacramento Metro nonattainment area                     revisions, there are certain requirements             approve voluntary reclassification
                                                  addressing certain additional SIP                       that would be triggered upon the                      requests,10 and thus, EPA intends to
                                                  requirements that would apply to the                    effective date of the reclassification,               take final action granting the State’s
                                                  Sacramento Metro area by virtue of                      such as lower applicability (or ‘‘de                  request for the following voluntary
                                                  reclassification from ‘‘serious’’ to                    minimis’’) thresholds under our General               reclassifications: the San Joaquin Valley
                                                  ‘‘severe-15,’’ including RFP, attainment                Conformity rule (see 40 CFR                           area from ‘‘serious’’ to ‘‘extreme’’; the
                                                  demonstration, contingency measures,                    93.153(b)(1)). For Federal actions                    South Coast Air Basin area from
                                                  and transportation control measures to                  proposed in San Joaquin Valley, the de                ‘‘severe-17’’ to ‘‘extreme’’; and the
                                                  offset emissions from growth in vehicle                 minimis threshold under EPA’s General                 Coachella Valley and Sacramento Metro
                                                  miles traveled (CAA section                             Conformity rule would drop from 50                    areas from ‘‘serious’’ to ‘‘severe-15.’’
                                                  182(d)(1)(A)). CARB has also submitted                  tons per year to 10 tons per year for                 Upon the effective date of a final action
                                                  ‘‘severe-15’’ area RACT SIPs (i.e.,                     VOC or NOX. In the South Coast, the de                granting the reclassifications, these four
                                                  implementing RACT for sources with                      minimis threshold would drop from 25                  areas will be required to attain the 8-
                                                  potential to emit 25 tons per year of                   to 10 tons per year. In Coachella Valley              hour ozone NAAQS as expeditiously as
                                                  VOC or NOX or more) for all air districts               and Sacramento Metro, the de minimis                  practicable, but not later than the
                                                  within the Sacramento Metro area. For                   threshold would drop from 50 to 25 tons               applicable maximum attainment period
                                                  New Source Review, CARB has                             per year. See 40 CFR 93.153(b)(1).                    set forth in 40 CFR 51.903(a), Table 1:
                                                  submitted a ‘‘severe-15’’ area SIP only                 Under EPA’s General Conformity rule,                  June 15, 2024 for San Joaquin Valley
                                                  for the Yolo-Solano and El Dorado                       Federal agencies bear the responsibility              and the South Coast Air Basin; and June
                                                  portions of the Sacramento Metro area,                  of determining conformity of actions in               15, 2019 for Coachella Valley and
                                                  and CARB has submitted a SIP revision                   nonattainment and maintenance areas                   Sacramento Metro.11
                                                  addressing the CAA section 185 fees                     that require Federal permits, approvals,
                                                  requirement only for the Sacramento                     or funding.                                           B. Reclassification of Indian Country
                                                  Metropolitan AQMD portion of the                           In regards to Title V operating permit             1. Affected Tribes
                                                  Sacramento Metro area. See 68 FR                        programs and the requirements for SIPs
                                                  51184 (August 26, 2003) for EPA’s                       regarding review of new or modified                     Table 2 lists the tribes that have
                                                  approval of Sacramento Metropolitan                     major stationary sources (‘‘new source                Indian country geographically located in
                                                  AQMD’s fees rule.                                       review’’), the reclassifications proposed             the nonattainment areas at issue in this
                                                                                                          herein would not lower the ‘‘major                    proposal. As shown in Table 2, 21 tribes
                                                  E. What are the consequences of
                                                  reclassifications?                                      source’’ applicability thresholds                     are located within the four areas: seven
                                                                                                          required in a revised SIP because the                 in San Joaquin Valley, seven in South
                                                    By granting a state’s request to                      statutory thresholds that applied by                  Coast, four in Coachella Valley, and
                                                  reclassify an ozone nonattainment area                  virtue of the areas’ classifications under            three in Sacramento Metro.
                                                  to a higher classification, EPA must                    the 1-hour ozone standard continue to
                                                  address submittal deadlines for SIP                     apply as anti-backsliding measures for                EPA memorandum from Robert J. Meyers, ‘‘New
                                                  requirements that have become                           the 8-hour ozone standard (see South                  Source Review (NSR) Aspects of the Decision of the
                                                  applicable to an area as a result of its                Coast Air Quality Management Dist. v.                 U.S. Court of Appeals for the District of Columbia
                                                  higher classification. Such SIP                                                                               Circuit on the Phase 1 Rule to Implement the 8-
                                                                                                          EPA, 472 F.3d 882 (D.C. Cir. 2006)                    Hour Ozone National Ambient Air Quality
                                                  requirements include submittals that                    rehearing denied 489 F.3d 1245                        Standards (NAAQS),’’ dated October 3, 2007. As
                                                                                                          (clarifying that the vacatur was limited              provided in CAA sections 501 and 502(a) and 40
                                                  virtue of reclassification from ‘‘moderate’’ to         to the issues on which the court granted              CFR 70.2, 70.3(a), 71.2 and 71.3(a), the thresholds
                                                  ‘‘serious,’’ we will not be proposing a schedule for                                                          at which a source is required to apply for and
                                                  any additional SIP revisions for Ventura County as      the petitions for review)), and the new               operate a Title V operating permit are linked to the
                                                  a ‘‘serious’’ area under the 1997 8-hour ozone          8-hour ozone classification for each of               NSR ‘‘major source’’ applicability threshold.
                                                  standard.                                               the four subject areas, as reclassified,                 10 The reclassification requests submitted by
                                                     7 The Sacramento Metro 8-hour ozone                                                                        CARB do not explicitly address Indian country
                                                                                                          would be the same as the area’s
                                                  nonattainment area includes all of Sacramento                                                                 located within the various ozone nonattainment
                                                  County and Yolo County, and portions of El
                                                                                                          corresponding 1-hour ozone                            areas. We assume that CARB’s request relates only
                                                  Dorado, Placer, Solano, and Sutter Counties. The        classification (see Table 1 above).9                  to the portions of the nonattainment areas that lie
                                                  applicable air districts include Sacramento                                                                   outside of Indian country.
                                                  Metropolitan Air Quality Management District               9 In EPA’s phase 1 ozone implementation rule,         11 If today’s action is finalized as proposed, the
                                                  (AQMD), Yolo-Solano AQMD, El Dorado County              EPA made NSR applicability thresholds dependent       new attainment dates would apply area-wide to
                                                  AQMD, Placer County Air Pollution Control District      upon the status and classification of an area under   both State lands and Indian country located therein,
                                                  (APCD), and Feather River AQMD.                         the 8-hour ozone standard. The effect of the ruling   but unlike the State of California, the Indian tribes
                                                     8 CARB has requested that the Western Mojave         in the South Coast Air Quality Management Dist.       located within the four subject areas would not be
                                                  Desert 8-hour ozone nonattainment area be               v. EPA case is to restore NSR applicability           subject to specific plan submittal and
                                                  reclassified from ‘‘moderate’’ to ‘‘severe-17.’’ EPA    thresholds pursuant to the classifications            implementation deadlines under the new ozone
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                                                  will take action on CARB’s reclassification request     previously in effect for areas designated             classifications, such as plan submittals discussed in
                                                  for Western Mojave Desert in a separate rulemaking.     nonattainment for the 1-hour ozone standard. See      subsection III.C of this document.




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                                                                        Federal Register / Vol. 74, No. 165 / Thursday, August 27, 2009 / Proposed Rules                                             43659

                                                                               TABLE 2—INDIAN TRIBES LOCATED IN AREAS SUBJECT TO RECLASSIFICATIONS
                                                           San Joaquin Valley                             South Coast                              Coachella Valley                 Sacramento Metro

                                                  Big Sandy Rancheria of Mono Indi­          Cahuilla Band of Indians (includ­         Agua Caliente Band of Cahuilla        United Auburn Indian Community
                                                    ans (including the Big Sandy               ing the Cahuilla Reservation).            Indians (including the Agua           (including      the    Auburn
                                                    Rancheria).                                                                          Caliente Indian Reservation).         Rancheria).
                                                  Cold Springs Rancheria of Mono In­         Morongo Band of Mission Indians           Augustine Band of Cahuilla Mis­       Rumsey Indian Rancheria of
                                                    dians (including the Cold Springs          (including the Morongo Res­               sion Indians (including the Au­       Wintun Indians (including the
                                                    Rancheria).                                ervation).                                gustine Reservation).                 Rumsey Indian Rancheria).
                                                  North Fork Rancheria of Mono Indi­                                  ˜
                                                                                             Pechanga Band of Luiseno Mis­             Cabazon Band of Mission Indians       Shingle Springs Band of Miwok
                                                    ans (including the North Fork              sion Indians (including the               (including the Cabazon Res­           Indians [including the Shingle
                                                    Rancheria).                                Pechanga Reservation).                    ervation).                            Springs Rancheria (Verona
                                                                                                                                                                               Tract)].
                                                  Picayune Rancheria of Chukchansi           Ramona Band of Cahuilla (includ­          Torres Martinez Desert Cahuilla
                                                    Indians (including the Picayune            ing the Ramona Band).                     Indians (including the Torres-
                                                    Rancheria).                                                                          Martinez Reservation).
                                                  Santa Rosa Rancheria Tachi Yokut           San Manuel Band of Serrano
                                                    Tribe (including the Santa Rosa            Mission Indians (including the
                                                    Rancheria).                                San Manuel Reservation).
                                                  Table Mountain Rancheria (includ­          Santa Rosa Band of Cahuilla Mis­
                                                    ing    the     Table    Mountain           sion Indians (including the
                                                    Rancheria).                                Santa Rosa Reservation).
                                                  Tule River Indian Tribe (including                                ˜
                                                                                             Soboba Band of Luiseno Mission
                                                    the Tule River Reservation).               Indians (including the Soboba
                                                                                               Reservation).



                                                  2. Evaluation                                           programs and protect air quality in                     nonattainment area. Therefore,
                                                     We have considered the relevance of                  Indian country through federal                          boundaries for nonattainment areas are
                                                  the State’s reclassification requests to                implementation. Section 301(a)                          drawn to encompass both areas with
                                                  reclassification of these tribes’ Indian                authorizes the Administrator ‘‘to                       direct sources of the pollution problem
                                                  country located within the various                      prescribe such regulations as are                       as well as nearby areas in the same
                                                  nonattainment areas. Typically, states                  necessary to carry out his functions                    airshed. Initial classifications of
                                                  are not approved to administer                          under the [the Act.]’’ Further, section                 nonattainment areas are coterminous
                                                  programs under the CAA in Indian                        301(d) provides:                                        with, that is, they match exactly, their
                                                  country, and California has not been                      In any case in which the Administrator                boundaries. EPA believes this approach
                                                  approved by EPA to administer any                       determines that the treatment of Indian tribes          best ensures public health protection
                                                  CAA programs in Indian country. CAA                     as identical to States is inappropriate or              from the adverse effects of ozone
                                                  actions in Indian country would thus                    administratively infeasible, the                        pollution. Therefore, it is generally
                                                                                                          Administrator may provide, by regulation,               counterproductive from an air quality
                                                  generally be taken either by EPA, or by                 other means by which the Administrator will
                                                  an eligible Indian tribe itself under an                                                                        and planning perspective to have a
                                                                                                          directly administer such provision so as to
                                                  EPA-approved program. In this instance,                                                                         disparate classification for a land area
                                                                                                          achieve the appropriate purpose.
                                                  none of the affected tribes has applied                                                                         located within the boundaries of a
                                                                                                             While tribes may choose to apply for                 nonattainment area, such as the Indian
                                                  under CAA section 301(d) for treatment-
                                                                                                          eligibility to adopt implementation                     country contained in the ozone
                                                  in-a-similar-manner-as-a-state for
                                                                                                          plans and seek reclassification of their                nonattainment areas at issue here.
                                                  purposes of reclassification requests
                                                                                                          areas in a manner similar to states,                    Moreover, violations of the eight-hour
                                                  under section 181(b)(3), and none
                                                                                                          tribes need not do so. For the following                ozone standard, which are measured
                                                  operates any relevant EPA-approved
                                                                                                          reasons, EPA is proposing to directly                   and modeled throughout the
                                                  CAA regulatory program (e.g., a tribal
                                                                                                          administer section 181(b)(3) and                        nonattainment areas, as well as shared
                                                  implementation plan). In addition, the
                                                                                                          reclassify these Indian country areas in                meteorological conditions, would
                                                  CAA does not require Indian tribes to
                                                                                                          order to avoid inappropriate and                        dictate the same result. Furthermore,
                                                  develop and seek approval of air
                                                                                                          administratively infeasible results.12                  emissions changes in lower-classified
                                                  programs, and—pursuant to our
                                                                                                             Ground-level ozone continues to be a                 ozone areas could hinder planning
                                                  authority in CAA section 301(d)—EPA
                                                                                                          pervasive pollution problem in areas                    efforts to attain the NAAQS within the
                                                  has interpreted relevant CAA
                                                                                                          throughout the United States. Ozone                     overall area through the application of
                                                  requirements for submission of air
                                                                                                          and precursor pollutants that cause                     less stringent requirements relative to
                                                  programs as not applying to tribes. See
                                                                                                          ozone can be transported throughout a                   those that apply in the areas with higher
                                                  40 CFR section 49.4. In these
                                                  circumstances, EPA is the appropriate                                                                           ozone classifications.
                                                                                                            12 Consistent with this discretionary authority,
                                                  entity to administer relevant CAA                       EPA is also authorized to promulgate such federal          Uniformity of classification
                                                  programs in Indian country. EPA is                                                                              throughout a nonattainment area is thus
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                                                                                                          implementation plan provisions as are necessary or
                                                  proposing to directly administer CAA                    appropriate to protect air quality in the absence of    a guiding principle and premise when
                                                                                                          an approved tribal implementation plan. See 40
                                                  section 181(b)(3) and reclassify Indian                 CFR section 49.11. EPA is continuing to evaluate air
                                                                                                                                                                  an area is being reclassified. With regard
                                                  country geographically located in the                   quality issues throughout Indian country located in     to the Indian country at issue in this
                                                  nonattainment areas that are the subject                these nonattainment areas. At this point, we do not     proposal, EPA has also taken into
                                                  of the State’s reclassification request,                believe that it is necessary or appropriate to          account other factors. For example, the
                                                                                                          promulgate an RFP, attainment, or RACT FIP for
                                                  consistent with EPA’s discretionary                     any of the Indian country areas located within the
                                                                                                                                                                  likelihood of attainment by the
                                                  authority in CAA sections 301(a) and                    four nonattainment areas. EPA intends to consult        applicable deadline under the current
                                                  301(d)(4) to directly administer CAA                    with the relevant Indian tribes regarding this issue.   classification is an appropriate


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                                                  consideration for reclassifying Indian                  2013 (i.e., nine years from the effective             for an attainment date well beyond the
                                                  country within the larger nonattainment                 date of designation). The San Joaquin                 date applicable under the current
                                                  areas.13 If EPA believes it is likely that              Valley Unified Air Pollution Control                  classification, we propose to reclassify
                                                  a given ozone nonattainment area will                   District’s San Joaquin Valley 2007                    the Indian country areas within the San
                                                  not attain the ozone NAAQS by the                       Ozone Plan (April 30, 2007) (‘‘2007                   Joaquin Valley nonattainment area to
                                                  applicable attainment date, then it may                 Ozone Plan’’) contains information on                 ‘‘extreme.’’
                                                  be an additional reason why it is                       current ozone levels, emissions trends,                  South Coast. For South Coast under
                                                  appropriate to maintain a uniform                       and the attainment strategy, and                      the current classification (‘‘severe-17’’),
                                                  classification within the area and thus                 provides a basis for assessing the                    the 8-hour ozone NAAQS attainment
                                                  to reclassify the Indian country                        likelihood of attainment prior to June                date is as expeditious as practicable but
                                                  consistent with the State’s request for                 15, 2013.                                             not later than June 15, 2021 (i.e., 17
                                                  the portion of the area within State                       The 2007 Ozone Plan describes the                  years from the effective date of
                                                  jurisdiction. On the other hand, if                     meteorological and topographic factors                designation). We have reviewed the
                                                  meeting the attainment date were still a                that exacerbate ozone conditions within               South Coast Air Quality Management
                                                  reasonable possibility, then it                         San Joaquin Valley and that make efforts              District’s Final 2007 Air Quality
                                                  conceivably may be appropriate for EPA                  to improve air quality particularly                   Management Plan (June 2007) (‘‘2007
                                                  to decide to defer reclassification of                  challenging. It shows that current ozone              AQMP’’) for information on current
                                                  Indian country notwithstanding the                      levels are well above the NAAQS at                    ozone levels, emissions trends, and the
                                                  State’s request for reclassification of the             many locations within the Valley. It                  attainment strategy to assess the
                                                  portion of the nonattainment area                       projects, based on the results of                     likelihood of attainment prior to June
                                                  subject to State Clean Air Act programs                 photochemical modeling, that                          15, 2021.
                                                  and notwithstanding the generally                       attainment of the 8-hour ozone NAAQS                     The 2007 AQMP describes current
                                                  weighty considerations discussed above                  throughout the Valley will require an                 ozone conditions and the magnitude of
                                                  that support the retention of a single                  additional decrease from existing levels              the emissions reductions that would be
                                                  uniformly-classified nonattainment area                 of 75% in NOX emissions. Most of these                needed to attain the ozone NAAQS.
                                                  as opposed to the creation of islands of                reductions are expected to occur from                 Despite an extensive array of measures
                                                  differently-classified nonattainment                    regulatory measures already adopted or                already adopted and implemented to
                                                  areas within the larger nonattainment                   expected to be adopted in the relatively              reduce stationary, area and mobile
                                                  area. Depending on the circumstances,                   near future, but the emissions                        emissions sources, the plan’s modeling
                                                  other factors may also provide                          reductions benefits from many of the                  analysis projects that the South Coast
                                                  justifications for refraining from                      measures, particularly those related to               would still need to reduce emissions by
                                                  reclassifying Indian country in                         mobile sources, rely on vehicle turnover              approximately 120 tons per year of VOC
                                                  conjunction with granting a State’s                     and thus take years to reach their full               and 400 tons per year of NOX from new
                                                  request for voluntary reclassification of               potential. Thus, based on the                         measures to attain the standard. Given
                                                  State lands in the same nonattainment                   information currently available, it                   the extent to which sources have
                                                  area.                                                   appears likely that the area will not                 already been regulated in the South
                                                     With respect to the areas that are the               attain by June 15, 2013.                              Coast, the 2007 AQMP relies on new
                                                  subject of this proposed action, we have                   The State has requested                            and advanced control technologies,
                                                  evaluated the likelihood of attainment                  reclassification of San Joaquin Valley to             referred to as ‘‘black box’’ measures, to
                                                  by the area’s existing attainment                       ‘‘extreme,’’ which would extend the 8-                reach the lower level of emissions
                                                  deadline, based on information that is                  hour ozone NAAQS attainment date by                   needed for attainment, and such
                                                  currently available. This evaluation was                11 years to no later than June 15, 2024.              measures necessarily require more lead
                                                  aided by the fact that CARB has already                 The plan indicates that attainment by                 time than control technologies already
                                                  submitted attainment demonstrations                     June 15, 2019, the attainment date for                in use. Thus, based on the information
                                                  for these four areas that are intended to               the next higher classification (i.e.,                 currently available, it appears likely that
                                                  support later attainment dates under a                  ‘‘severe-15’’), is also unlikely given the            additional time beyond 2021 will be
                                                  new, higher classification. In the                      magnitude of emissions reductions                     necessary to attain the standard.15
                                                  discussion that follows, EPA is not                     needed for attainment and the reliance                   The State has requested
                                                  determining which new attainment date                   on vehicle turnover.14 In addition, it                reclassification of South Coast to the
                                                  is as expeditious as practicable nor                    highlights the need for the highest level             next higher level, i.e., to ‘‘extreme,’’
                                                  whether these demonstrations are                        of air pollution control to attain the                which would extend the 8-hour ozone
                                                  approvable.                                             ozone NAAQS within the Valley, and                    NAAQS attainment date by 3 years to no
                                                     San Joaquin Valley. For San Joaquin                  for ozone, the highest level of control is            later than June 15, 2024. In light of the
                                                  Valley under the current classification                 triggered by a classification of                      considerations outlined above that
                                                  (‘‘serious’’), the 8-hour ozone NAAQS                   ‘‘extreme.’’ Therefore, in light of the               support retention of a uniformly-
                                                  attainment date is as expeditious as                    considerations outlined above that                    classified ozone nonattainment area,
                                                  practicable but not later than June 15,                 support retention of a uniformly-                     and the information supporting an
                                                                                                          classified ozone nonattainment area,                  attainment date beyond the date
                                                    13 In this action, we are not reconsidering the       and additional circumstances arguing                  applicable under the current
                                                  boundaries of the nonattainment areas for the 1-                                                              classification, we propose to reclassify
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                                                  hour ozone NAAQS and the 1997 8-hour ozone                14 EPA has not yet taken action on the 2007

                                                  NAAQS, but we expect to continue to discuss             Ozone Plan, which was submitted to EPA on               15 The 2007 AQMP was submitted to EPA on
                                                  boundary issues with Tribes that have expressed         November 17, 2007 by the State of California as a     November 28, 2007 as a revision to the California
                                                  concerns about their inclusion within large             revision to the California SIP. We will take action   SIP. EPA is not making a determination in this
                                                  nonattainment areas. To date, such Tribes include       on the 2007 Ozone plan in a separate rulemaking.      document as to whether the plan provides for
                                                  the Morongo Band of Mission Indians and the             When we do take action on the plan, EPA will make     expeditious attainment and meets the other
                                                                            ˜
                                                  Pechanga Band of Luiseno Mission Indians whose          a determination as to whether the plan provides for   requirements for RFP, attainment, and contingency
                                                  concerns relate to their inclusion within the South     expeditious attainment and meets the other            measures (and other measures required under the
                                                  Coast Air Basin. These two tribes have recently         requirements for RFP, attainment, and contingency     extreme classification) but will do so in a separate
                                                  submitted boundary redesignation requests to EPA        measures (and other measures required under the       rulemaking when we take action on the 2007 AQMP
                                                  for which EPA is considering appropriate action.        extreme classification).                              as required under the CAA.



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                                                                        Federal Register / Vol. 74, No. 165 / Thursday, August 27, 2009 / Proposed Rules                                            43661

                                                  the Indian country areas within the                        The 2008 Sacramento Ozone Plan                       applicable ‘‘major source’’ thresholds
                                                  South Coast to ‘‘extreme.’’                             presents emissions inventories for                      because the thresholds for the purposes
                                                     Coachella Valley. For Coachella                      existing conditions and projects                        of NSR and Title V that had applied by
                                                  Valley under the current classification                 baseline emissions for various future                   virtue of the areas’ classifications under
                                                  (‘‘serious’’), the 8-hour ozone NAAQS                   years. These inventories show that                      the 1-hour ozone standard continue to
                                                  attainment date is as expeditious as                    mobile sources (on-road and non-road)                   apply as anti-backsliding measures
                                                  practicable but not later than June 15,                 contribute approximately 60% of the                     under the 8-hour standard (see South
                                                  2013 (i.e., nine years from the effective               total VOC and 90% of the total NOX in                   Coast Air Quality Management Dist. v.
                                                  date of designation). We have reviewed                  this nonattainment area. Given the                      EPA, 472 F.3d 882 (D.C. Cir. 2006)
                                                  chapter 8 (‘‘Future Air Quality—Desert                  predominance of mobile source                           rehearing denied 489 F.3d 1245
                                                  Nonattainment Areas’’) of the South                     emissions in the overall inventory, the                 (clarifying that the vacatur was limited
                                                  Coast Air Quality Management District’s                 plan concludes that the region needs to                 to the issues on which the court granted
                                                  Final 2007 Air Quality Management                       rely on the longer term emission                        the petitions for review)), and the new
                                                  Plan (June 2007) (‘‘2007 AQMP’’) for                    reductions strategies from state and                    8-hour ozone classification for each of
                                                  information on current ozone levels,                    federal mobile source control programs                  the four subject areas, as reclassified,
                                                  emissions trends, and the likelihood of                 and that, as a result, the 2013 attainment              would be the same as the area’s
                                                  attainment prior to June 15, 2013.                      date cannot be met.17                                   corresponding 1-hour ozone
                                                     The 2007 AQMP describes the nature                      The State has requested                              classification (see Table 1 of this
                                                  of the ozone problem in Coachella                       reclassification of Sacramento Metro to                 document).
                                                  Valley as primarily a function of                       the next higher level, i.e., to ‘‘severe-                  EPA implements NSR in Indian
                                                  transport of ozone and ozone precursors                 15,’’ which would extend the 8-hour                     country areas located within designated
                                                  in the Valley from the upwind South                     ozone NAAQS attainment date by 6                        nonattainment areas unless EPA has
                                                  Coast. The modeling analysis conducted                  years to no later than June 15, 2019. In                approved an NSR program for such
                                                  for the 2007 AQMP shows a gradual                       light of the considerations outlined                    areas. Where EPA is the implementing
                                                  decline in ozone concentrations in the                  above that support retention of a                       agency, EPA implements NSR through
                                                  wake of declining emissions in the                      uniformly-classified ozone                              promulgation of a Federal
                                                  South Coast, but indicates that the pace                nonattainment area and the information                  Implementation Plan (FIP) establishing
                                                  of the reductions would not result in                   supporting an attainment date beyond                    an NSR program in a given Indian
                                                  ozone concentrations that meet the                      the date applicable under the current                   country area. EPA has not promulgated
                                                  NAAQS until after 2013.16                               classification, we propose to reclassify                an NSR FIP for any of the areas of
                                                     The State has requested                              the Indian country areas within                         Indian country in the four subject
                                                  reclassification of Coachella Valley to                 Sacramento Metro to ‘‘severe-15.’’                      nonattainment areas. EPA could
                                                  the next higher level, i.e., to ‘‘severe-                                                                       promulgate an NSR FIP for any given
                                                  15,’’ which would extend the 8-hour                     3. Effects of Reclassifications on Indian
                                                                                                                                                                  Indian country area within the four
                                                  ozone NAAQS attainment date by 6                        Tribes
                                                                                                                                                                  subject nonattainment areas if a new or
                                                  years to no later than June 15, 2019. In                   For the Tribes whose Indian country                  modified major stationary source were
                                                  light of the considerations outlined                    lies within the four subject                            to locate within these areas, but such a
                                                  above that support retention of a                       nonattainment areas, the effect of                      FIP would be based on the same major
                                                  uniformly-classified ozone                              reclassification would be to lower the de               source applicability thresholds
                                                  nonattainment area and the information                  minimis threshold under EPA’s General                   regardless of whether the Indian country
                                                  supporting an attainment date beyond                    Conformity rule (40 CFR part 53,                        areas are reclassified, as explained
                                                  the date applicable under the current                   subpart B) as described above in section                above.
                                                  classification, we propose to reclassify                II.E of this document. As also noted in                    On August 21, 2006 (71 FR 48696),
                                                  the Indian country areas within                         section II.E of this document, under                    EPA proposed a FIP that would extend
                                                  Coachella Valley to ‘‘severe-15.’’                      EPA’s General Conformity rule, Federal                  Appendix S (‘‘Emission Offset
                                                     Sacramento Metro. For Sacramento                     agencies bear the responsibility of                     Interpretive Ruling’’) in 40 CFR part 51
                                                  Metro under the current classification                  determining conformity of actions in                    to Indian country within nonattainment
                                                  (‘‘serious’’), the 8-hour ozone NAAQS                   nonattainment and maintenance areas                     areas until replaced by an EPA-
                                                  attainment date is as expeditious as                    that require Federal permits, approvals,                approved NSR implementation plan for
                                                  practicable but not later than June 15,                 or funding. Such permits, approvals or                  a given area of Indian country.
                                                  2013 (i.e., nine years from the effective               funding by Federal agencies for projects                Extension of Appendix S to Indian
                                                  date of designation). We have reviewed                  in these areas of Indian country may be                 country would alleviate the potential
                                                  the Sacramento Regional 8-Hour Ozone                    more difficult to attain because of the                 necessity for EPA to promulgate area-
                                                  Attainment and Reasonable Further                       lower de minimis thresholds.                            specific NSR FIPs for Indian country
                                                  Progress Plan (December 19, 2008)                          With respect to review of new or                     located within the four subject
                                                  (‘‘2008 Sacramento Ozone Plan’’) for                    modified major stationary sources                       nonattainment areas. Please refer to our
                                                  information on current ozone levels,                    (‘‘new source review’’) and Title V                     August 21, 2006 proposed rule for a
                                                  emissions trends, and the likelihood of                 operating permits, the proposed                         detailed explanation of NSR in
                                                  attainment prior to June 15, 2013.                      reclassifications would not lower the                   nonattainment areas of Indian country
                                                                                                                                                                  (71 FR 48696, at 48718–48719). Until
                                                                                                                                                                  EPA finalizes action to extend
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                                                     16 The Coachella Valley 8-hour ozone plan is            17 The 2008 Sacramento Ozone Plan was

                                                  included within the 2007 AQMP, which was                submitted to EPA on April 17, 2009 as a revision        Appendix S to Indian country, EPA may
                                                  submitted to EPA on November 28, 2007 as a              to the California SIP. EPA is not making a
                                                  revision to the California SIP. EPA is not making       determination in this document as to whether the
                                                                                                                                                                  find it necessary or appropriate to
                                                  a determination in this document as to whether the      plan provides for expeditious attainment and meets      promulgate area-specific NSR FIPs for
                                                  plan provides for expeditious attainment and meets      the other requirements for RFP, attainment, and         Indian country within the four subject
                                                  the other requirements for RFP, attainment, and         contingency measures (and other measures required       nonattainment areas, depending upon
                                                  contingency measures (and other measures required       under the severe-15 classification) but will do so in
                                                  under the severe-15 classification) but will do so in   a separate rulemaking when we take action on the
                                                                                                                                                                  the emissions potential of any proposed
                                                  a separate rulemaking when we take action on the        2008 Sacramento Ozone Plan as required under the        new or modified stationary sources in
                                                  2007 AQMP as required under the CAA.                    CAA.                                                    these Indian country areas.


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                                                  43662                     Federal Register / Vol. 74, No. 165 / Thursday, August 27, 2009 / Proposed Rules

                                                  C. Setting Deadlines for Submitting SIP                         submission deadlines for the areas and
                                                  Revisions                                                       SIP revisions shown in Table 3.18
                                                    For the reasons discussed below for
                                                  each area, we are proposing SIP

                                                                                                  TABLE 3—SUMMARY OF SIP REVISION SUBMITTAL DEADLINES
                                                                                                                 Proposed
                                                      8-Hour ozone nonattainment area                                                       8-Hour ozone SIP element                               Submittal due date
                                                                                                               classification

                                                  Coachella Valley .....................................   Severe-15 .............   CAA Section 185 fees ..........................   No later    than   12 months from the ef­
                                                                                                                                                                                         fective   date   of reclassification.
                                                  Sacramento Metro ..................................      Severe-15 .............   NSR     (Sacramento   Metropolitan                No later    than   12 months from the ef­
                                                                                                                                      AQMD, Placer County APCD, Feath­                   fective   date   of reclassification.
                                                                                                                                      er River AQMD only).
                                                                                                                                     CAA Section 185 fees (El Dorado                   No later than 12 months from the ef­
                                                                                                                                      County AQMD, Placer County                         fective date of reclassification.
                                                                                                                                      APCD, Feather River AQMD, and
                                                                                                                                      Yolo-Solano AQMD only).



                                                     San Joaquin Valley. As noted above in                        area consistent with reclassification                      section 185 fees requirement. EPA is
                                                  section II.D.2 of this document, CARB                           from ‘‘serious’’ to ‘‘severe-15.’’ CARB                    also proposing the same deadline for
                                                  has submitted SIP revisions addressing                          has not submitted new source review                        submittal of revisions to the Sacramento
                                                  all of the additional SIP requirements                          rules for certain air districts within the                 Metro area portion of the SIP to meet the
                                                  for San Joaquin Valley consistent with                          Sacramento Metro area consistent with                      following additional SIP requirements
                                                  reclassification from ‘‘serious’’ to                            the ‘‘severe-15’’ ozone classification.                    for ‘‘severe-15’’ areas: new source
                                                  ‘‘extreme.’’ EPA therefore is not                               EPA is proposing to establish a deadline                   review rules consistent with this
                                                  proposing a schedule for additional SIP                         of no later than 12 months from the                        classification (Sacramento Metropolitan
                                                  revisions in response to the                                    effective date of reclassification for                     AQMD, Placer County APCD, and
                                                  reclassification of this area.                                  submittal of revisions to the Sacramento                   Feather River AQMD only) and CAA
                                                     South Coast Air Basin. As noted                              Metro portion of the SIP that meet the                     section 185 fees (El Dorado County
                                                  above in section II.D.2 of this document,                       additional new source review                               AQMD, Placer County APCD, Feather
                                                  CARB has submitted SIP revisions                                requirements for a ‘‘severe-15’’ 8-hour                    River AQMD, and Yolo-Solano AQMD
                                                  addressing all of the additional SIP                            ozone nonattainment area for                               only). EPA has already received SIP
                                                  requirements for the South Coast Air                            Sacramento Metropolitan AQMD, Placer                       revision submittals addressing most of
                                                  Basin consistent with reclassification                          County APCD, and Feather River                             the additional SIP requirements for
                                                  from ‘‘severe-17’’ to ‘‘extreme.’’ EPA                          AQMD. CARB has also not submitted                          these two areas and has received all of
                                                  therefore is not proposing a schedule for                       SIP revisions addressing the CAA                           the related SIP revision submittals for
                                                  additional SIP revisions in response to                         section 185 fees requirement for four of                   San Joaquin Valley and the South Coast
                                                  the reclassification of this area.                              the five districts within the Sacramento                   Air Basin. EPA is not proposing a SIP
                                                     Coachella Valley. As noted above in                          Metro area, including El Dorado County                     revision schedule for any SIP
                                                  section II.D.2 of this document, CARB                           AQMD, Placer County APCD, Feather                          requirements for which SIP submittals
                                                  has submitted SIP revisions addressing                          River AQMD, and Yolo-Solano AQMD.                          have already been received.
                                                  all of the additional SIP requirements                          EPA is proposing the same deadline for                        Finally, consistent with our
                                                  for Coachella Valley consistent with                            the CAA section 185 fees requirement as                    discretionary authority under CAA
                                                  reclassification from ‘‘serious’’ to                            for the ‘‘severe-15’’ NSR requirement                      sections 301(a) and 301(d)(4), we
                                                  ‘‘severe-15,’’ except for the major                             discussed above.                                           propose to similarly reclassify Indian
                                                  stationary source fees requirement                                                                                         country within the four areas consistent
                                                  under CAA section 185. EPA is                                   IV. Proposed Action and Request for
                                                                                                                  Public Comment                                             with the reclassification requests for the
                                                  proposing to establish a deadline of no                                                                                    surrounding non-Indian country lands
                                                  later than 12 months from the effective                           Pursuant to CAA section 181(b)(3)                        and have invited consultation with
                                                  date of reclassification for submittal of                       and 40 CFR 51.903(b), EPA proposes to                      interested tribes concerning this issue.
                                                  a revision to the Coachella Valley                              grant the following reclassification                       We note that although eligible tribes
                                                  portion of the SIP that meets the major                         requests by the State of California: the                   may seek EPA approval of relevant
                                                  stationary source fees requirement                              San Joaquin Valley area from ‘‘serious’’                   tribal programs under the CAA, none of
                                                  under CAA section 185.                                          to ‘‘extreme’’; the South Coast Air Basin                  the affected tribes will be required to
                                                     Sacramento Metro. As noted above in
                                                                                                                  area from ‘‘severe-17’’ to ‘‘extreme’’; and                submit an implementation plan to
                                                  section II.D.2 of this document, CARB
                                                                                                                  the Coachella Valley and Sacramento                        address these reclassifications.
                                                  has submitted SIP revisions addressing
                                                                                                                  Metro areas from ‘‘serious’’ to ‘‘severe-                     EPA requests public comment on this
                                                  all but two of the additional SIP
                                                                                                                  15,’’ and to change the table for 8-hour                   proposal.
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                                                  requirements for the Sacramento Metro
                                                                                                                  ozone in 40 CFR 81.305 accordingly.
                                                                                                                                                                             V. Statutory and Executive Order
                                                                                                                    In connection with the
                                                    18 The  deadlines proposed herein relate solely to                                                                       Reviews
                                                  specific additional requirements triggered by the               reclassifications, EPA is proposing to
                                                  reclassification for the 8-hour ozone NAAQS and                 establish a deadline of no later than 12                     Under Executive Order 12866 (58 FR
                                                  should not be interpreted as relieving an area of any           months from the effective date of                          51735, October 4, 1993), this proposed
                                                  existing obligation that the area has based on its 1-
                                                  hour ozone classification, or of existing obligations
                                                                                                                  reclassification for submittal of                          action is not a ‘‘significant regulatory
                                                  unrelated to attainment that are based on its current           revisions to the Coachella Valley                          action’’ and therefore is not subject to
                                                  8-hour ozone classification.                                    portion of the SIP to meet the CAA                         Executive Order 12866. Voluntary


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                                                                        Federal Register / Vol. 74, No. 165 / Thursday, August 27, 2009 / Proposed Rules                                           43663

                                                  reclassifications under section 181(b)(3)               impose substantial direct costs upon the              health or safety risks, such that the
                                                  of the CAA are based solely upon                        tribes, nor would it preempt Tribal law.              analysis required under section 5–501 of
                                                  requests by the State, and EPA is                       As discussed in section III.B.3 of this               the Executive Order has the potential to
                                                  required under the CAA to grant them.                   document, the proposed rule would not                 influence the regulation. This proposed
                                                  These actions do not, in and of                         affect implementation of new source                   action is not subject to Executive Order
                                                  themselves, impose any new                              review for new or modified stationary                 13045 because it grants a voluntary
                                                  requirements on any sectors of the                      sources proposed in the Indian country                reclassification, and EPA’s approval is
                                                  economy. In addition, because the                       areas proposed for reclassification, but              mandatory.
                                                  statutory requirements are clearly                      might affect projects proposed in these                  As discussed above, a voluntary
                                                  defined with respect to the differently                 areas that require Federal permits,                   reclassification under section 181(b)(3)
                                                  classified areas, and because those                     approvals, or funding. Such projects are              of the CAA is based solely on the
                                                  requirements are automatically triggered                subject to the requirements of EPA’s                  request of a State and EPA is required
                                                  by reclassification, reclassification does              General Conformity rule, and Federal                  to grant such a request. In this context,
                                                  not impose a materially adverse impact                  permits, approvals, or funding for the                it would be inconsistent with applicable
                                                  under Executive Order 12866. For this                   projects may be more difficult to attain              law for EPA, when it grants a State’s
                                                  reason, this proposed action is also not                because of the lower de minimis                       request for a voluntary reclassification,
                                                  subject to Executive Order 13211,                       thresholds triggered by reclassification.             to use voluntary consensus standards.
                                                  ‘‘Actions Concerning Regulations That                      Given the potential implications, EPA              Thus, the requirements of section 12(d)
                                                  Significantly Affect Energy Supply,                     contacted tribal officials early in the               of the National Technology Transfer and
                                                  Distribution, or Use’’ (66 FR 28355, May                process of developing this proposed rule              Advancement Act of 1995 (15 U.S.C.
                                                  22, 2001).                                              to provide an opportunity to have                     272 note) also do not apply. In addition,
                                                     In addition, I certify that this                     meaningful and timely input into its                  this proposed rule does not impose an
                                                  proposed rule will not have a significant               development. On July 31, 2008, we sent                information collection burden under the
                                                  economic impact on a substantial                        letters to leaders of the 21 tribes with              provisions of the Paperwork Reduction
                                                  number of small entities under the                      Indian country areas in the four subject              Act of 1995 (44 U.S.C. 3501 et seq.).
                                                  Regulatory Flexibility Act (5 U.S.C. 601                nonattainment areas seeking their input                  Executive Order 12898 (59 FR 7629,
                                                  et seq.), and that this proposed rule does              on how we could best communicate                      February 16, 1994) establishes federal
                                                  not contain any unfunded mandate or                     with the tribes on the rulemaking effort.             executive policy on environmental
                                                  significantly or uniquely affect small                  We received responses from nine tribes,               justice. Its main provision directs
                                                  governments, as described in the                        of whom four indicated interest in face-              federal agencies, to the greatest extent
                                                  Unfunded Mandates Reform Act of 1995                    to-face meetings, as one of several                   practicable and permitted by law, to
                                                  (Pub. L. 104–4), because EPA is required                means of communication. We have met                   make environmental justice part of their
                                                  to grant requests by states for voluntary               with two tribes that sought specific                  mission by identifying and addressing,
                                                  reclassifications and such                              meetings on the reclassifications:                    as appropriate, disproportionately high
                                                  reclassifications in and of themselves do                                          ˜
                                                                                                          Pechanga Band of Luiseno Mission                      and adverse human health or
                                                  not impose any federal                                  Indians and Morongo Band of Mission                   environmental effects of their programs,
                                                  intergovernmental mandate.                              Indians. We propose to continue with                  policies, and activities on minority
                                                     Executive Order 13175, (65 FR 67249,                 this process of communicating with the                populations and low-income
                                                  November 6, 2000), requires EPA to                      tribes until we promulgate the final rule.            populations in the United States. As
                                                  develop an accountable process to                       EPA specifically solicits additional                  stated earlier in this proposed rule, EPA
                                                  ensure ‘‘meaningful and timely input by                 comment on this proposed rule from                    is proposing action granting the State’s
                                                  tribal officials in the development of                  tribal officials.                                     requests for voluntary reclassifications.
                                                  regulatory policies that have tribal                       This proposed action also does not                 The plain language of section 181(b)(3)
                                                  implications.’’ ‘‘Policies that have Tribal             have Federalism implications because it               of the CAA mandates that we ‘‘shall’’
                                                  implications’’ is defined in the                        does not have substantial direct effects              approve such a request if it is made in
                                                  Executive Order to include regulations                  on the States, on the relationship                    accordance with the requirements of the
                                                  that have ‘‘substantial direct effects on               between the national government and                   Act, and, as such, does not provide the
                                                  one or more Indian Tribes, on the                       the States, or on the distribution of                 Agency with the discretionary authority
                                                  relationship between the Federal                        power and responsibilities among the                  to address concerns raised outside the
                                                  government and the Indian Tribes, or on                 various levels of government, as                      Act, including those contained in
                                                  the distribution of power and                           specified in Executive Order 13132 (64                Executive Order 12898.
                                                  responsibilities between the Federal                    FR 43255, August 10, 1999). This
                                                  government and Indian Tribes.’’                         proposed action does not alter the                    List of Subjects in 40 CFR Part 81
                                                     Several Indian tribes have Indian                    relationship or the distribution of power               Environmental protection, Air
                                                  country located within the boundaries                   and responsibilities established in the               pollution control, Intergovernmental
                                                  of the four subject ozone nonattainment                 CAA.                                                  relations, National parks, Ozone,
                                                  areas. EPA implements federal Clean                        This proposed rule also is not subject             Wilderness areas.
                                                  Air Act programs, including                             to Executive Order 13045 ‘‘Protection of
                                                  reclassifications, in these areas of Indian             Children from Environmental Health                      Dated: August 18, 2009.
                                                  country. EPA has concluded that this                    Risks and Safety Risks’’ (62 FR 19885,                Laura Yoshii,
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                                                  proposed rule might have tribal                         April 23, 1997), because EPA interprets               Acting Regional Administrator, Region IX.
                                                  implications for the purposes of                        Executive Order 13045 as applying only                [FR Doc. E9–20732 Filed 8–26–09; 8:45 am]
                                                  Executive Order 13175, but would not                    to those regulatory actions that concern              BILLING CODE 6560–50–P




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