[Federal Register Volume 86, Number 66 (Thursday, April 8, 2021)]
[Proposed Rules]
[Pages 18227-18232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07223]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R09-OAR-2021-0148; FRL-10022-15-Region 9]


Designation of Areas for Air Quality Planning Purposes; 
California; San Diego County Ozone Nonattainment Area; Reclassification 
to Severe

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Under the Clean Air Act (CAA or Act), the Environmental 
Protection Agency (EPA) is proposing to approve a request from the 
State of California to reclassify the San Diego County ozone 
nonattainment area from ``Serious'' to ``Severe'' for the 2008 ozone 
National Ambient Air Quality Standards (NAAQS) and from ``Moderate'' to 
``Severe'' for the 2015 ozone NAAQS. Following consultation with 
tribes, the EPA is also proposing to reclassify in the same manner as 
state land, reservation areas of Indian country and any other area of 
Indian country within it where the EPA or a tribe has demonstrated that 
the tribe has jurisdiction located within the boundaries of the San 
Diego County ozone nonattainment area. Upon final reclassification of 
the San Diego County ozone nonattainment area as a Severe area for the 
2008 and 2015 ozone NAAQS, the applicable attainment dates would be as 
expeditious as practicable but no later than July 20, 2027, for the 
2008 ozone NAAQS, and August 3, 2033, for the 2015 ozone NAAQS. With 
respect to Severe state implementation plan (SIP) element submittal 
dates that have passed, the EPA is proposing to establish a deadline of 
no later than 12 months from the effective date of reclassification for 
submittal of revisions to the San Diego County portion of the 
California SIP to meet additional requirements for Severe ozone 
nonattainment areas to the extent that such revisions have not already 
been submitted.

DATES: Any comments on this proposal must arrive by May 10, 2021.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-
R09-OAR-2021-0148, at http://www.regulations.gov. For comments 
submitted at Regulations.gov, follow the online instructions for 
submitting comments. Once submitted, comments cannot be edited or 
removed from Regulations.gov. The EPA may publish any comment received 
to its public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, or if you need assistance 
in a language other than English or if you are a person with 
disabilities who needs a reasonable accommodation at no cost to you, 
please contact the person identified in the FOR FURTHER INFORMATION 
CONTACT section. For the full EPA public comment policy, information 
about CBI or multimedia submissions, and general guidance on making 
effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: T. Khoi Nguyen, Air Planning Office 
(AIR-2), EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105, 
(415) 947-4120, or by email at nguyen.thien@epa.gov.

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

Table of Contents

I. Reclassification as Severe Nonattainment and Severe Area SIP 
Requirements
    A. Reclassification as Severe and Applicable Attainment Dates
    B. Clean Air Act Requirements for Severe Ozone Nonattainment 
Area Plans
II. Reclassification of Areas of Indian Country
III. Summary of Proposed Action and Request for Public Comment
IV. Statutory and Executive Order Reviews

I. Reclassification as Severe Nonattainment and Severe Area SIP 
Requirements

A. Reclassification as Severe and Applicable Attainment Dates

    Effective July 20, 2012, the EPA designated and classified the San 
Diego County nonattainment area in California under the CAA as 
``Marginal'' nonattainment for the 2008 ozone NAAQS.\1\ The San Diego 
County ozone nonattainment area included 18 tribal reservations located 
within the geographic boundary of the county. Our classification of San 
Diego County as a Marginal ozone nonattainment area established a 
requirement that the area attain the 2008 ozone NAAQS as expeditiously 
as practicable, but no later than three years from the date of 
designation as nonattainment, i.e., July 20, 2015. In May 2016, the EPA 
determined that San Diego County failed to attain the 2008 ozone NAAQS 
by the Marginal attainment date and

[[Page 18228]]

reclassified the area from Marginal to Moderate, with an attainment 
date of not later than July 20, 2018.\2\ In August 2019, the EPA 
determined that San Diego County failed to attain the 2008 ozone NAAQS 
by the Moderate attainment date, and reclassified the area from 
Moderate to Serious, with an attainment date of not later than July 20, 
2021.\3\
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    \1\ 77 FR 30088 (May 21, 2012). The 2008 ozone NAAQS is 0.075 
parts per million (ppm), daily maximum 8-hour average. The 2008 
ozone NAAQS is met at an ambient air quality monitoring site when 
the 3-year average of the annual fourth-highest daily maximum 8-hour 
average ozone concentration is less than or equal to 0.075 ppm. See 
40 CFR 50.15.
    \2\ 81 FR 26697 (May 4, 2016).
    \3\ 84 FR 44238 (August 23, 2019).
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    Additionally, effective August 3, 2018, the EPA designated and 
classified the San Diego County nonattainment area in California under 
the CAA as ``Moderate'' nonattainment for the 2015 ozone NAAQS.\4\ 
Consistent with the area designation for the 2008 ozone NAAQS, the San 
Diego County ozone nonattainment area for the 2015 ozone NAAQS included 
18 tribal reservations located within the geographic boundary of the 
county. Our classification of San Diego County as a Moderate ozone 
nonattainment area established a requirement that the area attain the 
2015 ozone NAAQS as expeditiously as practicable, but no later than six 
years from the date of designation as nonattainment, i.e., August 3, 
2024.
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    \4\ 83 FR 25776 (June 4, 2018). The 2015 ozone NAAQS is 0.070 
ppm, daily maximum 8-hour average. The 2015 ozone NAAQS is met at an 
ambient air quality monitoring site when the 3-year average of the 
annual fourth-highest daily maximum 8-hour average ozone 
concentration is less than or equal to 0.070 ppm. See 40 CFR 50.19.5
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    On January 12, 2021, the California Air Resources Board (CARB) 
submitted a request to the EPA seeking a voluntary reclassification of 
San Diego County.\5\ CARB requested that the EPA reclassify San Diego 
County from Serious to Severe for the 2008 ozone NAAQS and from 
Moderate to Severe for the 2015 ozone NAAQS.\6\ The State requested 
reclassification to Severe, rather than Serious, based on air quality 
modeling results that demonstrate that the most expeditious attainment 
dates for ozone corresponded with the attainment dates for areas 
classified as Severe for the 2008 and 2015 ozone NAAQS.
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    \5\ Letter dated January 8, 2021, from Richard W. Corey, 
Executive Officer, CARB, to John Busterud, Regional Administrator, 
EPA Region IX (submitted electronically January 12, 2021).
    \6\ Throughout this document, we use ``Severe'' as the 
terminology for the proposed classification, referring to Severe 
areas that have 15 years to attain the ozone standards. If the 
proposed action is finalized, the ozone area designation tables in 
40 CFR part 81 will specify ``Severe-15'' to distinguish the 
classification from ``Severe-17''.
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    We are proposing to approve CARB's reclassification request under 
section 181(b)(3) of the Act, which provides for ``voluntary 
reclassification'' because the plain language of section 181(b)(3) 
mandates that we approve such a request. Upon final reclassification, 
the applicable attainment dates will be as expeditiously as 
practicable, but no later than fifteen years from the date of 
designation as nonattainment, i.e., July 20, 2027 for the 2008 ozone 
NAAQS and August 3, 2033 for the 2015 ozone NAAQS.

B. Clean Air Act Requirements for Severe Ozone Nonattainment Area Plans

1. Severe Area Plan Requirements
    Under CAA section 182(d), an attainment plan for a Severe area must 
include the elements required for a Serious area as well as additional 
plan elements for a Severe area. Where applicable, the plan elements 
should reflect the reduction of the major source threshold under 
section 182(d) to 25 tons per year for a Severe area. The requirements 
for a Severe area plan include, but are not limited to: (1) Base year 
emissions inventory (CAA sections 172(c)(3) and 182(a)(1)); (2) an 
emissions statement rule (CAA section 182(a)(3)(B)); (3) New Source 
Review (NSR) (CAA sections 172(c)(5), 173, 182(a)(2)(C), 182(d) and 
182(d)(2)); (4) additional reasonably available control technology 
(RACT) rules to address sources subject to the lower Severe area major 
source threshold (CAA section 182(b)(2)); (5) reasonably available 
control measures (RACM) (CAA section 172(c)(1)); (6) attainment 
demonstration (CAA sections 172(c)(1) and 182(c)(2)(A)); (7) a 
reasonable further progress (RFP) demonstration showing ozone precursor 
reductions of at least 3 percent per year until the attainment date 
(CAA sections 172(c)(2), 182(b)(1), 182(c)(2)(B)); (8) contingency 
measures (CAA sections 172(c)(9) and 182(c)(9)); (9) vehicle inspection 
& maintenance (CAA section 182(c)(3)); (10) Clean Fuels Fleet program 
(CAA sections 182(c)(4)(A) and 246); (11) enhanced ambient air 
monitoring (CAA section 182(c)(1)); (12) transportation control 
strategies and measures to offset emissions increases from vehicle 
miles traveled (CAA section 182(d)(1)(A)); and (13) CAA Section 185 Fee 
Program (CAA sections 182(d)(3) and 185).
    As noted previously, on January 12, 2021, CARB submitted a request 
to the EPA seeking a voluntary reclassification of the San Diego County 
ozone nonattainment area from Serious to Severe for the 2008 ozone 
NAAQS and from Moderate to Severe for the 2015 ozone NAAQS. In addition 
to this request, the State also submitted, as a revision to the San 
Diego County portion of the California SIP, the plan adopted by the San 
Diego County Air Pollution Control District (SDCAPCD or ``District'') 
intended to address all the applicable requirements for the 2008 and 
2015 ozone NAAQS for the San Diego County ozone nonattainment area as a 
Severe ozone nonattainment area, other than RACT and the Section 185 
Fee Program.\7\ On December 29, 2020, CARB submitted a SIP revision 
intended to address the Severe Area RACT requirement for the San Diego 
County ozone nonattainment area for the 2008 and 2015 ozone NAAQS.\8\
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    \7\ SDCAPCD, ``2020 Plan for Attaining the National Ambient Air 
Quality Standards for Ozone in San Diego County'' (October 2020).
    \8\ Letter dated December 28, 2020, from Richard W. Corey, 
Executive Officer, CARB, to John W. Busterud, Regional 
Administrator, EPA Region IX (submitted electronically December 29, 
2020), with attachments, including SDCAPCD's 2020 Reasonably 
Available Control Technology Demonstration for the National Ambient 
Air Quality Standards for Ozone in San Diego County (October 2020).
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    We have reviewed the two SIP revisions submitted by CARB to address 
the Severe area requirements for the San Diego County ozone 
nonattainment area for the 2008 and 2015 ozone NAAQS (other than the 
Section 185 Fee Program) and find that the revisions address the 
applicable requirements.\9\ However, we have not yet determined that 
either SIP submittal is complete under CAA section 110(k)(1)(B), and 
thus, we are proposing a schedule for submittal (as described in detail 
below) of SIP revisions to address applicable SIP requirements if, and 
to the extent, we ultimately find the two SIP revisions incomplete. For 
the Section 185 Fee Program in San Diego County, if the area is 
reclassified to Severe, the applicable SIP submittal deadline would be 
July 20, 2022, for the 2008 ozone NAAQS and August 3, 2028, for the 
2015 ozone NAAQS.\10\
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    \9\ See EPA Region IX, Memorandum to File EPA-R09-OAR-2021-0148, 
dated March 19, 2021 for our review of the San Diego County 2020 
ozone plan.
    \10\ See 40 CFR 51.1117 and 40 CFR 51.1317.
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    For areas initially designated Severe, the CAA and the EPA's ozone 
SIP Requirements Rules (SRR) for the 2008 and 2015 ozone NAAQS \11\ 
generally provide, depending on the element, up to four years from the 
date of designation to submit the required SIP elements to the EPA. The 
statutory deadline for all SIP submissions for areas initially 
designated as Severe for the 2008 ozone NAAQS was July 20, 2016 
(excluding the Section 185 Fee Program). The statutory deadlines for 
SIP submissions for areas initially designated as Severe for the 2015 
ozone NAAQS vary from two to four years

[[Page 18229]]

(excluding the Section 185 Fee Program). The RFP and attainment 
demonstrations, among other SIP elements, for the 2015 ozone NAAQS are 
due on August 3, 2022.
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    \11\ The EPA promulgated the SRR for the 2008 and 2015 ozone 
NAAQS at 40 CFR part 52, subpart AA and subpart CC, respectively.
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    Under its general CAA section 301(a) authority and with respect to 
all SIP requirements for which the SIP submittal deadlines have passed, 
the EPA is proposing to establish a new deadline of 12 months from the 
effective date of the final action for this reclassification for the 
State to submit SIP revisions addressing the Severe area requirements 
for San Diego County for the 2008 ozone NAAQS if, and to the extent 
that, the EPA finds the two SIP revisions that have already been 
submitted are incomplete. This timeframe is consistent with how the EPA 
has established SIP submission deadlines under CAA section 182(i) for 
ozone areas reclassified by operation of law under CAA section 
181(b)(2).\12\ The EPA has also considered that for pollutants other 
than ozone, the CAA provides 12 months for states to submit revised 
attainment demonstrations when an area fails to attain by its 
attainment date.\13\ This timeframe generally allows for the time 
necessary for states and local air districts to finish reviews of 
available control measures, adopt revisions to necessary attainment 
strategies, address other SIP requirements, and complete the public 
notice process necessary to adopt and submit timely SIP revisions.
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    \12\ See, e.g., 85 FR 2311 (January 15, 2020) (Coachella Valley, 
California reclassification to Extreme for the 1997 ozone NAAQS); 75 
FR 79302 (Dec. 20, 2010) (Dallas-Ft. Worth, Texas, reclassification 
to Serious for the 1997 ozone NAAQS); 69 FR 16483 (March 30, 2004) 
(Beaumont-Port Arthur, Texas, reclassification to Serious for the 
1979 1-hour ozone NAAQS); 68 FR 4836 (Jan. 30, 2003) (St. Louis, 
Missouri, reclassification to Serious for the 1979 1-hour ozone 
NAAQS).
    \13\ See CAA section 179(d)(1) (providing 12 months for a state 
to submit a new attainment demonstration after a determination that 
the area failed to attain by its attainment date).
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    To the extent SIP revisions are required to address Severe area 
requirements for which the SIP submittal deadlines have not passed, the 
deadlines from our SRRs for the 2008 and 2015 ozone NAAQS would 
continue to apply. For instance, upon final reclassification, the 
August 3, 2022 deadline \14\ would continue to apply for the RFP and 
attainment demonstrations for the 2015 ozone NAAQS, if the EPA finds 
the relevant SIP revision already submitted are incomplete.\15\ In 
addition, as noted previously, the Section 185 Fee Program SIP 
submittal would be due July 20, 2022, for the 2008 ozone NAAQS and 
August 3, 2028, for the 2015 ozone NAAQS.
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    \14\ 40 CFR 51.1308(b).
    \15\ With respect to implementation of RACT controls in 
reclassified areas, implementation is required as expeditiously as 
practicable, but no later than the start of the attainment year 
ozone season associated with the area's new attainment deadline, or 
January 1 of the third year after the associated SIP revision 
submittal deadline, whichever is earlier; or the deadline 
established by the Administrator in the final action issuing the 
area reclassification. See 40 CFR 51.1312(a)(3)(ii). In this 
instance, implementation of RACT would be required as expeditiously 
as practicable but no later than January 1, 2025, assuming that the 
final reclassification action is effective in calendar year 2021.
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2. NSR and Title V Program Revisions
    Typically, when we reclassify or approve a reclassification request 
to a higher ozone classification, the state must amend its NSR rules to 
reflect the lower NSR major source thresholds and higher NSR offset 
ratio corresponding to the higher classification. However, with respect 
to the San Diego County ozone nonattainment area, the District will not 
be required to amend its NSR rules upon reclassification to Severe 
because the version of the rules that the District adopted in 2019 and 
that the EPA approved in 2020 already include the Severe area major 
source thresholds and offset ratios.\16\ Such thresholds and ratios 
will apply upon the effective date of the reclassification to 
Severe.\17\ The District must also make any changes in its title V 
operating permits program for San Diego County necessary to reflect the 
change in the major source threshold to 25 tons per year for Severe 
areas. The rationale for the EPA's deadline of one year from the 
effective date of the final reclassification action is discussed in 
Section I.B.1.
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    \16\ We took final limited approval and limited disapproval of 
District Rules 20.1-20.4 (adopted by the District on June 26, 2019) 
at 85 FR 57727 (September 16, 2020). The basis for the limited 
disapproval was unrelated to the major source thresholds or offset 
ratios.
    \17\ See District Rule 20.1 (New Source Review--General 
Provisions), paragraphs (c)(29) (``Federal Major Modification'') and 
(c)(30) (``Federal Major Stationary Source''); and District Rule 
20.3 (New Source Review--Major Stationary Sources and PSD Stationary 
Sources), paragraph (d)(5)(ii) (Emissions Offsets).
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3. Federal Reformulated Gasoline
    Typically, effective one year after the reclassification of any 
ozone nonattainment area as a Severe ozone nonattainment area, such 
Severe area shall also be a ``covered area'' for purposes of 
reformulated gasoline (RFG).\18\ San Diego County is already a covered 
area for RFG, and as such, the use of RFG is currently required under 
the mobile source requirements in title II of the CAA and the 
implementing regulations at 40 CFR part 80, subpart D.\19\ RFG is 
gasoline blended to burn more cleanly than conventional gasoline and to 
reduce emissions of smog-forming and toxic pollutants in the air. 
California gasoline (California Phase III Reformulated Gasoline or 
``CaRFG3'') can also be used to satisfy federal RFG requirements 
because the EPA has approved CaRFG3 as an equivalent fuel formulation 
under CAA section 211(k)(4)(B). The RFG requirement will continue to 
apply within San Diego County upon reclassification to Severe.
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    \18\ See CAA section 211(k)(10)(D).
    \19\ See 40 CFR 80.70(b).
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II. Reclassification of Areas of Indian Country

    Because the State of California does not have jurisdiction over 
Indian country geographically located within the borders of the state, 
CARB's request to reclassify the San Diego County nonattainment area 
does not apply to Indian country under the jurisdiction of the tribes 
identified in 40 CFR 81.305. The EPA implements federal CAA programs, 
including reclassifications, in this area of Indian country consistent 
with our discretionary authority under sections 301(a) and 301(d)(4) of 
the CAA.
    When the EPA designated San Diego County as nonattainment for the 
2008 and 2015 ozone NAAQS, we included 18 federally recognized Tribal 
Nation reservations within the boundaries of the nonattainment area. 
These reservations include: Barona Group of Capitan Grande of Mission 
Indians of the Barona Reservation, Campo Band of Diegueno Mission 
Indians of the Campo Indian Reservation, Capitan Grande Band of 
Diegueno Mission Indians of California,\20\ Ewiiaapaayp Band of 
Kumeyaay Indians, Iipay Nation of Santa Ysabel, Inaja Band of Diegueno 
Mission Indians of the Inaja and Cosmit Reservation, Jamul Indian 
Village of California, La Jolla Band of Luiseno Indians, La Posta Band 
of Diegueno Mission Indians of the La Posta Indian Reservation, Los 
Coyotes Band of Cahuilla and Cupeno Indians, Manzanita Band of Diegueno 
Mission Indians of the Manzanita Reservation, Mesa Grande Band of 
Diegueno Mission Indians of the Mesa Grande Reservation, Pala Band of 
Mission Indians, Pauma Band of Luiseno Mission Indians of the Pauma and 
Yuima Reservation, Rincon Band of Luiseno Mission Indians of the Rincon 
Reservation, San Pasqual Band

[[Page 18230]]

of Diegueno Mission Indians of California, Sycuan Band of the Kumeyaay 
Nation, and Viejas (Baron Long) Group of Capitan Grande Band of Mission 
Indians of the Viejas Reservation.
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    \20\ The Capitan Grande Reservation is jointly controlled by the 
Barona Group of Capitan Grande Band of Mission Indians and Viejas 
Group of Capitan Grande Band of Mission Indians. Therefore, in our 
action, we refer to 18 tribal reservations within the San Diego 
County nonattainment area and 17 tribal governments.
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    The EPA contacted tribal officials to invite government-to-
government consultation on this rulemaking.\21\ Under the EPA's 
Consultation Policy, the EPA consults on a government-to-government 
basis with federally recognized tribal governments when the EPA's 
actions and decisions may affect tribal interests.\22\ At the request 
of a few tribes, on January 22, 2021, the EPA held an informational 
meeting on the reclassification request.\23\ Three tribes--the La Jolla 
Band of Luiseno Indians, Ewiiaapaayp Band of Kumeyaay Indians, and 
Campo Band of Diegueno Mission Indians of the Campo Indian 
Reservation--requested government-to-government consultation. We 
provide summaries of the consultation meetings in memoranda included in 
the docket for this rulemaking.
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    \21\ The consultation letters are included in the docket for 
this action.
    \22\ The EPA's Consultation Policy is available at https://www.epa.gov/tribal/epa-policy-consultation-and-coordination-indian-tribes.
    \23\ The informational meeting slides and notes are included in 
the docket for this action.
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    We have considered the relevance of our proposal to reclassify the 
San Diego nonattainment area as Severe nonattainment for the 2008 and 
2015 ozone standards for each tribe located within San Diego County in 
conjunction with the concerns raised by tribes during government-to-
government consultations. We believe that the same facts and 
circumstances that support the proposal for the non-Indian country 
lands also support the proposal for reservation areas of Indian country 
\24\ and any other areas of Indian country where the EPA or a tribe has 
demonstrated that the tribe has jurisdiction located within San Diego 
County. The EPA implements federal CAA programs, including 
reclassifications, in this area of Indian country consistent with our 
discretionary authority under sections 301(a) and 301(d)(4) of the CAA. 
Accordingly, the EPA is therefore proposing to reclassify areas of 
Indian country geographically located in the San Diego County 
nonattainment area as Severe for the 2008 and 2015 ozone NAAQS.
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    \24\ ``Indian country'' as defined at 18 U.S.C. 1151 refers to: 
``(a) all land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and including rights-of-way running through 
the reservation, (b) all dependent Indian communities within the 
borders of the United States whether within the original or 
subsequently acquired territory thereof, and whether within or 
without the limits of a state, and (c) all Indian allotments, the 
Indian titles to which have not been extinguished, including rights-
of-way running through the same.''
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    Ground-level ozone pollution is formed from the reaction of 
volatile organic compounds (VOC) and oxides of nitrogen 
(NOX) in the presence of sunlight. These two pollutants, 
referred to as ozone precursors, are emitted by many types of sources, 
including on-and off-road motor vehicles and engines, power plants and 
industrial facilities, and smaller area sources such as lawn and garden 
equipment and paints. Scientific evidence indicates that adverse public 
health effects occur following exposure to ozone, particularly in 
children and adults with lung disease. Breathing air containing ozone 
can reduce lung function and inflame airways, which can increase 
respiratory symptoms and aggravate asthma or other lung diseases.\25\
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    \25\ ``Fact Sheet--2008 Final Revisions to the National Ambient 
Air Quality Standards for Ozone'' dated March 2008.
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    Ground-level ozone continues to be a pervasive pollution problem in 
areas throughout the United States. Ozone and precursor pollutants that 
cause ozone can be transported throughout a nonattainment area. 
Therefore, boundaries for nonattainment areas are drawn to encompass 
both areas with direct sources of pollution as well as nearby areas in 
the same airshed in which ozone can be transported. Initial 
classifications of nonattainment areas are coterminous with, that is, 
they match exactly, their boundaries. The EPA believes this approach 
best ensures public health protection from the adverse effects of ozone 
pollution. Therefore, it is generally counterproductive from an air 
quality and planning perspective to have a different classification for 
a land area located within the boundaries of a nonattainment area, such 
as the areas of Indian country contained in the ozone nonattainment 
areas at issue here.
    Uniformity of classification throughout a nonattainment area is a 
guiding principle and premise when an area is being reclassified. In 
this particular case, we are proposing to reclassify the San Diego 
County nonattainment area and note that the State's reclassification 
request is based on modeling results that show that a longer timeframe 
is necessary to attain each ozone standard for the San Diego County 
nonattainment area. The longer timeframes will provide the time 
necessary to realize full implementation of the stationary and mobile 
source regulations contained in the District's attainment plan.\26\
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    \26\ SDCAPCD, ``2020 Plan for Attaining the National Ambient Air 
Quality Standards for Ozone in San Diego'' County (October 2020), 
page 2.
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    The EPA has carefully considered the views expressed by the Tribes 
during the consultation process. Although we heard from Tribes their 
concerns about or opposition to the State's request to reclassify the 
San Diego nonattainment area, the EPA does not have discretion to deny 
the State's voluntary reclassification request.\27\ We also heard 
concerns from Tribes that air quality on tribal lands is not accurately 
represented by the existing regulatory monitors, including Alpine, the 
design value monitor in the San Diego nonattainment area.
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    \27\ CAA section 181(b)(3) provides states with the ability to 
request voluntary reclassification, and the EPA does not have 
discretion to deny a voluntary reclassification request from a 
state.
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    The La Jolla Tribe indicated that they operate a nonregulatory 
informational monitor, and that the informational monitor shows ozone 
levels that exceed the NAAQS. This information supports reclassifying 
the La Jolla Reservation along with the rest of the San Diego ozone 
nonattainment area. The Campo and Ewiiaapaayp Tribes indicated that the 
air quality on their reservation is pristine and meets the ozone 
standards, and they expressed concerns about the nonattainment 
classification for their respective reservations.
    Absent monitoring data or an attainment demonstration, the EPA is 
relying on our previous analysis, such as the five-factor analysis, 
that supported our initial nonattainment designation for San Diego 
County, including areas of Indian country, for the 2008 ozone NAAQS, as 
well as information in the State's reclassification request, as support 
for inclusion of the reservations of the Campo and Ewiiaapaayp Tribes 
in the proposed reclassification action. The EPA included our five-
factor analysis for the Campo, Ewiiaapaayp, and La Jolla tribes in the 
Technical Support Documents or Responses to Comments for the 2008 ozone 
NAAQS.\28\ Several studies have shown ozone transport from the South 
Coast air basin and the western portions of San Diego County

[[Page 18231]]

can impact the inland areas of San Diego County.\29\ The EPA therefore 
found that transport of ozone and its precursors is prevalent within 
San Diego County, and from adjacent nonattainment areas. We also 
previously reviewed modeling performed in the 2007 8-hour ozone 
attainment plan for San Diego County that shows that the inland tribal 
reservations experience similar air quality as the surrounding inland 
areas.\30\ The EPA also concluded that the reservations for the Campo, 
Ewiiaapaayp, and La Jolla tribes do not have any geographical or 
topographical barriers that would prevent air pollution transport from 
the surrounding San Diego County nonattainment area.\31\ We indicated 
that although the terrain is complex, there are no topographic 
barriers. Therefore, violations of the eight-hour ozone standard, which 
are measured and modeled throughout the nonattainment areas, as well as 
shared meteorological conditions within the nonattainment area indicate 
that the tribal areas experience similar ozone concentrations. 
Additionally, the State's reclassification request indicates that 
although air quality in the region has improved substantially, and is 
projected to continue to improve, air quality modeling performed by 
CARB concludes that a longer timeframe is necessary for the entire 
nonattainment area to attain each ozone standard.\32\
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    \28\ The EPA's analysis for including the La Jolla Reservation 
and the Campo Reservation within the nonattainment area are detailed 
in the EPA's Technical Support Document (TSD) for the 2008 ozone 
NAAQS designations and was also used to support the 2015 ozone 
designations. The TSD is available at https://www.regulations.gov/document/EPA-HQ-OAR-2017-0548-0068. The EPA's analysis for the 
Ewiiaapaayp Reservation is detailed in the Response to Comments for 
the 2008 ozone NAAQS and is available at https://www.regulations.gov/document/EPA-R04-OAR-2018-0142-0042.
    \29\ The EPA previously provided the list of studies on pages 10 
and 12 of the TSD for the 2008 ozone NAAQS designations. See also 
Attachment M of the SDCAPCD's ``2020 Plan for Attaining the National 
Ambient Air Quality Standards for Ozone in San Diego County'' 
(October 2020) for a description of prior studies (page M-16) and 
more details on the meteorological conditions in the nonattainment 
area.
    \30\ See pages 10 and 12 of the TSD for the 2008 ozone NAAQS 
designations.
    \31\ For the La Jolla Tribe, see page 11 of the TSD for the 2008 
ozone NAAQS designations. For the Campo Tribe, see page 14. For the 
Ewiiaapaayp Tribe, see page 86 of the Response to Comments for the 
2008 ozone NAAQS.
    \32\ See page 2 of the SDCAPCD's ``2020 Plan for Attaining the 
National Ambient Air Quality Standards for Ozone in San Diego 
County'' (October 2020). The District's modeling demonstration is 
provided in Chapter 4.3 and Attachments K and L.
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    The EPA recognizes that the Ewiiaapaayp Tribe has submitted letters 
requesting an error correction for the Tribe's designation as part of 
the San Diego ozone nonattainment area for the 2008 and 2015 ozone 
NAAQS and a redesignation as a Class I area and participation in the 
Prevention of Significant Deterioration (PSD) program.\33\ An error 
correction, redesignation as a Class I area, and the PSD program are 
all outside the narrow scope of this proposed reclassification action, 
and therefore the EPA will be reviewing these requests separately and 
taking action, as appropriate in the future.
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    \33\ Letter dated February 16, 2021, from Robert Pinto, Sr., 
Tribal Chairman, Ewiiaapaayp Band of Kumeyaay Indians, to T. Khoi 
Nguyen, EPA Region IX. Additionally, see letter dated February 26, 
2021, from Robert Pinto, Sr., Tribal Chairman, Ewiiaapaayp Band of 
Kumeyaay Indians, to T. Khoi Nguyen, EPA Region IX following up on 
the Class I and PSD request.
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    In light of the considerations outlined above that support 
retention of a uniformly-classified ozone nonattainment area, and our 
proposal to approve the State's voluntary reclassification request, we 
propose to reclassify the entire San Diego nonattainment area, 
including reservation areas of Indian country and any other area of 
Indian country located within it where the EPA or a tribe has 
demonstrated that the tribe has jurisdiction, as Severe nonattainment 
for both the 2008 and 2015 ozone NAAQS.
    The EPA specifically solicits additional comment on this proposed 
rule from tribal officials. We note that although eligible tribes may 
seek EPA approval of relevant tribal programs under the CAA, none of 
the affected tribes would be required to submit an implementation plan 
as a result of this reclassification.

III. Summary of Proposed Action and Request for Public Comment

    Pursuant to CAA section 181(b)(3), we are proposing to grant CARB's 
request to reclassify the San Diego County ozone nonattainment area 
from Serious to Severe for the 2008 ozone NAAQS and from Moderate to 
Severe for the 2015 ozone NAAQS. With respect to Severe SIP element 
submittal dates that have passed, the EPA is proposing to establish a 
deadline of no later than 12 months from the effective date of 
reclassification for submittal of revisions to the San Diego County 
portion of the California SIP to meet additional requirements for 
Severe ozone nonattainment areas to the extent that such revisions have 
not already been submitted. With respect to the Section 185 Fee 
Program, upon reclassification to Severe, the deadline for submittal 
would be July 20, 2022, for the 2008 ozone NAAQS and August 3, 2028, 
for the 2015 ozone NAAQS pursuant to the EPA's ozone SRRs. Upon 
reclassification, the new attainment dates for the San Diego County 
ozone nonattainment area would be as expeditiously as practicable, but 
no later than July 20, 2027, for the 2008 ozone NAAQS and August 3, 
2033, for the 2015 ozone NAAQS.
    In addition, the EPA is proposing to reclassify reservation areas 
of Indian country and any other area of Indian country where the EPA or 
a tribe has demonstrated that the tribe has jurisdiction within the San 
Diego County nonattainment area as Severe nonattainment for the 2008 
and 2015 ozone NAAQS. Although eligible tribes may seek the EPA's 
approval of relevant tribal programs under the CAA, none of the 
affected tribes would be required to submit an implementation plan as a 
result of this reclassification.
    We will accept comments from the public on these proposals for the 
next 30 days. The deadline and instructions for submission of comments 
are provided in the DATES and ADDRESSES sections at the beginning of 
this preamble.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to Executive Order 12866. With respect to 
lands under state jurisdiction, voluntary reclassifications under CAA 
section 181(b)(3) of the CAA are based solely upon requests by the 
state, and the EPA is required under the CAA to grant them. These 
actions do not, in and of themselves, impose any new requirements on 
any sectors of the economy. In addition, because the statutory 
requirements are clearly defined with respect to the differently 
classified areas, and because those requirements are automatically 
triggered by reclassification, reclassification does not impose a 
materially adverse impact under Executive Order 12866. With respect to 
Indian country, reclassifications do not establish deadlines for air 
quality plans or plan revisions. For these reasons, this proposed 
action is also not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001).
    In addition, I certify that this proposed rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and that 
this proposed rule does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), because the EPA 
is required to grant requests by states for

[[Page 18232]]

voluntary reclassifications and such reclassifications in and of 
themselves do not impose any federal intergovernmental mandate, and 
because tribes are not subject to implementation plan submittal 
deadlines that apply to states as a result of reclassifications.
    Executive Order 13175 (65 FR 67249, November 9, 2000) requires the 
EPA to develop an accountable process to ensure ``meaningful and timely 
input by tribal officials in the development of regulatory policies 
that have tribal implications.'' ``Policies that have tribal 
Implications'' are defined in section 1(a) of the Executive Order to 
include regulations that have ``substantial direct effects on one or 
more Indian tribes, on the relationship between the Federal Government 
and the Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes.'' 
Several Indian tribes have areas of Indian country located within the 
boundary of the San Diego County ozone nonattainment areas.
    The EPA implements federal CAA programs, including 
reclassifications, in these areas of Indian country consistent with our 
discretionary authority under sections 301(a) and 301(d)(4) of the CAA. 
The EPA has concluded that this proposed rule might have tribal 
implications for the purposes of E.O. 13175 but would not impose 
substantial direct costs upon the tribes, nor would it preempt Tribal 
law. This proposed rule does affect implementation of new source review 
for new or modified major stationary sources proposed to be located in 
the areas of Indian country proposed for reclassification, and might 
affect projects proposed in these areas that require Federal permits, 
approvals, or funding. Such projects are subject to the requirements of 
the EPA's General Conformity rule, and federal permits, approvals, or 
funding for the projects may be more difficult to obtain because of the 
lower de minimis thresholds triggered by reclassification.
    Given the potential implications, the EPA contacted tribal 
officials early in the process of developing this proposed rule to 
provide an opportunity to have meaningful and timely input into its 
development. On December 11, 2020, we sent letters to leaders of the 17 
tribal governments representing 18 areas of Indian country in the 
nonattainment area offering government-to-government consultation and 
seeking input on how we could best communicate with the tribes on this 
rulemaking effort. On January 12, 2021, we received a response from one 
tribe requesting a webinar on this matter on behalf of a few tribes. We 
held this informational webinar on January 22, 2021. Additionally, we 
received responses from three tribes requesting formal government-to-
government consultation. The consultation letters and the information 
and notes from the webinar and the three government-to-government 
consultations are included in the docket for this action. The EPA has 
carefully considered the views expressed by the Tribes.
    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. This proposed reclassification action 
relates to ozone, a pollutant that is regional in nature, and is not 
the type of action that could result in the types of local impacts 
addressed in Executive Order 12898.
    This proposed action also does not have federalism implications 
because it does not have substantial direct effects on the states, on 
the relationship between the national government and the states, nor on 
the distribution of power and responsibilities among the various levels 
of government, as specified in Executive Order 13132 (64 FR 43255, 
August 10, 1999). This proposed action does not alter the relationship 
or the distribution of power and responsibilities established in the 
CAA.
    This proposed rule also is not subject to Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because the EPA interprets 
Executive Order 13045 as applying only to those regulatory actions that 
concern health or safety risks, such that the analysis required under 
section 5-501 of the Executive Order has the potential to influence the 
regulation.
    Reclassification actions do not involve technical standards and 
thus, the requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. 
This proposed rule does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.).

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, Intergovernmental 
relations, National parks, Ozone, Wilderness areas.

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

    Dated: April 2, 2021.
Deborah Jordan,
Acting Regional Administrator, Region IX.
[FR Doc. 2021-07223 Filed 4-7-21; 8:45 am]
BILLING CODE 6560-50-P


