South Coast 

Air Quality Management District 

21865 Copley Drive, Diamond Bar, CA 91765-4178 

(909) 396-2000 • www.aqmd.gov 

via EPA Portal at lzttp:llwww.regulations.gov 

Mr. Jared Blumenfeld 

Regional Administrator 

U.S. Environmental Protection Agency, Region 9 

75 Hawthorne Street 

San Francisco, CA 94195 

Office of the Executive Officer 

-Barry R. Wallerstein, D. Env. 

909.396.2100, fax 909.396.3340 

February 5, 2015 

Re: "Approval ofTribal Implementation Plan and Designation of Air Quality 

Planning Areas; Pechanga Band of Luiseno Mission Indians; Proposed Rule" 

80 Fed. Reg. 436 (Jan. 6, 2015); Docket Number EPA-R09-0AR-2014-0869 

(comments due February 5, 2015) 

Dear Mr. Blumenfeld: 

This letter presents the comments of the South Coast Air Quality Management District staff 

("SCAQMD'') on EPA's proposal to (1) approve a boundary change to make the reservation of 

the Pechanga Band a separate air quality planning area for the 1997 8-hour ozone National 

Ambient Air Quality Standard (''NAAQS"), (2) approve Pechanga's maintenance plan for that 

standard, and (3) redesignate the Pechanga Reservation to attainment for the 1997 8-hour ozone 

standard. The Pechanga Reservation is currently a part of the South Coast Air Basin, which is 

designated as "extreme" nonattainment for the 1997 8-hour standard. The SCAQMD is the air 

district responsible for attaining the NAAQS within the remainder- of the South Coast Air Basin, 

which consists of all of Orange County and the non-desert portions of Los Angeles, Riverside, 

and San Bernardino Counties. Pechanga's proposed maintenance plan relies largely on future 

reductions in emissions in the remainder of the South Coast Air Basin to ensure continued 

maintenance of the 1997 8-hour ozone standard. The SCAQMD has a number of concerns with 

EPA's proposal. 

These concerns, which are discussed in the attachment, are as follows: (1) the use of monitoring 

data from outside the area to determine the area's attainment status, (2) the discrepancy between 

monitored air quality trends at the Temecula and Pechanga monitors, (3) insufficient control 

measures in the maintenance pian, (4) unjustified reliance on control measures from outside the 

area which do not apply on Tribal lands, (5) potential errors in the emissions inventory, 

Cleaning the air that we breathe ... '" 
Jared Blumenfeld 

U. S. Environmental Protection Agency 

February 5, 2015 

Page 2 

(6) inadequacy of the contingency plan, (7) inconsistency of the proposed action with EPA's 

"Policy for Establishing Separate Air Quality Designations for Areas of Indian Country," and 

(8) inconsistency with EPA's rationale for maintaining the remainder of Indian Country within 

the South Coast Air Basin. A detailed explanation of our concerns is attached. 

Thank you for your consideration of our comments. If you have any questions, please feel free 

to contact me at 909-396-2100 or bwallerstein@agmd.gov. 

BRW:BB:pa 

e/sharelbbllndian law/Pechanga Maintenance.doc 

cc: Deborah Jordan, Air Director, EPA Region 9 

Ken Israels, EPA Region 9 
SCAQMD Comments on Pechanga Redesignation Request, 

80 Fed. Reg. 436 (Jan. 6, 2015); Docket No. EPA-R09-0AR-2014-0869 

Use of Monitoring Data from Outside the Area to Determine Attainment Status 

EPA proposes to use air quality monitoring data from the Temecula station, operated by the 

South Coast Air Quality Management District, to determine that the Pechanga area has attained 

the national ambient air quality standard for the 1997 1-hour ozone standard. At the same time, 

EPA proposes a boundary change that would take the Pechanga Reservation out of the South 

Coast Air Basin and place it in its own air quality control region. We are unaware of any 

precedent for EPA to determine attainment status for an entire separate nonattainment area based 

on monitors located outside that area-at least where the data is being used to support 

redesignation from nonattainment to attainment, which carries a higher burden than merely 

extending an existing nonattainment area. Typically, EPA describes its monitoring requirements 

as applying "in the area." }'or example, EPA has stated that "a determination ofwhether an 

area's air quality meets the one-hour ozone standard is generally based upon three years of 

complete, quality-assured, and certified air quality monitoring data gathered at established State 

and Local Air Monitoring Stations ("SLAMS") in the nonattainment area and entered into the 

EPA's Air Quality System (AQS) database." 76 Fed. Reg. 82133, 82135 col. 2 (Dec. 30, 2011) 

In addition, EPA's monitoring and air quality regulations support this interpretation. For 

example, EPA defines "design value" as follows: "the calculated concentration according to the 

applicable appendix of Part 50 of this chapter for the highest site in an attainment area or 

nonattainment area." 40 C.F.R. §58.1. Moreover, Appendix D ofPart 58 specifies that "Data 

from FRM, FEM, and ARM monitors for NAAQS will be used for comparing an area's air 

pollution against the NAAQS." (Appendix D, Section 1, subdivision 1.1(b).) 

Finally, EPA's position here seems inconsistent with its earlier position in declining to grant the 

Pechanga Reservation an "attainment" designation for the 2008 ozone standard. (Document A01 in the Docket.) There EPA. stated: "As Pechanga does not currently have a regulatory 

monitor in its.areas of Indian Country demonstrating that the NAAQS is being met, consistent 

with the EPA Tribal Designation Policy, EPA disagrees that Pechanga's Indian Country should 

be designated as a separate attainment area." (!d., p. 6 of"Technical Analysis for Pechanga 

Band of Luiseno Mission Indians of the Pechanga Reservation"). 

We cannot find any discussion of procedures to use when basing an area's redesignation from 

nonattainmentto attainment on monitors outside the area. Therefore, we conclude that EPA's 

regulations do not authorize such an approach. EPA needs to explain its legal justification for 

such an. approach, and demonstrate why it will not lead to further attempts by areas within the 

South Coast Air Basin to secede from the Basin in order to obtain the benefits of a lower ozone 

classification or a redesignation to attainment. 

Discrepancy between Monitored Air Quality Trends at Temecula and Pechanga Monitors 

The Tribe maintains an ozone air quality monitor on reservation lands. However, the monitored 

data did not meet EPA's completeness criteria, so EPA proposes to use monitored air quality 

1 
from the Temecula ozone monitor, maintained by the South Coast Air Quality Management 

District ("SCAQMD"), as a surrogate. 80 Fed. Reg. 440, col. 1. EPA concludes that the 

Temecula monitor is representative of conditions on the reservation. EPA bases this conclusion 

on observations that ozone levels appear to be higher farther north in Riverside County, and 

lower in northern San Diego County (Escondido). !d., cols. 1, 2. Thus, it is assumed that actual 

air quality at Pechanga will be at least as clean as that measured at the Temecula monitor. EPA 

also notes that emissions on the reservation itself are very small, and concludes that transport 

from the South Coast is the primary cause of ozone violations at the reservation. !d., col. 3. 

Preliminarily, we note that comparison with the Escondido monitor does not appear appropriate 

to demonstrate a trend of lower readings as one moves south, because Escondido is located in a 

separate air basin, influenced by coastal breezes, and separated from Pechanga by mountains. 

Moreover, EPA's analysis fails to note that while the Temecula monitor shows a trend of 

decreasing ozone levels, the Pechanga monitor for the past five years shows a trend of increasing 

ozone levels, to the point that it must be doubted whether the Tribe can demonstrate that air 

quality will be maintained below the 1997 8-hour ozone standard for the 10 years required to 

approve a maintenance plan. Although EPA has noted in its Technical Support Document that 

Pechanga monitoring data from before a problem detected in 2011 was corrected cannot be used 

for purposes ofNAAQS (Docket D-01, "December 18, 2014, "Technical Support DocumentBackground Paper-Memorandum to File", p. 4), EPA has not indicated that the 2008-2009 data 

was biased low for any reason. 

According to the "Ozone Redesignation Request and Maintenance Plan for the Pechanga Band 

ofLuiseno Mission Indians of the Pechanga Reservation Nonattainment Area," dated May 2014, 

("Redesignation Request") Appendix B, Tables B-1 and B-2, the 8-hour standard fourth highest 

daily maximum ozone readings at Temecula and Pechanga are as follows (in parts per million): 

Monitor Name Date Value 3-year average 

(parts per million) (2011-2013) 

Temecula 2011 0.083 

2012 0.077 

2013 0.074 

0.078 

Monitor Name Date Value 3-year average 

(parts per million) (2011-2013) 

Pechanga 2008 I 0.053 

2009 0.047 

2010 no data submitted2 

2011 0.072 

2012 0.075 

2013 0.074 

0.074 

1 data for one-half year only 2 document notes that EPA had questioned Pechanga data for at least 20 I 0 

2 
Thus, the Pechanga data shows an upward trend between 2009 and 2013. As discussed below, 

even if the 2008-2009 data from the Pechanga monitor is ignored, the trend is upward from 2011 

to 2014 (0.072 to 0.079) while it is downward at Temecula (0.083 to 0.078)(or more) 

In EPA's proposal, partial data for 2014 is provided. Although only part of the year is available, 

the trend continues to show increasing levels at Pechanga: 

Temecula: 2014 0.065 (January-March) 

Pechanga: 2014 0.079 (January-June) 

80 Fed. Reg. 443, n. 28. 

The low number for Temecula is expected to rise for the remainder of the year since this data 

only covers January through March, which does not include the primary part of the ozone 

season. (Technically the ozone season in California is the entire year, but most high levels are 

experienced in the period May through October.) Indeed, preliminary SCAQMD data indicates a 

fourth-highest 8-hour ozone level at Temecula of0.078 for 2014. By the same token, however, 

the monitored ozone level for Pechanga is also likely to rise since the reported data above only 

covers January through June, or only part of the ozone season, excluding the months in which 

higher levels are typically experienced. 

Thus, while EPA notes that the Pechanga data is consistently as low as or lower than the 

Temecula data as support for its conclusion that the Pechanga area has attained and will maintain 

the standard, Id. n. 27, EPA ignores the fact that the Temecula data shows a downward trend 

while the Pechanga data shows an upward trend. And in 2014 Pechanga data actually appears to 

record higher ozone levels locally than at Temecula. EPA uses 0.077 as· the design value for 

Pechanga, based on the Temecula monitor. But if ozone levels in the Pechanga area are in fact 

increasing by even 0.02 parts per million per year (as the 2011-2014 trend would indicate), 

Pechanga has not demonstrated that it will maintain levels below the standard for the next 

10 years. 

We recognize that EPA states that the Pechanga data is incomplete. Nevertheless, there is 

nothing about data being incomplete that would inherently explain the contrasting monitored 

data. The Temecula station reflects a largely decreasing trend, as would be expected according 

to EPA's analysis of South Coast emission trends. But the Pechanga data shows an increasing 

trend, despite EPA's claim that its air quality is entirely dependent on South Coast emissions and 

transport. EPA cannot reasonably rely on the fact that the Pechanga data is (at least before 2014) 

equal to or lower than the Temecula data without also acknowledging that the same data shows a 

trend of increasing ozone pollution levels. EPA needs to provide a reasoned explanation 

demonstrating that this observed increasing trend is not real, and that Pechanga ozone levels are 

actually decreasing as would be expected, or EPA's analysis is insufficient to show that the area 

has attained or will maintain the ozone standard. 

3 
Insufficient Control Measures in Maintenance Plan 

The Tribe has chosen not to include any local control measures in its maintenance plan. 80 Fed. 

Reg. at 443, col. 3. According to EPA, the Tribe is not required to actually include any local 

control measures. Instead, EPA may regulate emission sources that the Tribe chooses not to 

regulate if EPA determines that such regulation is "necessary or appropriate" to adequate I y 

protect air quality. !d. In this case, EPA has decided that it is "necessary or appropriate" to 

establish regulations governing review and permitting of new or modified sources on Indian 

. lands. This is the only section 110 requirement that EPA has determined is necessary or 

appropriate. 80 Fed. Reg. at 443-444. EPA explains that although it is redesignating Pechanga 

as "attainment" for the 1997 8~hour ozone standard, it will remain subject to EPA's 

nonattainment NSR rule because of its status as "moderate" nonattainment for the 2008 ozone 

standard. 80 Fed. Reg. 449 col. 1. The threshold for major NSR for "moderate" areas is 100 

tons per year of VOC or NOx. !d. EPA does not explain whether EPA's NSR rule for Indian 

Country (FIP) will apply on the Pechanga Reservation to the extent that it applies to minor 

sources. (The Indian Country NSR FIP includes provisions for both major and minor source 

NSR, 76 Fed. Reg. 38748 (July 1, 2011).) 

Even assuming that EPA's minor source NSR does apply, we are concerned that EPA may not 

have adequate resources to properly implement such a program. EPA's minor source NSR rule 

requires a "case-by-case" determination of control requirements for minor sources, which need 

not be consistent nationwide. 40 C.F.R. 49.154(c). Thus, EPA will be required to expend a very 

significant amount of resources for each minor NSR permit, in order to determine the proper 

control requirements. As discussed below, Pechanga has stated that one purpose of seeking a 

separate attainment area and boundary change is to help it facilitate economic development. 

Therefore, EPA may well have bitten off more than it can chew in committing to case-by-case 

control requirement review for new and modified sources on the Reservation. 3 

Moreover, we are concerned that sources will not necessarily be subject to stringent air pollution 

requirements unless they are major sources subject to "lowest achievable emissions rate" 

("LAER"). Accordingly, stringent air pollution rules may not apply to sources on the reservation 

unless they have a potential to emit of 100 tpy or more ofVOC or NOx (major source threshold 

for "moderate" ozone areas). 

SCAQMD is concerned that this single regulation (EPA's NSR rule) is insufficient to protect air 

quality on an ongoing basis. Under this proposal, any source that has less than 100 tpy of actual 

VOC or NOx emissions could take a "cap" to avoid major NSR, so that it would not be subject to 

stringent requirements, including LAER or offsets. A source emitting 100 tpy ofVOC or NOx is 

a very significant source compared to others in California. For example, 100 tpy ofNOx is over 

twice the NOx emissions of the AES Alamitos power plant. 

(http://www3.aqmd.gov/webappl/aersearch/search.aspx: Year: 2013, Facility: AES Alamitos, 

Facility ID: 115394.) And 100 tpy ofVOC is approximately two-thirds the 2013 VOC emissions 

3 Although EPA can lighten its load by implementing "general permits," which will specify control 

requirements for certain common categories of sources, EPA has yet to finalize any of its proposed 

general permits for Indian Country. 

4 
of the Ultramar (Valero) Los Angeles Refinery. (!d., Year: 2013, Facility: Ultramar, Facility ID: 

800026.) Under EPA's proposal, an unlimited number of sources as large as a major power plant 

or refinery could be built on the Reservation without requiring LAER or offsets. 

Although EPA may or may not impose strict controls under its minor source permitting program, 

there is no guarantee of such a result, and even given the best of intentions, EPA is likely to be 

overwhelmed by its new permitting responsibilities, which may both result in inadequate permit 

evaluations and in sources constructing without a permit since they are impatient to receive a 

permit from EPA. 

Of course, it is difficult to say how much development is likely to occur on the reservation in the 

future. But it is obvious that sources locating on the Pechanga reservation would have a very 

large competitive advantage compared to other sources in the South Coast or San Diego Air 

Basins, including the Tribes included within those air basins, and even over sources on the 

Morongo reservation, which currently has a 25-tpy major source threshold.4 78 Fed. Reg. 58189, 

58192 col. 3 (Sep. 23, 2013). The existence ofthis significant competitive advantage makes it 

much more likely that sources will locate on the Pechanga reservation where feasible, to avoid 

the more stringent major source controls elsewhere. 

Moreover, while the Pechanga redesignation request states in its emissions inventory section that 

"no significant new stationary sources are expected to be constructed on tribal lands" during the 

maintenance period (p. 32), the application does predict that local NOx emissions will increase 

by 33%. !d. More importantly, however, this prediction is contradicted by Pechanga's 

statements in support of its original 2009 request for a boundary change, which it admits was to 

support its efforts "to facilitate economic development." 75 Fed. Reg. 24409, 24413 col. 3, 

(May 5, 2010). Accordingly, while new major (100 tpy) sources may not be expected, this does 

not preclude a proliferation of minor sources-. some of which could be almost as large as a 

major source if they took a cap on emissions. And it appears that Pechanga does intend to try to 

attract new economic development, which would include new stationary sources. 

5 

4 The threshold for BACT controls in the South Coast Air Basin is zero, and the offset threshold is 4 tpy. 

Rules 1303( a)( 1) and 1304( d), http://www .aqmd.govlhome/regulations/ru1es/scaqmd-rulebooklregulation-xiii. In San Diego, the BACT threshold is 10 lbs/day (2600 lbs/year assuming 260 days, 

or 1.3 tpy) (Ru1e 20.2(d)(i), http://www.sdapcd.org/rules/current_ru1es.html) and the major source 

threshold is 50 tpy (Rule 20.1, Table 20.1-6) (!d.). 

5 The "Request to Create a Separate Nonattainment Area for the Pechanga Indian Reservation or, 

Alternatively, Move the Northern Boundary of the San Diego Nonattainment Area to Include the 

Reservation of the Pechanga Band ofLuisero Indians" dated June 23, 2009 ("Request for Separate 

Area"), states that remaining in the South Coast Air Basin would "severely compromise the Tribe's 

capacity to engage in economic development..." (cover letter). Moreover, the Tribe predicts that 

"only ... a small set of potential future emitting sources['] []emissions would be lower than 10 tpy of both 

NOx and VOC" (Request for Separate Area, p.3.) This suggests that the Tribe expects that most new 

stationary sources will exceed 10 tpy NOx or VOC. 

5 
The much higher major NSR threshold on the reservation will have a natural tendency to attract 

development that can feasibly locate there, and coupled with Pechanga's avowed intent to 

facilitate economic development, presents a risk that new emissions will far exceed the 

projections contained in the maintenance plan. While these emissions will often affect San 

Diego, which is generally downwind of the Pechanga reservation, there are also conditions in 

which these emissions can be blown into the South Coast Air Basin and potentially affect 

southwestern Riverside County. Therefore, SCAQMD is concerned that the single air pollution 

measure-EPA's NSR rule-applicable on the reservation will be insufficient to prevent adverse 

effects from emissions growth on the reservation. We urge EPA to, at minimum, apply its minor 

NSR program on the reservation in a manner that would impose equivalent requirements as those 

applicable to minor sources in the adjacent South Coast Air Basin, and to consider whether 

additional measures applicable to specific sources would be appropriate to prevent ill effects 

from unlimited growth. SCAQMD's BACT ("best available control technology") 

determinations for minor sources are readily available in its BACT Guidelines, which are 

periodically updated with approval of the Governing Board, and are available on the SCAQMD's 

website. http://www.aqmd.gov/home/permits/bact/guidelines. For sources exceeding 10 tpy 

NOx or VOC, which would be "major" in the South Coast Air Basin but not in Pechanga, EPA 

should impose controls as similar as possible to LAER, to minimize the large competitive 

advantage to sources locating on Pechanga lands. 

Unjustified Reliance on Control Measures from Outside the Area Which Do Not Apply 

on Tribal Lands 

Except for the EPA's imposition ofnonattainment NSR, the Pechanga maintenance plan relies 

almost entirely on control measures affecting sources outside the area and which do not apply on 

triballands.6 Under the Clean Air Act ("CAA"), Section 107(d)(3)(E)(iii), EPA may not 

redesignate an area to attainment unless it finds that the improvement in air quality is due to 

permanent and enforceable reductions in emissions resulting from "implementation of the 

applicable implementation plan and applicable Federal air pollution regulations and other 

permanent and enforceable reductions." EPA admits that the improvement at Pechanga "does 

not reflect emissions changes at Pechanga Reservation itself' and instead reflects reductions 

occurring in the South Coast. 80 Fed. Reg. at 445, col. 2. EPA considers that the rules 

producing these reductions, including CARB 's motor vehicle and nonroad engine programs, 

qualify as "other permanent and enforceable reductions" within the meaning of the Act. 

/d., col. 3. 

We are not convinced that Congress meant to allow areas to rely entirely on reductions occurring 

in upwind areas, imposing minimal controls on local sources, when it used the phrase "other 

permanent and enforceable reductions." Instead, we believe the reference to "other" such 

reductions was included primarily because of the potential that an area might implement 

permanent and enforceable reductions that were not part of its approved implementation plan. It 

is not uncommon for the South Coast District to discover a measure that may not have been in its 

state implementation plan ("SIP"), but will contribute to attainment, and to adopt that measure. 

6 EPA also mentions the federal motor vehicle program as reducing emissions in the state of California 

from vehicles driven from out of state. 80 Fed. Reg. at 445, col. 3. 

6 
This is an example of"other permanent and enforceable reductions." We do recognize that 

downwind areas may have to rely to some extent on measures in upwind areas to attain the 

NAAQS, so that some reliance on measures outside the area may be appropriate. For example, 

The Coachella Valley may need to rely on reductions in the South Coast Air Basin to attain 

applicable ozone standards. But the vast majority of such controls also apply within the 

Coachella Valley, so that the local area is also doing its part to reach attainment. We believe 

EPA has gone beyond the reasonable application of this principle in this case, by allowing almost 

all the emission reductions to come from measures in the upwind area. Because the major source 

threshold for a "moderate'' ozone area is so high (100 tpy), EPA's major NSR program will 

likely never come into play. And there has been no experience with EPA's recently-promulgated 

minor source NSR program to provide any confidence that it will require meaningful local 

controls. If meaningful local controls are not required, downwind areas may take advantage of 

lax regulations to create a new locally-caused air quality problem. 

We are very concerned about the precedential effect of EPA's interpretation allowing an area to 

rely on upwind reductions, without significant local controls. EPA admits that these upwind area 

controls do not apply on the Reservation. 80 F~d. Reg. at 446 col. 1. While the Pechanga 

Reservation at present apparently has few emission sources, this could change in the future. 

Moreover, once EPA establishes the precedent that an area may escape local controls by relying 

on upwind reductions, other downwind areas may ask EPA for the same treatment. EPA has 

entered onto a "slippery slope" which could result in other downwind areas seeking to rely on 

South Coast controls and avoiding local controls. 

We know that we have to implement all feasible measures, including Section 182(e)(5) 

measures; justto attain in the South Coast Air Basin, but we are very concerned that downwind 

areas could use EPA's interpretation to gain a large competitive advantage by avoiding stringent 

local controls. We request that EPA do the following: (1) provide support from the legislative 

history of Section 107 or earlier interpretations by EPA that would allow an area to rely so 

substantially on upwind controls to meet its air quality goals, without significant local controls, 

and (2) if it can provide such support for its interpretation, explicitly limit its interpretation to 

areas where local emissions are extremely small. 

Potential Errors in Emissions Inventory 

This brings us to another area of concern with respect to the reasonableness of relying on upwind 

area controls. EPA bases its interpretation in part on its conclusion that the local emissions 

inventory in the Pechanga area is extremely small. 80 Fed. Reg. at 446, col. 3. However, we are 

concerned that this inventory likely underestimates actual emissions, and particularly future 

actual emissions. According to Pechanga's redesignation request, for consumer products and 

mobile sources, "emissions were scaled to South Coast Air Basin projections, based on relative 

population." (Request for Redesignation, p. 32.) This may present an unrealistically low 

estimate. According to EPA, the Pechanga population is approximately 800. 80 Fed. Reg. at 

437, col. 2. In contrast, the Tribe states that up to 40,000 people visit the casino on tribal lands 

each week, which doubtless involves many more motor vehicles than those used by the 

7 
Reservation's 800 or 500 residents. 7 (Pechanga's Application for Treatment as a State, p. 2, 

Aug. 19, 2014.) Since Pechanga states that its NOx emissions are expected to grow 33% based 

on increased stationary source combustion associated with the casino, (Request for 

Redesignation, p. 32), it is logical to assume that operations at the casino, and associated motor 

vehicle traffic, are also likely to increase. At minimum, EPA needs to ensure that Pechanga has 

not underestimated existing mobile and area source emissions, and thus likely underestimated 

future emissions. Additional support for this concern is presented by the fact that the local 

Pechanga monitor has experienced a trend of increasing ozone levels, while the upwind 

Temecula monitor has experienced a trend of decreasing ozone levels, as discussed above. 

If indeed Pechanga has underestimated emissions occurring on the reservation, this would be an 

additional reason for requiring adequate controls on local sources. Since there is little the Tribe 

can do about motor vehicle emissions, this might require additional controls on stationary 

sources. 

Inadequate Contingency Plan 

As explained by EPA, Section 175A of the CAA requires that a maintenance plan include 

contingency provisions, as the EPA deems necessary, to promptly correct any violations of the 

national ambient air quality standard ("NAAQS") that occur after redesignation to attainment. 

80 Fed. Reg. at 448 col. 1. Such provisions must include a requirement that the state will 

implement all measures within the area that were contained in the SIP for the area before 

redesignation as an attainment area. /d. Pechanga proposed to rely on the California Air 

Resources Board Advanced Clean Cars Program ("ACCP"), which although already adopted, 

provides reductions that are surplus to those included in the baseline emissions estimate for the 

maintenance plan. /d., cols. 1 & 2. EPA states that because the ACCP does not apply on the 

reservation, it cannot qualify as a contingency measure for the Pechanga maintenance plan. Id., 

col. 2. We believe that the same reasoning should prevent Pechanga from relying entirely on 

"other permanent and enforceable reductions" from outside the attainment area, as discussed 

above. 

While rejecting Pechanga's proposed contingency measure, EPA determines that the emission 

reductions it supplies "justify the lack of specific contingency measures" to be implemented by 

the Tribe in the event of a violation. 80 Fed. Reg. at 448 col. 2. EPA fails to explain its legal 

theory that would allow the Tribe to fail to identify specific contingency measures. 

Inconsistency with EPA's "Policy for Establishing Separate Air Quality Designations for 

Areas of Indian Country" 

SCAQMD is concerned that the proposal to grant a boundary change and create a separate 

attainment area for the 1997 8-hour ozone standard for the Pechanga Reservation is inconsistent 

with EPA's "Policy for Establishing Separate Air Quality Designations for Areas of Indian 

Country" dated December 20,2011. (Memorandum from Stephen D. Page to Regional Air 

7 Pechanga's August 19, 2014 Application for Treatment as a State (p. 1) identified only 500 residents, 

which if correct would exacerbate the potential inventory error. 

8 
Directors) (hereinafter "EPA Policy"). In that Policy, EPA states that where a tribe submits a 

request for a separate attainment area adjacent to a nonattainment area, as in this case, the Indian 

Country could be designated as a separate attainment area if several factors are met. (EPA 

Policy, pp. 7, 8). One of these factors is that the "Indian country is separated from the adjacent 

nonattainment area by topography or other geographic features." /d., p. 8. This condition is not 

met in this case. EPA states: "The terrain along the Riverside-San Diego county boundary is 

complex,. but there are no significant topographic barriers to air flow, suggesting that the 

Pechanga Reservation may experience similar air quality to the surrounding air quality planning 

areas." 80 Fed. Reg. at 441, col. 1. Thus, the Pechanga lands are not "separated" by any feature 

so as to justify creating a separate area under EPA's policy. EPA needs to explain why it fails to 

· follow its own policy in this regard. 8 

EPA further states that it could reasonably include Pechanga in either the South Coast or San 

Diego planning areas, or could establish a separate nonattainment area. Id, . at 441. EPA states 

that in deciding which way to go, it gives "particular weight" to the "jurisdictional boundaries" 

factor in its tribal designation policy. /d., col. 2. But, at least in part, EPA fails to explain what 

that means. The reference to jurisdictional boundaries seems to refer to the desire not to have a 

patchwork of air quality regions within the same political jurisdiction, or vice versa. (See EPA 

Policy, p. 3.) But to the extent thatEPA is referring to the fact that a small part of the Pechanga 

lands are located in San Diego County, this factor should not be determinative in this case. 

While the Pechanga lands have historically been entirely within the South Coast Air Basin, the 

Tribe acquired a small portion ofland in San Diego County in 2008. 80 Fed. Reg. at 438 col. 3. 

EPA should not allow Pechanga to therebif' "bootstrap" its way out of the South Coast Air Basin 

by acquiring lands in San Diego County. 

As part of its "jurisdictional boundaries" rationale, EPA also relies on the argument that "the 

Tribe has invested in its own air quality program, including operation of an ozone monitoring 

station, and has expressed interest in development of its own permitting program." 80 Fed. Reg. 

at 441 col. 2. This reliance is inappropriate. The redesignation request is devoid of any plans to 

establish a tribal permit program or any other air quality regulation. 10 Moreover, although the 

Tribe operates its own ozone monitor, EPA has rejected the data from that monitor in 

8 The Pechanga Reservation also fails to meet another ofEPA's criteria for a separate attainment area 

adjacent to a state nonattainrnent area, which is that the Tribe has its own regulatory monitor 

demonstrating the NAAQS is being met. EPA Policy, p. 7. The Pechanga monitor is not "regulatory" 

because although it may have the objective of"NAAQS Comparison," it has not adequately demonstrated 

the quality assurance and data requirements necessary for regulatory decision-making. EPA Policy, p. 6. 

While EPA has substituted Temecula monitoring station data in this case, this use must be qualified by 

the need to explain why the Pechanga monitor shows a trend toward increasing ozone at the same time as 

the upwind Temecula monitor shows a trend toward decreasing ozone levels, as discussed above. 

9 The 119 acres of land in San Diego County acquired in October 2008 represent less than 2% of the 

Reservation's total 6,588 acres. Request for Separate Area, p. I. Shortly after acquiring the San Diego 

County land, the Tribe filed its Request for Separate Nonattainrnent Area with EPA on June 23, 2009. 

10 While the Tribe's 2009 Request for Separate Area refers to plans for a local permit program, the 

Request for Redesignation does not mention any such plans, possibly due to EPA's adoption of the Indian 

Country NSR Rule. 76 Fed. Reg. 38748 (Jul. I, 2011). 

9 
considering the current request. EPA's decision practically amounts to a determination that any 

tribe that operates a monitor-even if it does not meet federal requirements-has gone a long 

way toward meeting the "jurisdictional boundaries" factor for granting a separate boundary and 

designation. This would be an unfortunate precedent and one easily seized upon by other tribes 

within the South Coast and San Diego. Indeed, South Coast staff has received inquiries from 

another Tribe regarding the potential for the Tribe locating and operating a monitor on its own 

land, which could be the predicate for a similar request for a boundary change and redesignation. 

Such a request would contradi<,;t EPA's earlier conclusion that except for Morongo and 

Pechanga, all of the tribes within the South Coast geographical air basin should remain in that air 

basin. 

Inconsistency with EPA's Rationale for Maintaining the Remainder of Indian Country 

within the South Coast Air Basin 

SCAQMD is concerned that EPA's proposal is inconsistent with the principles articulated in 

EPA's decision to retain all other Tribes within the SCAQMD (except Morongo) as having the 

same classification as the South Coast Air Basin. On August 27,2009, EPA proposed to 

reclassify the South Coast Air Basin from Severe-17 to Extreme nonattainment for the 8-hour 

ozone standard. Designation of Areas for Air Quality Planning Purposes: California; San 

Joaquin Valley, South Coast Air Basin, Coachella Valley, and Sacramento Metro Ozone 

Nonattainment Areas; Reclassification; (Proposed Rule); 74 Fed. Reg. 43654 (Aug. 27, 2009). 

In that proposal, EPA explained why it was not appropriate to give Indian lands a separate 

classification from the larger air basin in which they are located. While EPA subsequently 

issued its 2011 Policy for Establishing Separate Air Quality Designations for Areas of Indian 

Country, that Policy did not repudiate any ofthe principles discussed in EPA's 2009 proposed 

rule. 

According to EPA, "boundaries of nonattainment areas are drawn to encompass both areas with 

direct sources of the pollution problem as well as nearby areas in the same airshed .... EPA 

believes this approach best ensures public health protection from the adverse effects of ozone 

pollution." 75 Fed. Reg. 43654, 43659 col. 3. EPA concluded: "Therefore, it is generally 

counterproductive from an air quality and planning perspective to have a disparate classification 

for a land area located within the boundaries of a nonattainment area, such as the Indian country 

contained in the ozone nonattainment areas at issue here." /d. 

EPA went on to explain: "Furthermore, emissions changes in lower-classified ozone areas could 

hinder planning efforts to attain the NAAQS within the overall area through the application of 

less stringent requirements relative to those that apply in the areas with a higher ozone 

classification." /d. Moreover, ''uniformity of classification throughout a nonattainment area is 

thus a guiding principle and premise when an area is being reclassified." /d. As a result, EPA 

proposed to reclassify all the other tribal lands within the South Coast Air Basin (except 

Morongo) as "Extreme" nonattainment for the 1997 8-hour ozone standard. 74 Fed. Reg. 43654, 

43661 col. 1. EPA subsequently finalized this proposal with regard to the remainder of the tribal 

lands, deferring acting on reclassification of the Pechanga and Morongo lands, with the result 

that these two areas remained classified as "severe-17." Designation of Areas for Air Quality 

· Planning Purposes: California; San Joaquin Valley, South Coast Air Basin, Coachella Valley, 

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and Sacramento Metro 8-hour Ozone Nonattainment Areas; Reclassification (Final Rule); 

75 Fed. Reg. 24409,24412 col. 1 (May 5, 2010). Now, EPA proposes to break with this 

precedent by granting a boundary change and redesignating the Pechanga area as "attainment" 

for the 1997 ozone standard. While EPA may argue that it has already set the precedent by its 

actions regarding the 2008 ozone standard, that does not explain why the rationale discussed 

above does not continue to apply to the Pechanga situation. 

Conclusion 

The SCAQMD staffbelieves that EPA's proposed action has not been adequately demonstrated 

to comply with the legal requirements applicable to redesignations to attainment and 

maintenance plans. Further, EPA does not explain why it believes its proposal to be consistent 

with the above-cited provisions of the EPA Policy on redesignations for Indian Country, or the 

principles set forth in EPA's earlier action retaining the remainder of Indian Country (except 

Morongo lands) within the South Coast Air Basin. Moreover, there is a significant question 

regarding whether the Temecula monitoring data is truly representative of air quality on the 

Pechanga Reservation, given the contradictory trends in ozone measurements at the monitor 

located on Pechanga lands. There is also a potential that Pechanga has significantly 

underestimated on-reservation emissions from other than stationary sources, since they have 

been scaled from South Coast emissions based on population, which may not be appropriate. 

Finally, the SCAQMD is concerned that EPA's proposed action will set an unfortunate precedent 

for other Native American tribes to try to secede from the South Coast Air Basin, thus gaining a 

significant competitive advantage and potentially attracting significant amounts of new 

emissions, and may encourage other downwind areas to try to rely on South Coast emission 

reductions, with minimal local controls, to demonstrate attainment in their areas. 

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