The EPA Region 9 Administrator, Jared Blumenfeld, signed the following final 

rule on September 4, 2013. EPA is submitting it for publication in the 

Federal Register (FR). While we have taken steps to ensure the accuracy of 

this internet version of the rule, it is not the official version of the rule 

for purposes of compliance. Please refer to the official version in a 

forthcoming FR publication, which will appear on the Government Printing 

Office's FDsys website (http://fdsys.gpo.gov/fdsys/search/home.action) and on 

Regulations.gov (http://www.regulations.gov) in Docket No. EPA-R09-OAR-2012-

0936.

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R09-OAR-2012-0936; FRL- ]

Designation of Areas for Air Quality Planning Purposes; 

California; Morongo Band of Mission Indians

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is taking final action to correct an error in a 

previous rulemaking that revised the boundaries between 

nonattainment areas in Southern California designated under the 

Clean Air Act for the national ambient air quality standard for 

one-hour ozone. EPA is also taking final action to revise the 

boundaries of certain Southern California air quality planning 

areas to designate the Indian country of the Morongo Band of 

Mission Indians, California as a separate air quality planning 

area for the one-hour and 1997 eight-hour ozone standards.

EFFECTIVE DATE: This rule is effective on [FEDERAL REGISTER 

OFFICE: Insert date 30 days from the date of publication in the 

Federal Register].

ADDRESSES: EPA has established docket number EPA-R09-OAR-2012-
2

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

0936 for this action. The index to the docket is available 

electronically at www.regulations.gov and in hard copy at EPA 

Region IX, 75 Hawthorne Street, San Francisco, California. While 

all documents in the docket are listed in the index, some 

information may be publicly available only at the hard copy 

location (e.g., copyrighted material), and some may not be 

publicly available in either location (e.g., Confidential 

Business Information). To inspect the hard copy materials, 

please schedule an appointment during normal business hours with 

the contact listed in the FOR FURTHER INFORMATION CONTACT

section.

FOR FURTHER INFORMATION CONTACT: Ken Israels, Grants and Program 

Integration Office (AIR-8), U.S. Environmental Protection 

Agency, Region IX, (415) 947-4102, israels.ken@epa.gov. 

SUPPLEMENTARY INFORMATION: Throughout this document, the terms 

“we,” “us,” “our,” and “Agency” refer to EPA. 

Table of Contents

I. Summary of Proposed Action

II. Comments and Responses

III. Final Action
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This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

IV. Statutory and Executive Order Reviews

I. Summary of Proposed Action

On January 2, 2013 (78 FR 51), EPA proposed to correct an 

error in a previous rulemaking that revised the boundaries 

between nonattainment areas in Southern California designated 

under the Clean Air Act (CAA or “Act”) for the national ambient 

air quality standard (NAAQS or “standard”) for one-hour ozone.1

EPA also proposed to revise the boundaries of certain Southern 

California air quality planning areas to designate the Indian 

country2 of the Morongo Band of Mission Indians, California 

(“Morongo Reservation”) as a separate air quality planning area 

for the one-hour and 1997 eight-hour ozone standards. References 

herein to our “proposed rule” refer to our January 2, 2013 

 

1 Ground-level ozone is a gas that is formed by the reaction of volatile 

organic compounds (VOC) and oxides of nitrogen (NOx) in the atmosphere in the 

presence of sunlight. These precursor emissions are emitted by many types of 

pollution sources, including power plants and industrial emissions sources, 

on-road and off-road motor vehicles and engines, and smaller sources, 

collectively referred to as area sources.

2 “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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This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

proposed rule. 

Specifically, we proposed to correct an error in our 

October 7, 2003 (68 FR 57820) final action approving a request 

by the State of California (“California” or “State”) to shift 

the boundary between the South Coast Air Basin and the Southeast 

Desert Air Basin (which includes Coachella Valley) eastward, and 

thereby relocate the Banning Pass area to the South Coast Air 

Basin from the Southeast Desert Air Basin. As explained in our 

proposed rule, the “error” pertained only to the Morongo 

Reservation, which is located within the Banning Pass, and which 

is the only Indian country affected by the relevant portion of 

our 2003 final action. 

With respect to the one-hour ozone standard, EPA’s 2003 

action had the effect of moving the Morongo Reservation from the 

Coachella Valley portion of the “Southeast Desert Modified AQMA 

Area” (“Southeast Desert”) to the “Los Angeles-South Coast Air 

Basin Area” (“South Coast”) and changing the designations and 

classifications accordingly. Specifically, EPA’s 2003 action had 

the effect of changing the ozone nonattainment area
5

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

classification for the Banning Pass area, including the Morongo 

Reservation, from “Severe-17” to “Extreme”.3

In connection with the 2003 final action, we erred by 

failing to recognize that, while EPA had authority to change the 

boundary of the South Coast with respect to Indian country under 

CAA sections 107(d)(3)(A)-(C), 301(a) and 301(d), it is apparent 

from the proposed and final rules in 2003 that EPA did not 

recognize that it was acting under that authority or that EPA 

appropriately considered the effect of the action on Indian 

country lands. EPA recognized only that the Agency was acting on 

a State request under section 107(d)(3)(D) and reviewed the 

request accordingly. However, tribes are sovereign entities, and 

not political subdivisions of states. Typically, states are not 

approved to administer programs under the CAA in Indian country, 

and California has not been approved by EPA to administer any 

CAA programs in Indian country. With respect to the Morongo 

 

3 While the one-hour ozone standard itself has been revoked, the NSR 

requirements that had applied to a nonattainment area for the 1997 eight-hour 

ozone standard based on that area’s designation and classification for the 

one-hour ozone standard, at the time of designation for the 1997 eight-hour 

ozone standard, continue to apply to the area consistent with the 

requirements of EPA’s phase I implementation rule governing the transition 

from the one-hour ozone standard to the 1997 eight-hour ozone standard and a 

related court decision.
6

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

Reservation, EPA or the Morongo Tribe is the appropriate entity 

to initiate boundary changes, and in this instance, the Morongo 

Tribe initiated the change through a rulemaking request to EPA.

If EPA had considered such a boundary change with respect 

to the Morongo Reservation under the appropriate statutory 

authority (i.e., CAA sections 107(d)(3)(A)-(C), 301(a) and 

301(d)), the Agency might well have declined to change the 

boundary with respect to the Morongo Reservation based on 

“planning and control considerations” given that emissions 

sources within the Morongo Reservation are subject to EPA 

jurisdiction whereas the emissions sources outside of the 

Reservation are subject to the jurisdiction of the South Coast 

Air Quality Management District (SCAQMD). In addition to the 

difference in jurisdiction, we might have declined to change the 

boundary given the associated decrease in the major source 

threshold and absence of a federal Indian country new source 

review (NSR) program for new or modified stationary sources at 

the time. Therefore, under CAA section 110(k)(6),4 we proposed to 

 

4 CAA section 110(k)(6) provides that: “Whenever the Administrator determines 

that the Administrator’s action approving, disapproving, or promulgating any 
7

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

correct the error by rescinding our 2003 final action as it 

pertains to the Morongo Reservation and only as it pertains to 

the revoked one-hour ozone standard.

Second, in our proposed rule, under CAA sections

107(d)(3)(A)-(C), 301(a), and 301(d), we proposed to revise the 

boundaries of the Southeast Desert to designate the Morongo 

Reservation as a separate nonattainment area for the one-hour 

ozone standard and to classify the Morongo Reservation as 

“Severe-17,” i.e., consistent with its prior classification when 

it was included in the Southeast Desert.

5 Third, also under CAA 

 

plan or plan revision (or part thereof), area designation, redesignation, 

classification, or reclassification was in error, the Administrator may in 

the same manner as the approval, disapproval, or promulgation revise such 

action as appropriate without requiring any further submission from the 

State. Such determination and the basis thereof shall be provided to the 

State and public.” We interpret this provision to authorize the Agency to 

make corrections to a promulgated regulation when it is shown to our 

satisfaction that (1) we clearly erred in failing to consider or 

inappropriately considered information made available to EPA at the time of 

the promulgation, or the information made available at the time of 

promulgation is subsequently demonstrated to have been clearly inadequate, 

and (2) other information persuasively supports a change in the regulation. 

See 57 FR 56762, at 56763 (November 30, 1992). 

5 Sections 107(d)(3)(A)-(C) provide that EPA may initiate the redesignation 

process “on the basis of air quality data, planning and control 

considerations, or any other air quality-related considerations the 

Administrator deems appropriate,” and “promulgate the redesignation, if any, 

of the area or portion thereof.” CAA section 107(d)(3) does not refer to 

Indian country, but consistent with EPA’s discretionary authority in CAA 

sections 301(a) and 301(d)(4) to directly administer CAA programs, and 

protect air quality in Indian country through federal implementation, EPA is 

authorized to directly administer sections 107(d)(3)(A)-(C) and redesignate 
8

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

sections 107(d)(3)(A)-(C), 301(a) and 301(d), we proposed to 

revise the boundaries of the South Coast to designate the 

Morongo Reservation as a separate nonattainment area for the 

1997 eight-hour ozone standard and to classify the Morongo 

Reservation as “Severe-17,” i.e., consistent with its original 

classification when it was included in the South Coast.

In proposing the second and third actions described above,

we applied the principles set forth in EPA’s policy (referred to 

herein as the “Tribal Designation Policy”) for establishing 

separate air quality designations for areas of Indian country.6

Under the Tribal Designation Policy, where EPA receives a 

request for a boundary change from a tribe seeking to have its 

Indian country designated as a separate area, the policy 

indicates that EPA will make decisions regarding these requests 

on a case-by-case basis after consultation with the tribe.

As a matter of policy, EPA believes that it is important 

for tribes to submit certain information, including, among other

 

Indian country areas.

6 See memorandum from Stephen D. Page, Director, EPA Office of Air Quality 

Planning and Standards, to EPA Regional Air Directors, Regions I-X, dated 

December 20, 2011, titled “Policy for Establishing Separate Air Quality 

Designations for Areas of Indian Country.” 
9

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

items, a formal request from an authorized tribal official;

documentation of Indian country boundaries to which the air 

quality designation request applies; and an analysis of a number 

of factors (referred to as a “multi-factor analysis,”) including 

air quality data, emissions-related data (including source 

emissions data, traffic and commuting patterns, population 

density and degree of urbanization), meteorology, 

geography/topography, and jurisdictional boundaries.7

In May 2009, the Chairman of the Morongo Tribe submitted 

the Tribe’s request for a separate ozone nonattainment area that 

included a multi-factor analysis addressing air quality data,

emissions data, meteorology, geography/topography, and 

jurisdictional boundaries.8 As such, although submitted prior to 

release of the Tribal Designation Policy, the Morongo Tribe’s

request for a boundary change to create a separate ozone 

nonattainment area, in conjunction with EPA’s additional 

analysis found in our technical support document (TSD) for the

 

7 See Tribal Designation Policy, pages 3 and 4. The Tribal Designation Policy 

also states that, in addition to information related to the identified 

factors, tribes may submit any other information that they believe is 

important for EPA to consider.

8 See letter from Robert Martin, Chairman, Morongo Band of Mission Indians, 

to Deborah Jordan, Director, Air Division, EPA Region IX, dated May 29, 2009.
10

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

proposed rule, represents the type of formal, official request 

and supporting information called for in the policy.

For the proposed rule, EPA noted that the Agency had 

recently reviewed the Morongo Tribe’s multi-factor analysis in 

connection with designating the Morongo Reservation as a 

separate nonattainment area for the 2008 ozone standard, and 

concluded that EPA’s analysis and recent decision to designate 

the Morongo Reservation as a separate nonattainment area for the 

2008 ozone standard was directly relevant to our consideration 

of whether to revise the boundaries of existing air quality 

planning areas to designate the Morongo Reservation as a 

separate nonattainment area for the one-hour and 1997 eight-hour 

ozone standards, and adopted the analysis and rationale 

previously relied upon by EPA in establishing the Morongo 

nonattainment area for the 2008 ozone standard. In doing so, we 

recognized that the three standards address the same pollutant, 

and thus share multi-factor analyses and considerations.

9

 

9 EPA also noted that in using many of the same factors found in the 2008 

ozone designations process, we are using factors that represent the most 

current information regarding meteorology, air quality, etc. in the area and 

therefore we believe serve the purposes of being representative for the 

previously established ozone standards.
11

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

Based on our review of air quality data, meteorology and 

topography, we observed that the Morongo Reservation experiences

transitional conditions characteristic of a mountain pass area 

through which pollutants are channeled from a highly urbanized 

metropolitan nonattainment area to the west to the relatively 

less developed nonattainment area to the east. Considering the 

three factors of air quality data, meteorology, and topography, 

EPA concluded that the Agency could reasonably include the 

Morongo Reservation in either the South Coast nonattainment area 

to the west, or the Southeast Desert nonattainment area to the 

east, as EPA has done in the past for the one-hour ozone 

standard and the 1997 eight-hour ozone standard. Alternatively, 

EPA could establish a separate nonattainment area for the 

Morongo Reservation as it did for the 2008 eight-hour ozone 

standard.10

Taking into account the relative amount of emissions 

associated with activities on the Morongo Reservation and 

corresponding minimal contribution to regional ozone violations, 

we believed that under the circumstances present here, it would 

 

10 See 77 FR 30088, dated May 21, 2012.
12

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

be appropriate to assign particular weight to the jurisdictional 

boundaries factor, consistent with the principles for 

designations of Indian country set forth in the Tribal 

Designation Policy. Moreover, we noted that the Tribe has 

invested in the development of its own air program, including 

operation of weather stations and an air monitoring station, and 

has expressed interest in development of its own permitting 

program. Under the jurisdictional boundaries factor, we found

that redesignation of the Morongo Reservation as a separate 

ozone nonattainment area for the one-hour ozone and 1997 eighthour ozone standards would be appropriate. Therefore, consistent 

with the designation of the Morongo Reservation for the 2008 

ozone standard, we proposed to revise the boundaries of the 

Southeast Desert one-hour ozone nonattainment area and the 

boundaries of the South Coast 1997 eight-hour ozone 

nonattainment area to designate the Morongo Reservation as a 

separate nonattainment area for the one-hour and 1997 eight-hour 

ozone standards.

Please see our proposed rule and TSD for additional

background information about the Morongo Reservation and the 
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This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

regulatory context, as well as a more detailed explanation of 

our rationale for the proposed actions. 

II. Comments and Responses

Our proposed rule provided for a 30-day comment period. 

During this period, we received comments from the South Coast 

Air Quality Management District (SCAQMD or “District”), the 

Coachella Valley Association of Governments (CVAG), and from a 

private citizen. All three comment letters oppose EPA’s proposed 

actions. We have summarized the comments and provide responses 

in the paragraphs that follow. 

SCAQMD Comment #1: EPA’s primary reason for wanting to 

reclassify Morongo as “severe-17” appears to be based on the 

fact that in “extreme” ozone areas, the major source threshold 

for VOC and NOx is 10 tons per year, whereas in “severe-17” areas 

it is 25 tons per year, thereby increasing the number of new or 

modified sources subject to the emissions offset requirement. 

EPA’s sole concern appears to be the availability of emission 

reduction credits (ERCs) for use as offsets. We are not sure 

that EPA’s rationale, which appears to be based on economic 

considerations, is a proper basis for reclassification under CAA 
14

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

section 107(d)(3). Also, EPA has misinterpreted the law relative 

to availability of offsets for sources to be located on Morongo 

lands. Because Morongo is included within the South Coast 

District, the special provisions in state law and District rules 

regarding the transfer and use of inter-district and inter-basin 

offsets are inapplicable. 

EPA Response to SCAQMD Comment #1: Our proposed rule proposed 

two separate actions – (1) an error correction (of a 2003 final 

action) and (2) boundary revisions (for one-hour and 1997 eighthour ozone NAAQS). EPA considered the issue of availability of 

ERCs for use as offsets for new or modified sources on the 

Morongo Reservation in the context of the proposed error 

correction action, not the boundary revisions action, and the 

statutory basis for consideration of this issue was CAA section 

110(k)(6), not section 107(d)(3). 

The District is correct that, in our proposed rule, we 

identified restrictions in state law and District rules 

regarding the availability of ERCs for use to comply with the 

emissions offset requirement for new or modified major sources 

on Morongo lands as one of the adverse regulatory consequences 
15

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

for the Tribe of our 2003 final action that persuaded us to 

propose the error correction. However, the availability of ERCs

was not the only adverse regulatory effect of our 2003 action. 

We recognized that the primary adverse regulatory effect was the 

lowering of the applicable VOC and NOx major source threshold 

from 25 tons per year to 10 tons per year that resulted from the 

2003 transfer of the Banning Pass (including the Morongo 

Reservation) from the Southeast Desert “severe” ozone 

nonattainment area to the South Coast “extreme” ozone 

nonattainment area. See 78 FR 51, at 54-55. The lower threshold 

meant that more new or modified sources proposed on Morongo 

lands would be considered “major” and thus subject to the 

emissions offset requirement in the first instance. Based on our 

understanding of the state and District restrictions on the use 

of emission reduction credits, we believed at the time of the 

proposed rule that the adverse regulatory effect of lowering the 

threshold was exacerbated by the uncertainty associated with the 

availability of ERCs generated outside of the Morongo 

Reservation to offset emissions of new or modified sources on 

the Morongo Reservation. 
16

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

We appreciate the District’s clarification of state law and 

District rules regarding inter-district and inter-basin transfer 

of ERCs. Based on the District’s clarification, we now 

understand that under state law and District rules governing 

inter-district or inter-basin transfer of ERCs, the meaning of 

“District” is geographic in nature and not jurisdictional, and 

thus, sources on Morongo lands are considered within the 

“District” for the purposes of using ERCs to meet the emissions 

offset requirement although such sources are not subject to 

District jurisdiction and thus may purchase and use ERCs 

generated anywhere in the South Coast without prior approval 

from the State or District.

In light of SCAQMD’s interpretation of state and District 

law, we no longer find that such law presents an obstacle to 

permitting of new or modified stationary sources on the Morongo 

Reservation. While ERCs may be available for such sources in the 

same manner as they are for sources in the South Coast outside 

of the Morongo Reservation, the more fundamental, adverse 

consequence of lowering the major source threshold from 25 tons 

per year to 10 tons per year remains a sufficient adverse 
17

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

consequence in and of itself to persuade us to take final action 

to correct our 2003 final action as it pertains to the one-hour 

ozone standard and as it pertains to the Morongo Reservation.

SCAQMD Comment #2: EPA’s current proposal is to separate the 

Morongo Reservation, which is currently within the South Coast 

Air Basin, as its own air quality planning area and to classify 

the area as “severe-17” for the one-hour and 1997 eight-hour 

ozone NAAQS. EPA should retain the Morongo Reservation in the 

South Coast Air Basin in accordance with EPA’s rationale for 

approving California’s request to revise the basin so that the 

Banning Pass – including Morongo – was included in the South 

Coast Air Basin. Now, as then, the Banning Pass – including 

Morongo – belongs in the South Coast Air Basin from an air 

quality perspective.

EPA Response to SCAQMD Comment #2: Our proposed rule includes 

two types of actions: an error correction and boundary 

revisions. The first action, under CAA section 110(k)(6), would 

correct the error by rescinding our 2003 boundary change action 

with respect to the Morongo Reservation and would thereby 

separate the Morongo Reservation from the South Coast and return 
18

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

the reservation back to the Southeast Desert ozone nonattainment 

area within which the reservation was located prior to EPA’s 

2003 action, but would not establish a separate Morongo ozone 

nonattainment area. The second type of action, under CAA section 

107(d)(3) and CAA sections 107(d)(3)(A)-(C), 301(a) and 301(d), 

would establish a separate Morongo ozone nonattainment area for 

the one-hour and 1997 eight-hour ozone NAAQS. Because we are 

finalizing both actions at the same time, the Morongo 

Reservation will not move back to the Southeast Desert 

nonattainment area but will instead become its own nonattainment 

area for the one-hour and 1997 eight-hour ozone standards. 

With respect to our error correction action, the District 

accurately cites EPA’s rationale for approving California’s 

request to revise the boundaries to transfer the Banning Pass 

from the Southeast Desert to the South Coast in 2003: “We 

believe that Banning is more similar to the South Coast than the 

Coachella area, and that it would support efficient planning and 

control to move the federal boundary of the South Coast Air 

Basin eastward to encompass the Banning Pass area.” 68 FR 48848, 

at 48850 (August 15, 2003). In our proposed rule, we explain 
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This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

that we do not find that we erred in 2003 in reviewing the 

State’s request for a boundary revision, but we failed to 

recognize that, to the extent that our 2003 action affected 

Indian country, our action involved more than a response to a 

State request under CAA section 107(d)(3)(D).

11 It also involved 

an EPA-initiated boundary change action under sections

107(d)(3)(A)-(C), section 301(a), and 301(d)(4) because the 

State is not approved to administer CAA programs in Indian 

country. 78 FR 51, at 54. Our proposed rule also explains how 

evaluation of the same criteria used to approve the State’s 

request would have differed for Indian country. Id. For 

instance, “planning and control considerations” while seamless 

from the standpoint of District jurisdiction over sources on 

state lands, would have differed for the Morongo Reservation 

because, at that time, EPA had not established a nonattainment 

NSR program for Morongo under which to review the greater number 

 

11 As noted above, Tribes are sovereign entities, and not political 

subdivisions of States. Typically, states are not approved to administer 

programs under the CAA in Indian country, and California has not been 

approved by EPA to administer any CAA programs in Indian country. With 

respect to the Morongo Reservation, EPA or the Tribe is the appropriate 

entity to initiate boundary changes, and in this instance, the Tribe 

initiated the boundary change through a request to EPA.
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This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

of new or modified sources deemed “major” by virtue of the 

boundary change. 

In effect, through its 2003 boundary change request, the 

State of California was voluntarily seeking to expand the 

geographic boundary of the area (the South Coast) subject to the 

most stringent requirements under the CAA. While EPA would have 

little reason to disapprove such a state request, there is also 

little reason for EPA to force Indian country located in that 

geographic area to be consistent with the State’s voluntary 

request. 

With respect to our proposed action to establish a separate 

Morongo ozone nonattainment area, we are not applying the same 

criteria that we used to evaluate the State’s boundary change 

request, but rather are applying the criteria set forth in our 

Tribal Designations Policy. See pages 55 and 56 of our proposed 

rule. As described in greater detail in our proposed rule, we 

observe that the Morongo Reservation experiences transitional 

conditions characteristic of a mountain pass area and that we 

could reasonably have included the Morongo Reservation in either 

the South Coast or the Southeast Desert or established a 
21

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

separate Morongo nonattainment area. Given that emissions 

associated with the Morongo Reservation are minimal, we believe 

that it is appropriate to assign particular weight to the 

jurisdictional boundaries factor and thus are taking final 

action today, consistent with our proposed action, to revise the 

boundaries of the South Coast and Southeast Desert nonattainment 

areas to designate the Morongo Reservation as a separate Morongo 

nonattainment area for the one-hour and 1997 eight-hour ozone 

standards. (The Morongo Reservation is already a separate 

nonattainment area for the 2008 ozone standard.) 

SCAQMD Comment #3: SCAQMD staff is concerned about the possible 

effects of separating and reclassifying the Morongo Reservation. 

EPA’s action can only be intended to facilitate the construction 

and operation of new or expanded major sources on Morongo lands. 

As the Banning Pass is directly upwind of the Coachella Valley, 

any significant new emissions on Morongo lands could adversely 

affect the Coachella Valley and its ability to maintain 

attainment of the ozone standard. EPA should analyze the air 

quality impacts of the proposed action on the Coachella Valley. 
22

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

Response to SCAQMD Comment #3: With respect to nonattainment 

New Source Review (NSR), the effect of our actions today will be 

an increase in the major source threshold for ozone precursors, 

i.e., VOC and NOx, from 10 and 25 tons per year, for new or 

modified stationary sources proposed for construction and 

operation on the Morongo Reservation. As such, new or modified 

stationary sources to be located at the Morongo Reservation with 

potentials to emit (PTE) from 10 to 25 tons per year of VOC or

NOx will not be subject to the major source requirements to meet 

the lowest achievable emission rate (LAER) and to offset 

emissions increases. Conversely, with or without our actions 

today, such sources with PTE 25 tons per year or more of VOC or 

NOx will continue to be subject to major source NSR, i.e., 

subject to both the LAER and offset requirements. Likewise, the 

regulatory requirements for sources with PTE less than 10 tons 

per year of VOC or NOx will also remain the same.

Thus, SCAQMD is correct that the proposed actions will 

facilitate construction and operation of new or modified 

stationary sources on the Morongo Reservation with PTE from 10 

to 25 tons per year of VOC or NOx to the extent that such sources 
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Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

will not be subject to the LAER and emissions offset 

requirements that otherwise would have applied to such sources 

if EPA were not to finalize today’s actions. Such sources could 

be constructed and operated at the Morongo Reservation with or 

without today’s actions, but the costs associated with 

construction and operation would be less if the source is not 

required to meet the LAER and emissions offset requirements.

To gain perspective on the potential downwind effects of 

one or more new or modified stationary sources with PTE from 10 

to 25 tons per year of VOC or NOx on the Morongo Reservation, it 

is useful to compare the emissions generated within the South 

Coast and Coachella Valley with those generated by sources 

associated with the Morongo Reservation under existing 

conditions, as shown in the following table.

_______________________________________________________________

COMPARISON OF EMISSIONS ASSOCIATED WITH SOUTH COAST, COACHELLA 

VALLEY, AND MORONGO RESERVATION UNDER EXISTING CONDITIONS

_______________________________________________________________

Emissions (tons per day)

South Coasta Coachella Valleyb

Morongo 

Reservationc
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steps to ensure the accuracy of this version, but it is not the official 

version.

Pollutant

Stationary 

Sources Total

Stationary 

Sources Total

Stationary 

Sources Total

VOC 257 593 2.0 17.7 0.058 0.54

NOx 92 758 0.7 45.2 0.066 3.05

a Emissions estimates are for year 2008 as presented in table 3-1A (page 3-

15) of the SCAQMD’s Final 2012 Air Quality Management Plan, December 2012.

b Emissions estimates are for year 2008 as presented for the Salton Sea Air 

Basin portion of Riverside County in CARB’s Almanac, Emission Projections 

Data, as published on CARB’s website. 

c The source for emissions estimates from sources associated with the Morongo

Reservation is table 1 (page 13) of the attachment to a letter from Robert 

Martin, Chairman, Morongo Band of Mission Indians, to Deborah Jordan, 

Director, Air Division, EPA Region IX, dated May 29, 2009. These data reflect 

2006 emissions, the most current year of emissions inventoried by the 

Morongo. We have no reason to expect that 2008 emissions associated with the 

Morongo Reservation would be significantly different than those estimated for 

2006, and thus, we believe that the emissions estimates for the Morongo 

Reservation provide a reasonable basis for comparison with the regional 

emissions estimates prepared for 2008. Based on the Morongo emissions 

inventory, on-road mobile sources account for approximately 85% to 90% of 

total Morongo-related emissions of VOC and NOx. Stationary sources associated 

with the reservation account for approximately 2% to 11% of the total with 

the balance emitted by area sources.

As shown in the above table, total emissions associated 

with the Morongo Reservation comprise 0.09% and 0.4% of the VOC 

and NOx emissions, respectively, associated with all sources 

within the South Coast. The effect of today’s actions relate to 

the stationary source fraction of Morongo’s emissions, which 

amount to 0.058 and 0.066 tons per day of VOC and NOx, 

respectively (or 21 and 24 tons per year of VOC and NOx, 

respectively), and which comprise only 0.01% and 0.009% of the 
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Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

VOC and NOx emissions, respectively, within the South Coast. 

Clearly, one or even several new or modified stationary sources 

within the 10 to 25 tons per year range would have minimal or no 

effect on Coachella Valley when compared to the overall 

pollutant burden passing through the Banning Pass from the South 

Coast to Coachella Valley. Any new or modified stationary source 

on the Morongo Reservation with a PTE large enough to impact 

Coachella Valley would almost certainly be subject to major 

source NSR and thereby subject to the LAER and emission offset 

requirements that would avoid such an impact.

SCAQMD Comment #4: We are concerned that EPA’s actions would 

create an uneven playing field between sources located within 

the Morongo boundaries and similar nearby sources in the South 

Coast Air Basin, including the remainder of the Banning Pass. 

Indeed, sources locating on Morongo lands would also have an 

unfair advantage over sources in the adjacent Coachella Valley, 

because under SCAQMD rules even minor sources of most pollutants 

must obtain offsets, and these rules apply within the Coachella 

Valley. Moreover, major sources in both areas are subject to 

SCAQMD’s BACT requirement, which is at least as stringent as 
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Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

federal LAER. While minor sources are subject to potentially 

less stringent BACT, and the minor source threshold in Coachella 

Valley is 25 tons per year, SCAQMD’s BACT Guidelines for minor 

sources are generally the most stringent in the nation and are 

distinguished from the BACT for major sources only in that 

economic and technical feasibility may be considered. In short, 

new and modified stationary sources on either side of the 

Banning Pass, as well as in the remainder of the Banning Pass, 

will be subject to more stringent standards than sources seeking 

to locate on Morongo lands. We are concerned that EPA’s proposed 

action will create a “pollution island” within the Morongo area. 

Our concern is based on real and substantial experiences in 

which facilities located on Tribal lands have created problems 

in the adjacent communities. For example, EPA and SCAQMD have 

taken enforcement action against facilities located on Cabazon

Tribal land near the city of Mecca in southeastern Riverside 

County.

Response to SCAQMD Comment #4: EPA notes that, with or without 

today’s action, new or modified sources on the Morongo 

Reservation are subject to the requirements of EPA’s Indian 
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Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

country NSR rule codified in CFR, Title 40, part 49 (76 FR 

38748, July 1, 2011), which are in some respects less stringent 

than the corresponding requirements under SCAQMD’s NSR rules 

that apply outside Indian country in both the South Coast and 

Coachella Valley. Specifically, under EPA’s Indian country NSR 

rule, emissions offsets are not required for new or modified 

minor sources. However, with respect to control technology 

requirements, while the Indian country NSR rule does not require 

new or modified minor sources to meet BACT or LAER level of 

control, the rule does require EPA (or the Indian Tribe in cases 

where a Tribal agency is assisting EPA with administration of 

the program through a delegation) to conduct a case-by-case 

control technology review to determine the appropriate level of 

control, if any, necessary to assure that the NAAQS are 

achieved, as well as the corresponding emission limitations for 

the affected emission units at the new or modified source. See 

40 CFR 49.154(c). In carrying out this determination, among 

other considerations, EPA takes into account “[t]ypical control 

technology or other emission reduction measures used by similar 

sources in surrounding areas.” 40 CFR 49.154(c)(1)(ii). Thus, 
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Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

the corresponding control technology requirements (i.e., minor 

source “BACT”) that SCAQMD applies to minor sources subject to 

its authority would inform EPA’s determination regarding control 

technology requirements and associated emission limitations for 

new or modified minor stationary sources on the Morongo 

Reservation. 

Nonetheless, we recognize that our actions today will 

broaden the differences in NSR requirements in that new or 

modified sources on the Morongo Reservation with PTE between 10 

and 25 tons per year of VOC or NOx will no longer be subject to 

LAER and emissions offset requirement that otherwise would have 

applied. We do not, however, foresee our actions as resulting in 

the “pollution island” effect about which SCAQMD is concerned. 

First, our actions today simply restore the major source 

threshold that had applied within the Morongo Reservation before 

our 2003 approval of California’s boundary change. The only 

difference between the regulatory context during the pre-2003 

period and the context that will exist upon the effective date

of today’s action is that new or modified stationary sources in 

the Banning Pass subject to SCAQMD jurisdiction with PTE between 
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Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

10 and 25 are now subject to major source “BACT,” which differs 

from minor source “BACT” under SCAQMD’s NSR rules, as explained 

by SCAQMD above, whereas such sources were subject to minor 

source “BACT” prior to our approval of California’s boundary 

change request in 2003. We have no evidence that the Morongo 

Reservation was a “pollution island” during the pre-2003 period

when the higher threshold applied, and the subtle differences

between then and now described above with respect to minor 

source BACT and major source BACT under SCAQMD rules argues 

against the possibility that the Morongo Reservation will become 

a “pollution island” as a result of our actions today. It is 

important to note that, even with our actions today, the 

applicable NSR requirements within the Morongo Reservation (at a 

25 tons per year major source threshold) would continue to be 

among the most stringent in the nation in keeping with today’s 

classification of the Morongo Reservation as a separate “severe” 

nonattainment area for the one-hour and 1997 ozone standards. 

SCAQMD Comment #5: EPA may not have adequate enforcement 

resources to ensure ongoing compliance on Tribal lands, even if 

the rules are equally stringent. For example, examination of the 
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Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

available information indicates that the Colmac Energy facility, 

which is identified as a major source under RCRA, was last 

inspected nearly 10 years ago. Tribes themselves also may not 

have adequate resources to ensure compliance. For example, in 

the mid-2000’s, the Torrez-Martinez reservation was identified 

as home to at least 20 illegal dumps. Health hazards were 

created as a result of some of the dump material catching fire. 

EPA, the federal courts, the SCAQMD, the Tribe, and other 

organizations were all involved in attempting to resolve these 

issues.

Response to SCAQMD Comment #5: EPA’s compliance and enforcement 

program extends to sources subject to EPA permitting 

jurisdiction, and to oversight of sources subject to the 

permitting jurisdiction of states, air districts, and tribes 

(where tribes have authority to issue such permits). The 

hypothetical prospect of new or modified stationary sources at 

the Morongo Reservation, whether permitted by EPA or by the 

Morongo Tribe (if and when the Tribe is authorized to issue such 

permits), will have essentially no effect on the scope of EPA’s 

nationwide compliance and enforcement program and thus 
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steps to ensure the accuracy of this version, but it is not the official 

version.

essentially no effect on the resources needed to adequately meet 

the demands of that program. Moreover, facility inspections, 

while important, represent just one method for acquiring 

information in connection with compliance and enforcement.12

Information requests under CAA section 114, for example, 

represent another method. Lastly, EPA does not believe that 

compliance issues that have arisen in the past with one tribe in 

any way portend compliance issues that may arise in the future 

with another tribe any more than one state’s past actions 

portend future actions taken by other states. 

SCAQMD Comment #6: We are concerned about the potential

precedential effect of this decision. 

Response to SCAQMD Comment #6: In this action, we are 

determining that our 2003 approval of California’s request to 

shift the boundary between the South Coast and Southeast Desert 

eastward and thereby include the Banning Pass in the South Coast 

 

12 To the extent that SCAQMD cites infrequent inspections at the Colmac 

Energy facility as an example of inadequate EPA enforcement resources, EPA 

notes that since 1989, under a monitoring and enforcement agreement to which 

SCAQMD, EPA, and the Cabazon Band of Mission Indians are signatories, SCAQMD 

has been allowed entry onto the Cabazon Reservation to monitor and inspect 

the Colmac Energy facility, and thus the frequency of EPA inspections cited 

by SCAQMD bears little relation to the extent of compliance oversight for the 

Colmac facility.
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was in error as it pertains to Indian country in the Banning 

Pass, and because the Morongo Tribe is the only Tribe with 

Indian country that was affected by the eastward shift of the 

boundary, the direct precedential effect of today’s actions is

quite limited. More generally, though, our 2003 action approved 

a State’s request, in effect, to expand the area subject to more 

stringent CAA requirements and conversely to shrink the area 

subject to less stringent CAA requirements. We should have 

recognized at the time, but did not, that EPA, not the State, 

was changing the boundary with respect to Indian country located 

within the expansion area and thereby imposing the more 

stringent CAA requirements on Indian country as well. States 

rarely voluntarily request boundary changes that increase the 

stringency of requirements for their sources in the affected

area, and thus, we have no reason to expect that similar 

circumstances culminating in our 2003 action and setting the 

stage for today’s actions exist elsewhere with respect to 

California or other states and other tribes. Lastly, we note 

that we have previously established a number of separate tribal 

air quality planning areas, see, e.g., the separate listings for 
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Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

several tribes located within Arizona and California in 40 CFR 

81.303 and 40 CFR 81.305, respectively, (i.e., particularly for 

the 1997 and 2008 eight-hour ozone standards), and thus, today’s 

action does not establish a new precedent but rather is 

consistent with previous actions. 

CVAG Comment #1: The creation of a separate air basin for the 

Tribe will result in a less stringent definition of a major 

source threshold for New Source Review and may result in a 

lesser level of air pollution controls as currently established 

through its designation in the South Coast Air Basin. This could 

potentially result in the creation of a “magnet” for, and give 

an unfair advantage to, facilities locating at the Morongo 

Reservation relative to facilities in the adjacent areas under 

State jurisdiction. 

EPA Response to CVAG Comment #1: CVAG is correct that the 

effect of today’s actions will raise the applicable major source 

threshold for VOC and NOx from 10 tons per year to 25 tons per 

year for new or modified stationary sources to be located on the 

Morongo Reservation. This means that a new or modified 

stationary source proposed on the Morongo Reservation after the 
34

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

effective date of today’s final actions with a PTE between 10 

and 25 tons per year of VOC or NOx will not be subject to the 

same control technology (i.e., lowest achievable control 

technology) and emission offset requirements that would have 

applied if we did not finalize our actions. As such, the 

applicable requirements for new or modified stationary sources 

on the Morongo Reservation will return to those that applied 

before EPA’s 2003 approval of California’s boundary change 

request. The applicable minimum requirements for new or modified 

sources on the Morongo Reservation will also mirror those that 

apply in Coachella Valley with respect to LAER and offsets, 

which adjoins the new Morongo air quality planning area to the 

east, although we recognize that California has chosen to go 

beyond statutory and regulatory minimum requirements with 

respect to other NSR requirements in both the South Coast and 

Coachella Valley. We have no evidence to suggest that the 

Morongo Reservation was a “magnet” for new emissions sources 

prior to our 2003 action to approve California boundary change 

request, when the less stringent major source threshold applied, 

nor do we have any reason to believe that the Reservation will 
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This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

become such a “magnet” as a result of EPA’s actions today that 

simply return the Morongo Reservation to the statutory and 

regulatory context that applied prior to EPA’s 2003 action.

CVAG Comment #2: Back in January 2011, CVAG sent a letter to 

EPA expressing concern regarding the Morongo Tribe’s request for 

a separate ozone nonattainment area. EPA staff agreed to keep 

CVAG and SCAQMD apprised of EPA’s actions on the Tribe’s request 

but did not follow-through. Instead, CVAG was informed of EPA’s 

January 2, 2013 proposed rule through another party. In May 

2012, EPA designated the Morongo Reservation as a separate 

nonattainment area for the 2008 ozone standard. EPA is using key 

findings from that decision as the basis for their current 

proposed action. This designation action was again done without 

notification to or consultation with CVAG or the SCAQMD, 

although the proposed rule at 78 FR 55 stated that this decision 

will be made “after all necessary consultation with the Tribe 

and, as appropriate, with the involvement of other affected 

entities.” In addition, in footnote 15 of the proposed rule, it 

states “EPA has consulted with the Tribe several times about 

this matter.” This dangerously “paves the way” for the proposed 
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steps to ensure the accuracy of this version, but it is not the official 

version.

action relative to the one hour and 1997 eight hour ozone 

standards.

EPA Response to CVAG Comment #2: CVAG is correct that EPA has 

adopted the analysis and rationale relied upon by EPA in 

establishing the Morongo nonattainment area for the 2008 ozone 

standard in support of EPA’s proposal to revise the boundaries 

of the Southeast Desert (which includes Coachella Valley) and 

the South Coast to designate the Morongo Reservation as a 

separate nonattainment area for the one-hour and 1997 eight-hour 

ozone standards. See pages 55 and 56 of the proposed rule. 

CVAG objects to EPA’s failure to notify or consult with 

CVAG about either the designations for the 2008 ozone standard 

or the actions proposed by EPA on January 2, 2013. As to the 

designations for the 2008 ozone standard, the process is set 

forth in CAA section 107 and involves (1) notification by EPA to 

states of the requirement to submit recommendations of areas to 

be listed as nonattainment, attainment, or unclassifiable; (2) 

submittal to EPA of state recommendations; (3) review by EPA of 

the recommendations; and (4) notification by EPA to states of 

EPA’s intention to modify any state recommendation and provision 
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This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

of an opportunity to such state to demonstrate why such 

modification is inappropriate. EPA also provided a similar 

process for tribes to submit, and for EPA to review and modify, 

recommendations for their areas of Indian country. There is no 

requirement that EPA notify states concerning tribal 

recommendations related to Indian country or that EPA notify 

tribes of state recommendations related to lands under state 

jurisdiction. 

As to the proposed action to revise the boundaries of the 

Southeast Desert and South Coast to designate the Morongo 

Reservation as a separate nonattainment area for the one-hour 

and 1997 eight-hour ozone standard, EPA acknowledges that it 

agreed to keep CVAG apprised of our action and failed to followthrough prior to proposing this action on January 2, 2013. While 

EPA regrets the oversight, we note that such notification, other 

than through publication of the proposed and final rule in the 

Federal Register, is not required for the type of action that we 

proposed. 

In its January 7, 2011 letter to EPA, CVAG raised two 

specific substantive concerns in connection with Morongo’s May 
38

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

29, 2009 boundary change request: (1) inclusion of the Morongo 

Reservation in Coachella Valley, and resultant use of Morongo 

ozone monitoring data, could jeopardize Coachella Valley’s 

ability to meet the 1997 eight-hour ozone standard by the 

applicable 2019 attainment date; and (2) inclusion of the 

Morongo Reservation in Coachella Valley would impact Coachella 

Valley’s ability to meet PM10 objectives and to continue to 

attain PM2.5 standards. EPA’s decision to designate the Morongo 

Tribe as a separate nonattainment area rather than move the 

Reservation back into Southeast Desert (which includes Coachella 

Valley) alleviates both specific substantive concerns raised by 

CVAG in its January 7, 2011 letter to EPA. Please see our 

Response to SCAQMD Comment #3, above, for additional analysis 

concerning potential impacts on Coachella Valley of today’s 

final actions. 

Lastly, with respect to CVAG’s cautionary note concerning 

EPA’s consultation with the Tribe in connection with this 

action, we simply note that our proposed action, in part, 

derives from a request by the Morongo Tribe to create a separate 

nonattainment ozone area for the Tribe, and thus, it is 
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Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

perfectly natural and appropriate that EPA consult with the 

Tribe about such a matter prior to proposing action. EPA would 

do no less for the State if responding to a state request. EPA 

notes that consultation with the Tribe is also consistent with 

the government-to-government relationship between federallyrecognized tribes and the federal government.

CVAG Comment #3: The Coachella Valley is exposed to frequent 

gusty winds with the strongest and most persistent winds 

typically occurring immediately to the east of Banning Pass, 

which is noted as a wind power generation resource area. Given 

the geographic location of the reservation, to the Banning Pass 

and the Coachella Valley, the designation will most negatively 

impact the Coachella Valley’s air quality. Located in the 

Southeast Desert AQMA area, the Coachella Valley will still be 

required to meet the NAAQS whether we generate pollutants or 

they are transported to our area.

EPA Response to CVAG Comment #3: As explained in detail in EPA 

Response to SCAQMD Comment #3, EPA does not foresee any impact 

to air quality in Coachella Valley as a result of EPA’s actions 

to rescind our 2003 final action, as it pertains to the Morongo 
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This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

Reservation, and to revise the boundaries of the Southeast 

Desert (in which Coachella Valley is located) and South Coast to 

designate the Morongo Reservation as a separate nonattainment 

area for the one-hour and 1997 eight-hour ozone standards.

Please see EPA Response to SCAQMD Comment #3, above.

CVAG Comment #4: The Coachella Valley has spent decades and 

millions of dollars striving to achieve attainment for the PM10

NAAQS and we have been patiently awaiting redesignation of the 

valley for the federal PM10 standard. A separate air quality 

planning area may adversely impact our efforts.

EPA Response to CVAG Comment #4: EPA’s actions affect 

designations and classifications for the one-hour and 1997 

eight-hour ozone standards. Our actions do not affect 

designations or classifications associated with any other NAAQS.

Moreover, elevated PM10 levels in Coachella Valley, unlike the 

South Coast where PM10 exceedances are due primarily to PM10

precursor pollutants (derived from direct emissions of VOC, NOx

and other precursors), are “strongly tied to local fugitive dust 
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This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

problems.”

13 Thus, we have no reason to anticipate new or more 

frequent exceedances of the PM10 standard in the Coachella Valley 

due to the hypothetical increases in precursor VOC and NOx

emissions from construction and operation of new or modified 

stationary sources on Morongo lands with PTEs between 10 and 25 

tons per year.

CVAG Comment #5: In addition to the EPA’s proposed action, CVAG 

also does not want EPA to consider any reversal of its previous 

decision which moved the Morongo Reservation from the Southeast 

Desert AQMA to the South Coast Air Basin. Such a reversal would 

again adversely impact our efforts to attain our federal air 

quality standards. Since the Morongo Reservation experiences 

more severe ozone air quality than the Coachella Valley, it 

needs to stay in the South Coast Air Basin. Designations should 

not be made based on adverse regulatory consequences on the 

affected constituent. Rather, designations should be based on 

ambient air quality.

EPA Response to CVAG Comment #5: In our proposed rule, we 

 

13 See page 8-10 of the 2003 South Coast Air Quality Management Plan, August 

2003. EPA approved the 2003 Coachella Valley PM10 SIP on November 14, 2005 

(70 FR 69081.)
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This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

proposed to rescind the 2003 final action, as it pertains to the 

Morongo Reservation for the one-hour ozone standard, and to 

revise the boundaries of the Southeast Desert (Coachella Valley) 

and South Coast to designate the Morongo Reservation as a 

separate nonattainment area for the one-hour and 1997 eight-hour 

ozone standards. Our actions would not affect the designations 

or classifications of state lands, nor would they relocate the 

Morongo Reservation back to the Southeast Desert where it had 

been located prior to our 2003 final action. Thus, the ambient 

ozone conditions experienced on the Morongo Reservation would 

not be relevant in determining whether the Coachella Valley 

attained, or failed to attain, the ozone standards because only 

data from monitors located within Coachella Valley would be used 

for that purpose. In terms of the Coachella Valley’s potential 

emissions impacts on Morongo lands, the predominantly westerly

wind patterns place Coachella Valley downwind of Morongo lands 

and thus Coachella Valley sources do not significantly impact 

Morongo ozone air quality. For additional details, please see 

page 6 of the technical support document. With respect to the 

basis for our proposed error correction and proposed revision to 
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steps to ensure the accuracy of this version, but it is not the official 

version.

the boundaries, please see EPA Response to SCAQMD Comment #1,

above.

CVAG Comment #6: EPA does not have sufficient resources to 

ensure ongoing compliance on Indian lands or adequate field 

enforcement staff to monitor any new air quality planning area.

EPA Response to CVAG Comment #6: EPA’s compliance and 

enforcement program extends to sources subject to EPA permitting 

jurisdiction, and to oversight of sources subject to the 

permitting jurisdiction of states, air districts, and tribes 

(where tribes have authority to issue such permits). The 

hypothetical prospect of new or modified stationary sources at 

the Morongo Reservation, whether permitted by EPA or by the 

Morongo Tribe (if and when approved for such permits), will have 

essentially no effect on the scope of EPA’s nationwide 

compliance and enforcement program and thus essentially no 

effect on the resources needed to adequately meet the demands of 

that program. Moreover, CVAG provides no evidence that EPA 

resources are inadequate at the present time to address 

compliance or enforcement issues associated with emissions 

sources on the Morongo Reservation nor does CVAG explain how our 
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Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

proposed actions will result in an increase in compliance or 

enforcement costs to EPA.

Private Citizen Comment #1: The private citizen expresses 

support for SCAQMD’s and CVAG’s comments on the proposed rule, 

and adds that the proposed air quality planning area would be 

small, would be dominated by a single entity that controls its 

own development process, and has major air quality impacts in 

all directions affecting large populations. Further, the private 

citizen speculates that, in contrast to the current proposal, an 

air quality planning area dominated by a single corporation, 

rather than a single Tribe, would never be proposed. 

EPA Response to Private Citizen Comment #1: Please see 

responses above to comments from SCAQMD and CVAG. With respect 

to the size of the proposed area and impacts to surrounding 

areas, the proposed rule takes into account the minimal amount 

of emissions associated with activities on the Morongo 

Reservation and corresponding minimal contribution to regional 

ozone violations and we believe that in these circumstances it 

is appropriate to assign particular weight to the jurisdictional 

boundaries factor, and it is consistent with the principles for 
45

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

designations of Indian country set forth in the Tribal 

Designation Policy. See page 56 of the January 2, 2013 proposed 

rule. Lastly, we find the analogy to a corporation to be 

inapposite due to the fact that Tribes, unlike corporations, are 

sovereign entities and therefore have inherent authority to 

control their own development process, much like states do.

III. Final Action

Under CAA section 110(k)(6), EPA is taking final action to 

correct an error in a 2003 final action that revised the 

boundaries between nonattainment areas in Southern California 

designated under the CAA for the one-hour ozone NAAQS. EPA has 

determined that the Agency erred in the 2003 final action to 

change the boundary of the South Coast Air Basin, which enlarged

the basin to include all of the Banning Pass area. In taking 

that action, EPA failed to consider the presence of Indian 

country (i.e., the Morongo Reservation) located therein. EPA 

thus failed to consider the status of the Indian country under 

the appropriate statutory and regulatory provisions when it 

evaluated and acted upon the State’s boundary change request. 

EPA believes that its error resulted in regulatory consequences
46

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

for the Morongo Tribe that justify making a correction. Thus, 

EPA is rescinding the 2003 final action, as it pertains to the 

Morongo Reservation for the one-hour ozone standard. This action 

does not affect the designations and classifications of state 

lands.

Second, under CAA sections 107(d)(3)(A)-(C), 301(a) and 

301(d), EPA is taking final action to revise the boundaries of 

the Southeast Desert to designate the Morongo Reservation as a 

separate nonattainment area for the one-hour ozone standard and 

to classify the Morongo Reservation as “Severe-17,” i.e., 

consistent with its prior classification when it was included in 

the Southeast Desert.

Third, also under CAA sections 107(d)(3)(A)-(C), 301(a) and 

301(d), EPA is taking final action to revise the boundaries of 

the South Coast to designate the Morongo Reservation as a 

separate nonattainment area for the 1997 eight-hour ozone 

standard and to classify the Morongo Reservation as “Severe-17,”
47

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

i.e., consistent with its original classification when it was 

included in the South Coast.14

EPA is redesignating the Morongo Reservation as a separate 

air quality planning area for the one-hour ozone and 1997 eighthour ozone standards based on our conclusion that factors such 

as air quality data, meteorology, and topography do not 

definitively support inclusion of the Reservation in either the 

South Coast or the Southeast Desert air quality planning areas, 

that Morongo Reservation emissions sources contribute minimally 

to regional ozone concentrations, and that the jurisdictional

boundaries factor should be given particular weight under these 

circumstances.

As a result of these final actions, the boundaries of the 

Morongo nonattainment areas for the one-hour and 1997 eight-hour 

 

14 In our proposed rule (footnote #8 at 78 FR 53), we indicated that if we 

finalize our proposed action to revise the boundaries of the South Coast to 

designate the Morongo Reservation as a separate nonattainment area for the 

1997 eight-hour ozone standard, EPA would withdraw our proposed action to 

reclassify the Morongo Reservation to “extreme” for the 1997 eight-hour ozone 

standard (74 FR 43654, August 27, 2009). (In 2010, we deferred final 

reclassification with respect to the Morongo Reservation (and the Pechanga 

Reservation) when we took final action to reclassify the South Coast for the 

1997 eight-hour ozone standard (75 FR 24409, May 5, 2010).) Given today’s 

final action and consistent with our statement from the proposed rule, EPA is 

withdrawing our 2009 proposed reclassification action to the extent it 

relates to the Morongo Reservation in the Proposed Rules section of this 

Federal Register.
48

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

ozone standards will be the same as those for the Morongo 

nonattainment area for the 2008 ozone standard. Lastly, as of 

the effective date of this action, new or modified stationary 

sources proposed for construction on the Morongo Reservation 

will be subject to the NSR major source thresholds for “severe17” ozone nonattainment areas, rather than the more stringent 

thresholds for “extreme” ozone nonattainment areas.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 [58 FR 51735 (October 4, 

1993)], the Agency must determine whether the regulatory action 

is “significant” and therefore subject to OMB review and the 

requirements of the Executive Order. The Order defines 

“significant regulatory action” as one that is likely to result 

in a rule that may: (1) Have an annual effect on the economy of 

$100 million or more or adversely affect in a material way the 

economy, a sector of the economy, productivity, competition, 

jobs, the environment, public health or safety, or state, local, 

or tribal governments or communities; (2) create a serious 

inconsistency or otherwise interfere with an action taken or 
49

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

planned by another agency; (3) materially alter the budgetary 

impact of entitlements, grants, user fees, or loan programs or 

the rights and obligations of recipients thereof; or (4) raise 

novel legal or policy issues arising out of legal mandates, the 

President’s priorities, or the principles set forth in the 

Executive Order. Under Executive Order 12866 (58 FR 51735, 

October 4, 1993), this action is not a “significant regulatory 

action” and therefore is not subject to review by the Office of 

Management and Budget. For this reason, this 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). This action 

merely corrects an error in a previous rulemaking and 

redesignates certain air quality planning area boundaries, and 

thereby reinstates certain CAA designations and corresponding 

requirements to which the affected area had previously been 

subject.

B. Paperwork Reduction Act

This action does not impose an information collection 

burden under the provisions of the Paperwork Reduction Act, 44 
50

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

U.S.C. 3501 et seq. Burden means the total time, effort, or

financial resources expended by persons to generate, maintain, 

retain, or disclose or provide information to or for a Federal 

agency. This includes the time needed to review instructions; 

develop, acquire, install, and utilize technology and systems 

for the purposes of collecting, validating, and verifying 

information, processing and maintaining information, and 

disclosing and providing information; adjust the existing ways 

to comply with any previously applicable instructions and 

requirements; train personnel to be able to respond to a 

collection of information; search data sources; complete and 

review the collection of information; and transmit or otherwise 

disclose the information. This 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.). An 

agency may not conduct or sponsor, and a person is not required 

to respond to a collection of information unless it displays a 

currently valid OMB control number. The OMB control numbers for 

EPA’s regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act (RFA)
51

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

The Regulatory Flexibility Act (RFA) generally requires an 

agency to prepare a regulatory flexibility analysis of any rule 

subject to notice and comment rulemaking requirements under the 

Administrative Procedure Act or any other statute unless the 

agency certifies that this rule will not have a significant 

economic impact on a substantial number of small entities. Small 

entities include small businesses, small organizations, and 

small governmental jurisdictions. 

For purposes of assessing the impacts of today’s rule on 

small entities, small entity is defined as: (1) A small business 

as defined by the Small Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a city, county, town,

school district or special district with a population of less 

than 50,000; and (3) a small organization that is any not-forprofit enterprise which is independently owned and operated and 

is not dominant in its field. After considering the economic 

impacts of today’s rule on small entities, I certify that this 

action will not have a significant economic impact on a 

substantial number of small entities. This rule will not impose 
52

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

any direct requirements on small entities. EPA is correcting an 

error in a previous rulemaking and redesignating certain air 

quality planning area boundaries, and thereby reinstating

certain CAA designations and corresponding requirements to which 

the affected area had previously been subject. This action is 

intended to, among other purposes, facilitate and support the 

Morongo Tribe’s efforts to develop a tribal air permit program 

by re-instating, within the Morongo Reservation, the lessstringent New Source Review major source thresholds that had 

applied under the area’s previous “Severe-17” classification for 

the one-hour ozone standard and by aligning the boundaries for 

the Morongo nonattainment area for all three ozone NAAQS (i.e., 

the one-hour, the 1997 eight-hour and the 2008 ozone standards).

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 

(UMRA), P.L. 104–4, establishes requirements for Federal 

agencies to assess the effects of their regulatory actions on 

state, local, and tribal governments and the private sector. 

Under section 202 of the UMRA, EPA generally must prepare a 

written statement, including a cost-benefit analysis, for 
53

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

proposed and final rules with “Federal mandates” that may result 

in expenditures to state, local, and tribal governments, in the 

aggregate, or to the private sector, of $100 million or more in 

any one year. Before promulgating an EPA rule for which a 

written statement is needed, section 205 of the UMRA generally 

requires EPA to identify and consider a reasonable number of 

regulatory alternatives and adopt the least costly, most costeffective or least burdensome alternative that achieves the 

objectives of the rule. The provisions of section 205 do not 

apply when they are inconsistent with applicable law. Moreover, 

section 205 allows EPA to adopt an alternative other than the 

least costly, most cost-effective or least burdensome 

alternative if the Administrator publishes with the final rule 

an explanation why that alternative was not adopted. Before EPA 

establishes any regulatory requirements that may significantly 

or uniquely affect small governments, including tribal 

governments, it must have developed under section 203 of the 

UMRA a small government agency plan. The plan must provide for 

notifying potentially affected small governments, enabling 

officials of affected small governments to have meaningful and 
54

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

timely input in the development of EPA regulatory proposals with 

significant Federal intergovernmental mandates, and informing, 

educating, and advising small governments on compliance with the 

regulatory requirements. Today’s rule contains no Federal 

mandates (under the regulatory provisions of Title II of the 

UMRA) for state, local, or tribal governments or the private 

sector. The rule imposes no enforceable duty on any state, local 

or tribal governments or the private sector. In any event, EPA 

has determined that this rule does not contain a Federal mandate 

that may result in expenditures of $100 million or more for 

state, local, and tribal governments, in the aggregate, or the 

private sector in any one year. Thus, today’s rule is not 

subject to the requirements of sections 202 and 205 of the UMRA.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, 

August 10, 1999), requires EPA to develop an accountable process 

to ensure “meaningful and timely input by State and local 

officials in the development of regulatory policies that have 

federalism implications.” “Policies that have federalism 

implications” is defined in the Executive Order to include 
55

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

regulations that have “substantial direct effects on the States, 

on the relationship between the national government and the 

States, or on the distribution of power and responsibilities 

among the various levels of government.” This action 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, or 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 action would merely correct an 

error in a previous rulemaking and redesignate certain air 

quality planning area boundaries, and thereby reinstate certain 

CAA designations and corresponding requirements to which the 

affected area had previously been subject, and does not alter 

the relationship or the distribution of power and

responsibilities established in the Clean Air Act.

F. Executive Order 13175: Consultation and Coordination With 

Indian Tribal Governments

Executive Order 13175, entitled “Consultation and 

Coordination with Indian Tribal Governments” (65 FR 67249, 
56

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

November 9, 2000), requires 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 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.” Under section 5(b) of Executive Order 13175, EPA may 

not issue a regulation that has tribal implications, that 

imposes substantial direct compliance costs, and that is not 

required by statute, unless the federal government provides the 

funds necessary to pay the direct compliance costs incurred by 

tribal governments, or EPA consults with tribal officials early 

in the process of developing the proposed regulation. Under 

section 5(c) of Executive Order 13175, EPA may not issue a 

regulation that has tribal implications and that preempts tribal 

law, unless the Agency consults with tribal officials early in 

the process of developing the proposed regulation. 
57

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

EPA has concluded that this action would have tribal 

implications. In 2009, the Morongo Tribe requested that EPA 

create a separate area for the Morongo Reservation in part due 

to the adverse regulatory impacts resulting from the Agency’s 

2003 boundary change action. EPA consulted with representatives 

of the Morongo Tribe prior to, and following, the Tribe’s 2009 

boundary change request, concerning the issues covered herein.

In today’s action, EPA is responding to the Tribe’s 2009 

boundary change request and is taking final action that would 

eliminate the adverse regulatory impacts arising from EPA’s 2003 

boundary change action. As described herein, we agree with the 

Tribe that the boundary should be corrected to reflect their 

concerns. This action will neither impose substantial direct 

compliance costs on tribal governments, nor preempt tribal law. 

Rather, the proposed action would relieve the Tribe of the 

additional requirements that flowed from the boundary change and 

corresponding change in CAA designations and classifications. 

Thus, the requirements of sections 5(b) and 5(c) of the 

Executive Order do not apply to this rule.
58

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

G. Executive Order 13045: Protection of Children From 

Environmental Health and Safety Risks

Executive Order 13045: “Protection of Children from 

Environmental Health Risks and Safety Risks” (62 FR 19885, April 

23, 1997) applies to any rule that: (1) is determined to be 

“economically significant” as defined under Executive Order 

12866, and (2) concerns an environmental health or safety risk 

that EPA has reason to believe may have a disproportionate 

effect on children. If the regulatory action meets both 

criteria, the Agency must evaluate the environmental health or 

safety effects of the planned rule on children, and explain why 

the planned regulation is preferable to other potentially 

effective and reasonably feasible alternatives considered by the 

Agency. This rule is not subject to Executive Order 13045 

“Protection of Children from Environmental Health Risks and 

Safety Risks” (62 FR 19885, April 23, 1997), because it is not 

economically significant as defined in Executive Order 12866, 

and because the Agency does not have reason to believe the 

environmental health or safety risks addressed by this rule 

present a disproportionate risk to children.
59

This document is a prepublication version, signed by Jared Blumenfeld, 

Regional Administrator, EPA Region 9, on September 4, 2013. We have taken 

steps to ensure the accuracy of this version, but it is not the official 

version.

H. National Technology Transfer Advancement Act

Section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 (“NTTAA”), Public Law No. 104–113, 12(d) 

(15 U.S.C. 272 note) directs EPA to use voluntary consensus 

standards in its regulatory activities unless to do so would be

inconsistent with applicable law or otherwise impractical. 

Voluntary consensus standards are technical standards (e.g., 

materials specifications, test methods, sampling procedures, and 

business practices) that are developed or adopted by voluntary 

consensus standards bodies. The NTTAA directs EPA to provide 

Congress, through OMB, explanations when the Agency decides not 

to use available and applicable voluntary consensus standards. 

This rule does not involve establishment of 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 to this action.

I. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and Low-Income 

Populations

Executive Order 12898 (59 FR 7629 (February 16, 1994))
60

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. 

EPA has determined that this action will not have 

disproportionately high and adverse human health or 

environmental effects on minority or low-income populations 

because it does not directly affect the level of protection 

provided to human health or the environment. In this action, EPA 

is taking final action to correct an error in a previous 

rulemaking and redesignate certain air quality planning area 

boundaries, and thereby reinstate certain CAA designations and 

corresponding requirements to which the affected area had 

previously been subject.

J. Congressional Review Act

The Congressional Review Act, 5 U.S.C. section 801 et seq., 

as added by the Small Business Regulatory Enforcement Fairness 

Act of 1996, generally provides that before a rule may take 
61

effect, the agency promulgating the rule must submit a rule 

report, which includes a copy of the rule, to each House of the 

Congress and to the Comptroller General of the United States. 

EPA will submit a report containing this rule and other required 

information to the U.S. Senate, the U.S. House of 

Representatives, and the Comptroller General of the United 

States prior to publication of the rule in the Federal Register. 

A major rule cannot take effect until 60 days after it is 

published in the Federal Register. This action is not a “major 

rule” as defined by 5 U.S.C. section 804(2).

K. Petitions for Review of this Action

Under section 307(b)(1) of the Clean Air Act, petitions for 

judicial review of this action must be filed in the United 

States Court of Appeals for the appropriate circuit by [FEDERAL 

REGISTER OFFICE: insert date 60 days from date of publication of 

this document in the Federal Register]. Filing a petition for 

reconsideration by the Administrator of this final rule does not 

affect the finality of this rule for the purposes of judicial 

review nor does it extend the time within which a petition for 

judicial review may be filed, and shall not postpone the 

effectiveness of such rule or action. This action may not be 

challenged later in proceedings to enforce its requirements. 
62

(See section 307(b)(2).)

List of Subjects in 40 CFR Part 81

Environmental protection, Air pollution control, 

Intergovernmental relations, National parks, Ozone, Wilderness 

areas.

__________________ ________________________

Dated: Jared Blumenfeld,

Regional Administrator,

Region IX.
63

Part 81, chapter I, title 40 of the Code of Federal 

Regulations is amended as follows:

PART 81--[AMENDED]

1. The authority citation for part 81 continues to read as 

follows:

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

Subpart C – [AMENDED]

2. Section 81.305 is amended as follows:

a. In the table for “California-Ozone (1-Hour Standard)” by 

revising the entry for “Los Angeles-South Coast Air Basin Area” 

and by adding a new entry for “Morongo Band of Mission Indians;”

b. In the table for “California—Ozone (8-Hour Standard)” by 

revising the entries for “Los Angeles-South Coast Air Basin, CA” 

and adding a new entry for “Morongo Band of Mission Indians.”

The revisions read as follows:

§81.305 California.

* * * * *

California – Ozone (1-Hour Standard)4

Designated Area

Designation Classification

Date1 Type Date1 Type

 * * * * * * * 

Los Angeles—South Coast Air 

Basin Area5

11/15/

90

Nonattainment 11/15/

90

Extreme.
64

 Los Angeles County (part) 11/15/

90

Nonattainment 11/15/

90

Extreme.

That portion of Los 

Angeles County which lies 

south and west of a line 

described as follows: 

1. Beginning at the Los 

Angeles-San Bernardino 

County boundary and 

running west along the 

Township line common to 

Township 3 North and 

Township 2 North, San 

Bernardino Base and 

Meridian;

2. then north along the 

range line common to 

Range 8 West and Range 

9 West;

3. then west along the 

Township line common to 

Township 4 North and 

Township 3 North;

4. then north along the 

range line common to 

Range 12 West and Range 

13 West to the 

southeast corner of 

Section 12, Township 5 

North and Range 13 

West;

5. then west along the 

south boundaries of 

Sections 12, 11, 10, 9, 

8, and 7, Township 5 

North and Range 13 West 

to the boundary of the 

Angeles National Forest 

which is collinear with 

the range line common 

to Range 13 West and 

Range 14 West;

6. then north and west 

along the Angeles 

National Forest 

boundary to the point 

of intersection with 

the Township line 

common to Township 7 

North and Township 6 

North (point is at the 

northwest corner of 

Section 4 in Township 6 
65

North and Range 14 

West);

7. then west along the 

Township line common to 

Township 7 North and 

Township 6 North; 

8. then north along the 

range line common to 

Range 15 West and Range 

16 West to the 

southeast corner of 

Section 13, Township 7 

North and Range 16 

West;

9. then along the south 

boundaries of Sections 

13, 14, 15, 16, 17, and 

18, Township 7 North 

and Range 16 West;

10. then north along the 

range line common to 

Range 16 West and Range 

17 West to the north 

boundary of the Angeles 

National Forest 

(collinear with the 

Township line common to 

Township 8 North and 

Township 7 North);

11. then west and north 

along the Angeles 

National Forest 

boundary to the point 

of intersection with 

the south boundary of 

the Rancho La Liebre 

Land Grant;

12. then west and north 

along this land grant 

boundary to the Los 

Angeles-Kern County 

boundary.

 Orange County 11/15/

90

Nonattainment 11/15/

90

Extreme.

 Riverside County (part) 11/15/

90

Nonattainment 11/15/

90

Extreme.

That portion of Riverside 

County which lies to the 

west of a line described 

as follows:

1. Beginning at the 

Riverside-San Diego 
66

County boundary and 

running north along the 

range line common to 

Range 4 East and Range 

3 East, San Bernardino 

Base and Meridian;

2. then east along the 

Township line common to 

Township 8 South and 

Township 7 South;

3. then north along the 

range line common to 

Range 5 East and Range 

4 East;

4. then west along the 

Township line common to 

Township 6 South and 

Township 7 South to the 

southwest corner of 

Section 34, Township 6 

South, Range 4 East;

5. then north along the 

west boundaries of 

Sections 34, 27, 22, 

15, 10, and 3, Township 

6 South, Range 4 East;

6. then west along the 

Township line common to 

Township 5 South and 

Township 6 South;

7. then north along the 

range line common to 

Range 4 East and Range 

3 East;

8. then west along the 

south boundaries of 

Sections 13, 14, 15, 

16, 17, and 18, 

Township 5 South, Range 

3 East;

9. then north along the 

range line common to 

Range 2 East and Range 

3 East to the 

Riverside-San 

Bernardino County line.

 San Bernardino County (part) 11/15/

90

Nonattainment 11/15/

90

Extreme.

That portion of San 

Bernardino County which 

lies south and west of a 

line described as follows:
67

1. Beginning at the San 

Bernardino-Riverside 

County boundary and 

running north along the 

range line common to 

Range 3 East and Range 

2 East, San Bernardino 

Base and Meridian;

2. then west along the 

Township line common to 

Township 3 North and 

Township 2 North to the 

San Bernardino-Los 

Angeles County 

boundary.

Morongo Band of Mission Indians6 11/15/

90

Nonattainment 11/15/

90

Severe-17.

 * * * * * * *

1 This date is October 18, 2000 unless otherwise noted.

2 An area designated as an ozone nonattainment area as of the 

date of enactment of the CAAA of 1990 that did not violate the 

ozone NAAQS during the period of 1987-1989.

3 This date is January 16, 2001.

4 The 1-hour ozone standard is revoked effective June 15, 2005 

for all areas in California. The Monterey Bay, San Diego, and 

Santa Barbara-Santa Maria-Lompoc areas are maintenance areas for 

the 1-hour NAAQS for purposes of 40 CFR part 51, subpart X.

5 Excludes Morongo Band of Mission Indians’ Indian country in 

Riverside County.

6 Includes Indian country of the tribe listed in this table. 

Information pertaining to areas of Indian country in this table 

is intended for CAA planning purposes only and is not an EPA 

determination of Indian country status or any Indian country 

boundary. EPA lacks the authority to establish Indian country 

land status, and is making no determination of Indian country 

boundaries, in this table.

* * * * *

California – Ozone (8-Hour Standard)

Designationa Classification
68

Designated Area Date1 Type Date1 Type

 * * * * * * * 

Los Angeles—South Coast Air 

Basin, CA:d

.................. Nonattainment (

2) Subpart 2 / 

Extreme.

 Los Angeles County (part) .................. Nonattainment (

2) Subpart 2 / 

Extreme.

That portion of Los 

Angeles County which lies 

south and west of a line 

described as follows: 

Beginning at the Los 

Angeles-San Bernardino 

County boundary and 

running west along the 

Township line common to 

Township 3 North and 

Township 2 North, San 

Bernardino Base and 

Meridian; then north along 

the range line common to 

Range 8 West and Range 9 

West; then west along the 

Township line common to 

Township 4 North and 

Township 3 North; then 

north along the range line 

common to Range 12 West 

and Range 13 West to the 

southeast corner of 

Section 12, Township 5 

North and Range 13 West; 

then west along the south 

boundaries of Sections 12, 

11, 10, 9, 8, and 7, 

Township 5 North and Range 

13 West to the boundary of 

the Angeles National 

Forest which is collinear 

with the range line common 

to Range 13 West and Range 

14 West; then north and 

west along the Angeles 

National Forest boundary 

to the point of 

intersection with the 

Township line common to 

Township 7 North and 

Township 6 North (point is 

at the northwest corner of 

Section 4 in Township 6 

North and Range 14 West); 
69

then west along the 

Township line common to 

Township 7 North and 

Township 6 North; then 

north along the range line 

common to Range 15 West 

and Range 16 West to the 

southeast corner of 

Section 13, Township 7 

North and Range 16 West; 

then along the south 

boundaries of Sections 13, 

14, 15, 16, 17, and 18, 

Township 7 North and Range 

16 West; then north along 

the range line common to 

Range 16 West and Range 17 

West to the north boundary 

of the Angeles National 

Forest (collinear with the 

Township line common to 

Township 8 North and 

Township 7 North); then 

west and north along the 

Angeles National Forest 

boundary to the point of 

intersection with the 

south boundary of the 

Rancho La Liebre Land 

Grant; then west and north

along this land grant 

boundary to the Los 

Angeles-Kern County 

boundary.

 Orange County .................. Nonattainment (

2) Subpart 2 / 

Extreme.

 Riverside County (part) .................. Nonattainment (

2) Subpart 2 / 

Extreme.

That portion of Riverside 

County which lies to the 

west of a line described 

as follows: Beginning at 

the Riverside-San Diego 

County boundary and 

running north along the 

range line common to Range 

4 East and Range 3 East, 

San Bernardino Base and 

Meridian; then east along 

the Township line common 

to Township 8 South and 

Township 7 South; then 
70

north along the range line 

common to Range 5 East and 

Range 4 East; then west 

along the Township line 

common to Township 6 South 

and Township 7 South to 

the southwest corner of 

Section 34, Township 6 

South, Range 4 East; then 

north along the west 

boundaries of Sections 34, 

27, 22, 15, 10, and 3, 

Township 6 South, Range 4 

East; then west along the 

Township line common to 

Township 5 South and 

Township 6 South; then 

north along the range line 

common to Range 4 East and 

Range 3 East; then west 

along the south boundaries 

of Sections 13, 14, 15, 

16, 17, and 18, Township 5 

South, Range 3 East; then 

north along the range line 

common to Range 2 East and 

Range 3 East; to the 

Riverside-San Bernardino 

County line.

Pechanga Reservationc .................. Nonattainment (

2) Subpart 2 / 

Severe-17.

 San Bernardino County (part) .................. Nonattainment (

2) Subpart 2 / 

Extreme.

That portion of San 

Bernardino County which 

lies south and west of a 

line described as follows: 

Beginning at the San 

Bernardino-Riverside 

County boundary and 

running north along the 

range line common to Range 

3 East and Range 2 East, 

San Bernardino Base and 

Meridian; then west along 

the Township line common 

to Township 3 North and 

Township 2 North to the 

San Bernardino-Los Angeles 

County boundary.

Morongo Band of Mission Indianse .................. Nonattainment Subpart 2 / 
71

Severe-17.

 * * * * * * *

a Includes Indian Country located in each county or area, 

except as otherwise specified.

b The boundaries for these designated areas are based on 

coordinates of latitude and longitude derived from EPA Region 

9’s GIS database and are illustrated in a map entitled “Eastern 

San Diego County Attainment Areas for the 8-Hour Ozone NAAQS,” 

dated March 9, 2004, including an attached set of coordinates. 

The map and attached set of coordinates are available at EPA’s 

Region 9 Air Division office. The designated areas roughly 

approximate the boundaries of the reservations for these tribes, 

but their inclusion in this table is intended for CAA planning 

purposes only and is not intended to be a Federal determination 

of the exact boundaries of the reservations. Also, the specific 

listing of these tribes in this table does not confer, deny, or 

withdraw Federal recognition of any of the tribes so listed nor 

any of the tribes not listed.

c The use of reservation boundaries for this designation is 

for purposes of CAA planning only and is not intended to be a 

federal determination of the exact boundaries of the 

reservations. Nor does the specific listing of the Tribes in 

this table confer, deny, or withdraw Federal recognition of any 

of the Tribes listed or not listed.

d Excludes Morongo Band of Mission Indians’ Indian country in 

Riverside County.

e Includes Indian country of the tribe listed in this table. 

Information pertaining to areas of Indian country in this table 

is intended for CAA planning purposes only and is not an EPA 

determination of Indian country status or any Indian country 

boundary. EPA lacks the authority to establish Indian country 

land status, and is making no determination of Indian country 

boundaries, in this table.

1 This date is June 15, 2004, unless otherwise noted.

2 This date is June 4, 2010.

* * * * *