# South Coast Air Quality Management District 21865 Copley Drive, Diamond Bar, CA 91765-4178 (909) 396-2000 • www.aqmd.gov

via EPA Portalatlzttp:llwww.regulations.gov

Mr. Jared Blumenfeld RegionalAdministrator U.S. Environmental Protection Agency, Region 9 75 Hawthorne Street San Francisco, CA 94195 Office of the Executive Officer -BarryR. Wallerstein, D. Env. 909.396.2100,fax 909.396.3340 February 5, 2015

Re: "Approval ofTribalImplementation Plan andDesignation of Air Quality PlanningAreas; Pechanga Bandof Luiseno Mission Indians; ProposedRule" 80 Fed. Reg. 436 (Jan. 6, 2015); Docket Number EPA-R09-0AR-2014-0869 (comments due February 5, 2015)
Dear Mr. Blumenfeld:
This letterpresents the comments ofthe South Coast Air Quality Management District staff ("SCAQMD'') on EPA's proposal to (1) approve a boundary change to make the reservation of the Pechanga Band a separate air quality planning area for the 1997 8-hour ozone National Ambient Air Quality Standard (''NAAQS"), (2) approve Pechanga's maintenance plan for that standard, and (3) redesignate the Pechanga Reservation to attainment for the 1997 8-hour ozone standard. The Pechanga Reservation is currently a part ofthe South Coast Air Basin, which is designated as "extreme" nonattainment for the 1997 8-hour standard. The SCAQMD is the air district responsible for attaining the NAAQS within the remainder- ofthe South Coast Air Basin, which consists ofall ofOrange County andthe non-desert portions ofLos Angeles, Riverside, and San Bernardino Counties. Pechanga's proposed maintenance plan relies largely on future reductions in emissions in the remainder ofthe South Coast Air Basin to ensure continued maintenance ofthe 1997 8-hour ozone standard. The SCAQMD has a number ofconcerns with EPA's proposal.
These concerns, which are discussed in the attachment, are as follows: (1) the use ofmonitoring data from outside the areato determine the area's attainment status, (2) the discrepancy between monitored air quality trends at the Temecula and Pechanga monitors, (3) insufficient control measures in the maintenance pian, (4) unjustified reliance on control measures from outside the area which do not apply on Tribal lands, (5) potential errors in the emissions inventory,



## Cleaning the air that we breathe

...'"Jared Blumenfeld U. S. Environmental Protection Agency February 5, 2015 Page 2

(6) inadequacy ofthe contingencyplan, (7) inconsistency ofthe proposed action with EPA's "Policy for Establishing Separate Air Quality Designations for Areas ofIndian Country," and (8) inconsistencywith EPA'srationale for maintaining the remainder ofIndian Countrywithin the South CoastAirBasin. A detailed explanation ofourconcerns is attached.
Thank you for your consideration ofour comments. Ifyou have any questions, please feel free to contact me at 909-396-2100 orbwallerstein@agmd.gov.

BRW:BB:pa e/sharelbbllndian law/Pechanga Maintenance.doc

cc: Deborah Jordan, AirDirector, EPA Region 9 Ken Israels, EPA Region 9

### SCAQMD Comments on Pechanga Redesignation Request, 80 Fed.Reg. 436 (Jan. 6, 2015); Docket No. EPA-R09-0AR-2014-0869
Use ofMonitoringDatafrom Outside the Area to DetermineAttainment Status

EPA proposes to use air quality monitoring data from the Temecula station, operatedbythe South Coast Air QualityManagement District, to determine that the Pechanga area has attained the national ambient air quality standard for the 1997 1-hour ozone standard. At the same time, EPA proposes a boundary change that would take the Pechanga Reservation out ofthe South Coast AirBasin and place it in its own air quality control region. We are unaware ofany precedent for EPA to determine attainment status for an entire separate nonattainment area based
on monitors located outside that area-atleast where the data is being used to support redesignation from nonattainment to attainment, which carries a higherburden than merely extending an existing nonattainment area. Typically, EPA describes its monitoring requirements
as applying "inthe area." }'or example, EPA has stated that "adetermination ofwhether an area's air quality meets the one-hour ozone standard is generallybased upon three years of complete, quality-assured, and certified air quality monitoring data gathered at established State and Local AirMonitoring Stations ("SLAMS") in the nonattainment area and entered into the EPA's Air Quality System (AQS) database." 76 Fed. Reg. 82133, 82135 col. 2 (Dec. 30, 2011)

In addition, EPA's monitoring and air qualityregulations support this interpretation. For example, EPA defines "design value" as follows: "the calculated concentration according to the applicable appendix ofPart 50 ofthis chapter for the highest site in an attainment area or nonattainment area." 40 C.F.R. §58.1. Moreover, Appendix D ofPart 58 specifies that "Data from FRM, FEM, and ARM monitors for NAAQS will be used for comparing an area's air pollution against the NAAQS." (Appendix D, Section 1, subdivision 1.1(b).) Finally, EPA's position here seems inconsistent with its earlierposition in declining to grant the Pechanga Reservation an "attainment" designation for the 2008 ozone standard. (Document A01 in the Docket.) There EPA.stated: "As Pechanga does not currently have a regulatory monitor in its.areas ofIndian Country demonstrating that the NAAQS is being met, consistent with the EPA Tribal Designation Policy, EPA disagrees that Pechanga's Indian Country should be designated as a separate attainment area." 

### (!d., p. 6 of"Technical Analysis for Pechanga Band ofLuiseno Mission Indians ofthe Pechanga Reservation").

We cannot find any discussion ofprocedures to use when basing an area's redesignation from nonattainmentto attainment on monitors outside the area. Therefore, we conclude that EPA's regulations do not authorize such an approach. EPA needs to explainits legaljustification for such an. approach, and demonstrate why it will not lead to further attempts by areas within the SouthCoast AirBasin to secede from the Basin in orderto obtain the benefits ofa lower ozone classification or a redesignation to attainment. 

### Discrepancy between Monitored Air Quality Trends atTemecula and Pechanga Monitors

The Tribe maintains an ozone air quality monitor onreservation lands. However, the monitored data did not meet EPA's completeness criteria, so EPA proposes to use monitored air quality

1from the Temecula ozone monitor, maintained bythe South Coast Air QualityManagement District ("SCAQMD"), as a surrogate. 80 Fed. Reg. 440, col. 1. EPA concludes that the Temecula monitor is representative ofconditions on the reservation. EPAbases this conclusion
on observations that ozone levels appearto be higher farther north in Riverside County, and lower in northern San Diego County (Escondido). 

### !d., cols. 1, 2. Thus, it is assumed that actual air quality at Pechangawill be at least as clean as that measured at the Temecula monitor. EPA also notes that emissions onthe reservation itselfare very small, and concludes that transport from the South Coast is the primary cause ofozone violations at the reservation. 

### !d., col. 3. Preliminarily, we note that comparison with the Escondido monitordoes not appear appropriate to demonstrate a trend oflowerreadings as one moves south, because Escondido is located in a separate air basin, influencedbycoastal breezes, and separated from Pechangabymountains.
Moreover, EPA's analysis fails to note that while the Temecula monitor shows a trend of decreasing ozone levels, the Pechanga monitor for the past five years shows a trend ofincreasing
ozone levels, to the point that it mustbe doubted whetherthe Tribe can demonstrate that air quality will be maintained below the 1997 8-hour ozone standard for the 10 years required to approve a maintenance plan. Although EPA has noted in its Technical Support Document that Pechanga monitoring data from before a problem detected in 2011 was corrected cannotbeused for purposes ofNAAQS (Docket D-01, "December 18, 2014, "Technical Support DocumentBackground Paper-Memorandum to File", p. 4), EPA has not indicated that the 2008-2009 data
was biased low for anyreason. According to the "Ozone Redesignation Request and Maintenance Plan for the Pechanga Band ofLuiseno Mission Indians ofthe Pechanga Reservation Nonattainment Area," dated May 2014, ("RedesignationRequest") Appendix B, Tables B-1 and B-2, the 8-hour standard fourth highest daily maximum ozone readings at Temecula and Pechanga are as follows (in parts per million):

MonitorName Date Value 3-year average (parts permillion) (2011-2013) Temecula 2011 0.083 2012 0.077 2013 0.074 0.078

MonitorName Date Value 3-year average (parts per million) (2011-2013) Pechanga 2008 I 0.053 2009 0.047 2010 no data submitted2 2011 0.072 2012 0.075 2013 0.074 0.074

1 data for one-halfyear only 2 document notes that EPA had questioned Pechanga data for at least 20I0

2Thus, the Pechanga data shows an upward trend between 2009 and 2013. As discussed below,
even ifthe 2008-2009 data from the Pechanga monitor is ignored, the trend is upward from 2011 to 2014 (0.072 to 0.079) while it is downward at Temecula (0.083 to 0.078)(ormore)

In EPA's proposal, partial data for 2014 is provided. Although only part ofthe year is available, the trend continues to show increasing levels at Pechanga:

Temecula: 2014 0.065 (January-March) Pechanga: 2014 0.079 (January-June)

80 Fed. Reg. 443, n. 28.

The low number for Temecula is expected to rise for the remainder ofthe year since this data only covers Januarythrough March, which does not include the primarypart ofthe ozone season. (Technically the ozone season in California is the entire year, butmost high levels are experienced in the period Maythrough October.) Indeed, preliminary SCAQMD data indicates a fourth-highest 8-hourozone level at Temecula of0.078 for 2014. Bythe same token, however, the monitored ozone level for Pechanga is also likely to rise since the reported data above only
covers January through June, or onlypart ofthe ozone season, excluding the months inwhich higher levels are typically experienced.
Thus, while EPA notes that the Pechanga data is consistently as low as orlower than the Temecula data as support for its conclusion that the Pechanga area has attained and will maintain the standard, 

### Id. n. 27, EPA ignores the fact that the Temecula data shows a downward trend while the Pechanga data shows an upward trend. And in 2014 Pechanga data actually appears to record higher ozone levels locally than at Temecula. EPA uses 0.077 as·the design value for Pechanga, based onthe Temeculamonitor. But ifozone levels in the Pechanga area are in fact increasing by even 0.02 parts permillion per year (as the 2011-2014 trend would indicate), Pechanga has not demonstrated that it will maintain levels below the standard for the next 10 years.
We recognize that EPA states that the Pechanga data is incomplete. Nevertheless, there is nothing about databeing incomplete that would inherently explain the contrasting monitored data. The Temecula station reflects a largely decreasing trend, as would be expected according to EPA's analysis ofSouth Coast emission trends. But the Pechanga data shows an increasing trend, despite EPA's claim that its air quality is entirely dependent on South Coast emissions and transport. EPA cannot reasonably rely on the fact that the Pechanga data is (at leastbefore 2014) equal to orlowerthan the Temecula data without also acknowledging that the same data shows a trend ofincreasing ozone pollution levels. EPA needs to provide a reasoned explanation demonstrating that this observed increasing trend is not real, and that Pechanga ozone levels are actually decreasing as would be expected, orEPA's analysis is insufficient to show that the area has attained orwill maintain the ozone standard.



### 3

### Insufficient Control Measures in Maintenance Plan

The Tribe has chosen not to include any local control measures in its maintenance plan. 80 Fed. Reg. at 443, col. 3. According to EPA, the Tribe is not required to actually include any local control measures. Instead, EPA may regulate emission sources that the Tribe chooses not to regulate ifEPA determines that such regulation is "necessary or appropriate" to adequateI y protect air quality. 

### !d. In this case, EPAhas decided that it is "necessary or appropriate" to establishregulations governing review and permitting ofnew ormodified sources on Indian

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

appropriate. 80 Fed. Reg. at443-444. EPA explains that although it is redesignating Pechanga
as "attainment" for the 1997**8~hour** ozone standard, it will remain subject to EPA's nonattainmentNSRrule because ofits status as "moderate"nonattainment for the 2008 ozone standard. 80 Fed. Reg. 449 col. 1. The threshold for majorNSR for "moderate" areas is 100 tons peryear ofVOC orNOx. 

### !d. EPA does not explain whether EPA's NSRrule for Indian Country (FIP) will apply onthe Pechanga Reservation to the extent that it applies to minor
sources. (The Indian CountryNSRFIP includes provisions for both major and minor source NSR, 76 Fed. Reg. 38748 (July 1, 2011).)

Even assuming that EPA's minor source NSR does apply, we are concerned that EPA may not have adequate resources to properly implement such a program. EPA's minor source NSRrule requires a "case-by-case" determination ofcontrol requirements for minor sources, which need not be consistent nationwide. 40 C.F.R. 49.154(c). Thus, EPA will berequired to expend a very significant amount ofresources for each minorNSRpermit, in orderto determine the proper control requirements. As discussed below, Pechangahas stated that one purpose ofseeking a separate attainment area and boundary change is to help it facilitate economic development. Therefore, EPA may well have bitten offmore than it can chew in committing to case-by-case control requirement review for new and modified sources on the Reservation.3
Moreover, we are concerned that sources will not necessarilybe subject to stringent air pollution requirements unless they are major sources subject to "lowest achievable emissions rate" ("LAER"). Accordingly, stringent air pollution rules maynot applyto sources onthe reservation unless theyhave a potential to emit of 100 tpy or more ofVOC orNOx (major source threshold for "moderate" ozone areas). SCAQMD is concerned that this single regulation (EPA's NSRrule) is insufficient to protect air quality on an ongoing basis. Underthis proposal, any source that has less than 100 tpy ofactual VOC orNOx emissions could take a "cap" to avoid majorNSR, so that it would notbe subject to stringent requirements, including LAER oroffsets. A source emitting 100 tpy ofVOC orNOx is
a very significant source compared to others in California. For example, 100 tpy ofNOx is over twice the NOx emissions ofthe AES Alamitos powerplant. (http://www3.aqmd.gov/webappl/aersearch/search.aspx: Year: 2013, Facility: AES Alamitos, Facility ID: 115394.) And 100 tpy ofVOC is approximately two-thirds the 2013 VOC emissions

3Although EPA can lighten its load by implementing "general permits," which will specify control requirements for certain common categories ofsources, EPA has yet to finalize any ofits proposed general permits for Indian Country.

4ofthe Ultramar (Valero) Los Angeles Refinery. (!d., Year: 2013, Facility: Ultramar, Facility ID: 800026.) Under EPA'sproposal, an unlimitednumberofsources as large as a majorpowerplant
orrefinery couldbebuilt onthe Reservation without requiring LAER oroffsets. Although EPAmayormay not impose strict controls under its minor source permittingprogram, there is no guarantee ofsuch a result, and even given the best ofintentions, EPA is likelyto be overwhelmedbyits new permittingresponsibilities, which maybothresult in inadequate permit evaluations and in sources constructing without a permit since they are impatient to receive a permit from EPA.

Ofcourse, it is difficult to sayhow much development is likelyto occur on the reservation in the future. But it is obvious that sources locating onthe Pechangareservation would have a very large competitive advantage comparedto other sources in the South Coast or San Diego Air Basins, including the Tribes included within those airbasins, and even over sources on the Morongo reservation, which currentlyhas a 25-tpy major source threshold.4 78 Fed. Reg. 58189, 58192 col. 3 (Sep. 23, 2013). The existence ofthis significant competitive advantage makes it much more likelythat sources will locate onthe Pechangareservation where feasible, to avoid the more stringent major source controls elsewhere.
Moreover, while the Pechangaredesignation request states in its emissions inventory section that "no significant new stationary sources are expected to be constructed ontribal lands" during the maintenance period (p. 32), the application does predict that local NOx emissions will increase by 33%. !d. More importantly, however, this prediction is contradicted byPechanga's statements in support ofits original 2009 request for a boundary change, which it admits was to support its efforts "to facilitate economic development." 75 Fed. Reg. 24409, 24413 col. 3, (May 5, 2010). Accordingly, while new major (100 tpy) sources may notbe expected, this does not preclude a proliferation ofminor sources-.some ofwhich couldbe almost as large as a major source iftheytook

## acap on emissions. And it appears that Pechanga does intend to try to attract new economic development, which would include new stationary sources.5

4 The threshold for BACT controls in the South Coast Air Basin is zero, and the offset threshold is 4 tpy. Rules 1303(a)( 1) and 1304(d), http://www.aqmd.govlhome/regulations/ru1es/scaqmd-rulebooklregulation-xiii. In San Diego, the BACTthreshold is 10 lbs/day (2600 lbs/year assuming 260 days,
or 1.3 tpy) (Ru1e 20.2(d)(i), http://www.sdapcd.org/rules/current_ru1es.html) and the major source threshold is 50 tpy (Rule 20.1, Table 20.1-6) (!d.).

5 The "Requestto Create a Separate Nonattainment Area for the Pechanga Indian Reservation or, Alternatively, Move the Northern Boundary ofthe San Diego Nonattainment Areato Include the Reservation ofthe Pechanga Band ofLuisero Indians" dated June 23, 2009 ("Request for Separate Area"), states that remaining in the South Coast AirBasin would "severely compromise the Tribe's capacity to engage in economic development..." (cover letter). Moreover, the Tribe predicts that "only

...a small set ofpotential future emitting sources['] []emissionswould be lower than 10 tpy ofboth NOx and VOC" (Request for Separate Area, p.3.) This suggests that the Tribe expects that most new stationary sources will exceed 10 tpyNOx orVOC.

5The much higher majorNSRthreshold on the reservation will have a natural tendencyto attract developmentthat can feasibly locate there, and coupled with Pechanga's avowed intent to facilitate economic development, presents a risk that new emissions will far exceed the projections contained in the maintenance plan. While these emissions will often affect San Diego, which is generally downwind ofthe Pechangareservation, there are also conditions in which these emissions can be blown into the South Coast AirBasin andpotentially affect southwestern Riverside County. Therefore, SCAQMD is concerned that the single airpollution measure-EPA'sNSRrule-applicable onthe reservation will be insufficient to prevent adverse effects from emissions growth onthe reservation. We urge EPA to, at minimum, apply its minor NSRprogram onthe reservation in a mannerthat would impose equivalent requirements as those applicable to minor sources inthe adjacent South Coast Air Basin, and to considerwhether additional measures applicable to specific sources would be appropriate to prevent ill effects from unlimited growth. SCAQMD's BACT ("best available control technology") determinations for minor sources are readily available in its BACT Guidelines, which are periodicallyupdated with approval ofthe Governing Board, and are available onthe SCAQMD's website. http://www.aqmd.gov/home/permits/bact/guidelines. For sources exceeding 10 tpy NOx orVOC, which would be "major" in the South Coast AirBasin but not in Pechanga, EPA should impose controls as similar as possible to LAER, to minimize the large competitive advantage to sources locating on Pechanga lands. 

### Unjustified Reliance on ControlMeasures from Outside the Area Which Do Not Apply
on TribalLands Except for the EPA's imposition ofnonattainmentNSR, the Pechanga maintenance planrelies almost entirely on control measures affecting sources outside the area and which do not apply on triballands.6 Underthe Clean AirAct ("CAA"), Section 107(d)(3)(E)(iii), EPA maynot redesignate an area to attainment unless it finds that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from "implementation ofthe applicable implementation plan and applicable Federal air pollution regulations and other permanent and enforceable reductions." EPA admits that the improvement at Pechanga "does not reflect emissions changes at Pechanga Reservation itself' and instead reflects reductions occurring in the South Coast. 80 Fed. Reg. at 445, col. 2. EPA considers that the rules producing these reductions, including CARB's motorvehicle and nonroad engine programs, qualify as "otherpermanent and enforceable reductions" within the meaning ofthe Act. 

### /d., col. 3.

We are not convinced that Congress meant to allow areas to rely entirely onreductions occurring in upwind areas, imposing minimalcontrols on local sources, when it used the phrase "other permanent and enforceable reductions." Instead, webelieve the reference to "other" such reductions was included primarilybecause ofthe potential that an area might implement permanent and enforceable reductions that were not part ofits approved implementation plan. It is not uncommon for the South Coast District to discover a measure that may not have been in its state implementation plan ("SIP"), but will contribute to attainment, and to adopt that measure.

6EPA also mentions the federal motor vehicle program as reducing emissions in the state ofCalifornia from vehicles driven from out ofstate. 80 Fed. Reg. at 445, col. 3.



### 6This is an example of"otherpermanent and enforceable reductions." We do recognize that downwind areas may have to rely to some extent onmeasures in upwind areas to attain the NAAQS, so that some reliance onmeasures outside the area maybe appropriate. Forexample, The Coachella Valleymayneed to rely onreductions in the South Coast AirBasin to attain applicable ozone standards. Butthe vast majority ofsuch controls also apply within the Coachella Valley, so that the local area is also doing its part to reach attainment. Webelieve EPA has gone beyond the reasonable application ofthis principle in this case, by allowing almost all the emission reductions to come from measures in the upwind area. Because the major source threshold for a "moderate''ozone area is so high (100 tpy), EPA's majorNSRprogram will likely nevercome into play. And there has been no experience with EPA's recently-promulgated minor source NSRprogram to provide any confidence that it will require meaningful local controls. Ifmeaningful local controls are not required, downwind areas maytake advantage of lax regulations to create a new locally-caused air qualityproblem.

We are very concerned about the precedential effect ofEPA's interpretation allowing an area to rely onupwind reductions, without significant local controls. EPA admits that these upwind area controls do not apply onthe Reservation. 80**F~d.** Reg. at446 col. 1. While the Pechanga Reservation atpresent apparently has few emission sources, this could change in the future. Moreover, once EPA establishes the precedent that an area may escape local controls byrelying
onupwind reductions, otherdownwind areas may ask EPA for the same treatment. EPAhas entered onto a "slippery slope" which couldresult in otherdownwind areas seeking to rely on South Coast controls and avoiding local controls.

We know that we have to implement all feasible measures, including Section 182(e)(5) measures;justto attain in the South Coast AirBasin, butwe are very concerned that downwind
areas coulduse EPA's interpretation to gain a large competitive advantage by avoiding stringent local controls. Werequest that EPA do the following: (1) provide support from the legislative history ofSection 107 orearlier interpretations byEPA that would allow an area to rely so substantially onupwind controls to meet its air quality goals, without significant local controls, and (2) ifit can provide such support for its interpretation, explicitly limit its interpretation to
areas where local emissions are extremely small.


### Potential Errorsin Emissions Inventory

This brings us to another area ofconcern with respect to the reasonableness ofrelying onupwind
area controls. EPAbases its interpretation inpart on its conclusion that the local emissions inventory in the Pechanga area is extremely small. 80 Fed. Reg. at 446, col. 3. However, we are concerned that this inventory likelyunderestimates actual emissions, and particularly future actual emissions. According to Pechanga's redesignationrequest, for consumerproducts and mobile sources, "emissions were scaled to South Coast AirBasinprojections, based onrelative population." (Request for Redesignation, p. 32.) This maypresent an unrealistically low estimate. According to EPA, the Pechangapopulation is approximately 800. 80 Fed. Reg. at 437, col. 2. In contrast, the Tribe states that up to 40,000 people visit the casino ontribal lands each week, which doubtless involves many more motor vehicles than those usedbythe

7Reservation's 800 or 500 residents. 7 (Pechanga's Application for Treatment as a State, p. 2, Aug. 19, 2014.) Since Pechanga states that its NOx emissions are expected to grow 33%based
on increased stationary source combustion associated with the casino, (Request for Redesignation, p. 32), it is logical to assume that operations at the casino, and associated motor vehicle traffic, are also likelyto increase. At minimum, EPA needs to ensure that Pechanga has notunderestimated existing mobile and area source emissions, and thus likelyunderestimated future emissions. Additional support for this concern is presented bythe fact that the local Pechanga monitorhas experienced a trend ofincreasing ozone levels, while the upwind Temecula monitorhas experienced a trend ofdecreasing ozone levels, as discussed above.

Ifindeed Pechanga has underestimated emissions occurring onthe reservation, this wouldbe an additional reason for requiring adequate controls on local sources. Since there is little the Tribe
can do about motor vehicle emissions, this mightrequire additional controls on stationary
sources. Inadequate Contingency Plan

As explainedbyEPA, Section 175A ofthe CAA requires that a maintenance plan include contingencyprovisions, as the EPA deems necessary, to promptly correct any violations ofthe national ambient air quality standard ("NAAQS") that occur after redesignation to attainment. 80 Fed. Reg. at 448 col. 1. Such provisions must include a requirement that the state will implement all measures within the area that were contained in the SIP for the areabefore redesignation as an attainment area. /d. Pechanga proposed to rely onthe California Air Resources Board Advanced Clean Cars Program ("ACCP"), which although already adopted, provides reductions that are surplus to those included in the baseline emissions estimate for the maintenance plan. /d., cols. 1 & 2. EPA states that because the ACCP does not apply on the reservation, it cannot qualify as a contingency measure for the Pechanga maintenance plan. 

### Id., col. 2. We believe that the same reasoning should prevent Pechanga from relying entirely on "otherpermanent and enforceable reductions" from outside the attainment area, as discussed above.
While rejecting Pechanga's proposed contingency measure, EPA determines that the emission reductions it supplies "justifythe lack ofspecific contingency measures" to be implemented by the Tribe in the event ofa violation. 80 Fed. Reg. at 448 col. 2. EPA fails to explain its legal theory that would allow the Tribe to fail to identify specific contingencymeasures. Inconsistency with EPA's "Policy for Establishing Separate Air Quality Designations for Areas ofIndian Country" SCAQMD is concerned that the proposal to grant a boundary change and create a separate attainment area for the 1997 8-hour ozone standard for the Pechanga Reservation is inconsistent with EPA's "Policyfor Establishing Separate Air Quality Designations for Areas ofIndian Country" dated December20,2011. (Memorandum from Stephen D. Page to Regional Air

7Pechanga's August 19, 2014 Application for Treatment as a State (p. 1) identified only 500 residents, which ifcorrect would exacerbate the potential inventory error.



### 8Directors) (hereinafter "EPAPolicy"). In that Policy, EPA states that where a tribe submits a request for a separate attainment area adjacent to a nonattainment area, as in this case, the Indian Country couldbe designated as a separate attainment area ifseveral factors are met. (EPA Policy, pp. 7, 8). One ofthese factors is thatthe "Indian country is separated from the adjacent nonattainment areabytopography orother geographic features." /d., p. 8. This condition is not met in this case. EPA states: "The terrain along the Riverside-San Diego countyboundary is complex,.butthere are no significant topographic barriers to air flow, suggesting thatthe Pechanga Reservation may experience similar air qualityto the surrounding airqualityplanning areas." 80Fed. Reg. at441, col. 1. Thus, the Pechanga lands are not "separated"by any feature
so as tojustifycreating a separate areaunder EPA'spolicy. EPAneeds to explain whyit fails to

·follow its ownpolicyinthis regard.8

EPA further states that it couldreasonably include Pechanga in eitherthe South Coast or San Diego planning areas, orcould establish a separate nonattainment area. Id,

.at 441. EPA states that in deciding which wayto go, it gives "particularweight" to the "jurisdictional boundaries" factor in its tribal designation policy. /d., col. 2. But, at least in part, EPA fails to explain what that means. Thereference tojurisdictional boundaries seems to referto the desire notto have a patchwork ofairqualityregions within the samepoliticaljurisdiction, orvice versa. (See EPA Policy, p. 3.) Butto the extentthatEPA is referring to the fact that a small part ofthe Pechanga lands are located in San Diego County, this factor should notbe determinative in this case. While the Pechanga lands have historicallybeen entirelywithin the South Coast Air Basin, the Tribe acquired a small portion ofland in San Diego Countyin 2008. 80 Fed. Reg. at438 col. 3. EPA should not allow Pechanga to therebif' "bootstrap" its way out ofthe South CoastAirBasin by acquiring lands in San Diego County.

As part ofits "jurisdictionalboundaries" rationale, EPA also relies onthe argument that "the Tribe has invested in its own air qualityprogram, including operation ofan ozonemonitoring station, and has expressed interest in development ofits ownpermittingprogram." 80 Fed. Reg. at441 col. 2. This reliance is inappropriate. The redesignation request is devoid ofanyplans to establish a tribal permitprogram or any other air quality regulation. 10 Moreover, although the Tribe operates its own ozone monitor, EPA has rejected the data from that monitor in

8 The Pechanga Reservation also fails to meet another ofEPA's criteria for a separate attainment area adjacent to a state nonattainrnent area, which is that the Tribe has its ownregulatory monitor demonstrating the NAAQS is being met. EPA Policy, p. 7. The Pechanga monitor is not "regulatory" because although it may have the objective of"NAAQS Comparison," it has not adequately demonstrated the quality assurance and datarequirements necessary for regulatory decision-making. EPA Policy, p. 6. While EPA has substituted Temecula monitoring station data in this case, this use must be qualifiedby the needto explainwhy the Pechanga monitor shows a trend toward increasing ozone at the same time as the upwind Temecula monitor shows a trend toward decreasing ozone levels, as discussed above.

9 The 119 acres ofland in San Diego County acquired in October2008 represent less than 2% ofthe Reservation's total 6,588 acres. Request for Separate Area, p. I. Shortly after acquiring the San Diego County land, the Tribe filed its Request for SeparateNonattainrnent Area with EPA onJune 23, 2009.

10While the Tribe's 2009 Request for Separate Area refers to plans for a local permit program, the Request for Redesignation does not mention any such plans, possibly due to EPA's adoption ofthe Indian CountryNSRRule. 76 Fed. Reg. 38748 (Jul. I, 2011).



### 9considering the current request. EPA's decision practically amounts to a determination that any tribe that operates a monitor-even ifit does not meet federal requirements-has gone a long waytoward meeting the "jurisdictionalboundaries" factor for granting a separate boundary and designation. This would be an unfortunate precedent and one easily seized upon byothertribes within the South Coast and San Diego. Indeed, South Coast staffhas received inquiries from another Tribe regarding the potential for the Tribe locating and operating a monitor on its own land, which could be the predicate for a similarrequest for a boundary change and redesignation. Such a request would contradi<,;t EPA's earlierconclusion that except for Morongo and Pechanga, all ofthe tribes withinthe South Coast geographical airbasin should remain in that air basin. Inconsistency with EPA's Rationale for Maintaining the Remainder ofIndian Country within the South CoastAir Basin SCAQMD is concerned that EPA's proposal is inconsistent with the principles articulated in EPA's decision to retain all otherTribes within the SCAQMD (except Morongo) as having the
same classification as the South Coast Air Basin. OnAugust 27,2009, EPAproposed to reclassify the South Coast AirBasin from Severe-17 to Extreme nonattainment for the 8-hour
ozone standard. Designation of Areas forAir QualityPlanningPurposes: California; San Joaquin Valley, South CoastAirBasin, Coachella Valley, andSacramento Metro Ozone NonattainmentAreas; Reclassification; (ProposedRule); 74 Fed. Reg. 43654 (Aug. 27, 2009). In that proposal, EPA explained why it was not appropriate to give Indian lands a separate classification from the larger airbasin in which they are located. While EPA subsequently issued its 2011 Policy for Establishing Separate Air QualityDesignationsfor Areas ofIndian Country, that Policy did not repudiate any oftheprinciples discussed in EPA's 2009 proposed rule. According to EPA, "boundaries ofnonattainment areas are drawn to encompass both areas with direct sources ofthe pollutionproblem as well as nearby areas in the same airshed

....EPA believes this approach best ensures public health protection from the adverse effects ofozone pollution." 75 Fed. Reg. 43654, 43659 col. 3. EPA concluded: "Therefore, it is generally counterproductive from an air quality and planning perspective to have a disparate classification for a land area located within the boundaries ofa nonattainment area, such as the Indian country contained in the ozone nonattainment areas at issue here." /d.

EPA went onto explain: "Furthermore, emissions changes in lower-classified ozone areas could hinderplanning efforts to attain the NAAQS within the overall area through the application of less stringent requirements relative to those that apply in the areaswith a higher ozone classification." 

### /d. Moreover, ''uniformity ofclassification throughout a nonattainment area is thus a guiding principle and premise when an area is being reclassified." /d. As a result, EPA proposed to reclassify all the othertribal lands within the South Coast AirBasin (except Morongo) as "Extreme"nonattainment for the 1997 8-hour ozone standard. 74 Fed. Reg. 43654, 43661 col. 1. EPA subsequently finalized this proposal with regard to the remainder ofthe tribal lands, deferring acting on reclassification ofthe Pechanga and Morongo lands, with the result that these two areas remained classified as "severe-17." Designation of Areas forAir Quality

·PlanningPurposes: California; San Joaquin Valley, South CoastAirBasin, Coachella Valley,

10andSacramento Metro 8-hour Ozone NonattainmentAreas; Reclassification (Final Rule); 75 Fed. Reg. 24409,24412 col. 1 (May 5, 2010). Now, EPAproposes to breakwith this precedentbygranting a boundary change and redesignating the Pechanga area as "attainment" for the 1997 ozone standard. While EPAmay argue that it has already set the precedentby its actions regarding the 2008 ozone standard, that does not explainwhy the rationale discussed above does not continue to applyto the Pechanga situation.
Conclusion

The SCAQMD staffbelieves that EPA's proposed action has notbeen adequately demonstrated to comply with the legal requirements applicable to redesignations to attainment and maintenanceplans. Further, EPA does not explain whyitbelieves its proposal to be consistent with the above-cited provisions ofthe EPAPolicy onredesignations for Indian Country, orthe principles set forth in EPA's earlier action retaining the remainderofIndian Country (except Morongo lands) within the South Coast AirBasin. Moreover, there is a significant question regarding whetherthe Temecula monitoring data is trulyrepresentative ofairquality onthe Pechanga Reservation, given the contradictorytrends in ozone measurements at the monitor located onPechangalands. There is also a potential that Pechangahas significantly underestimated on-reservation emissions from otherthan stationary sources, since theyhave been scaled from South Coastemissions based onpopulation, which may notbe appropriate. Finally, the SCAQMD is concernedthat EPA's proposed actionwill set an unfortunate precedent for otherNative American tribes to tryto secede from the South CoastAirBasin, thus gaining a significant competitive advantage and potentially attracting significant amounts ofnew emissions, andmay encourage other downwind areas to tryto rely on South Coast emission reductions, with minimal local controls, to demonstrate attainment intheir areas.

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